Constituitional Shop Shitlani (Printed)

National Law Institute University
Kerwa Dam Road, Bhopal

462044 Madhya Pradesh
India
CONSTITUTIONAL LAW I
PART I
Course Material compiled by

Miss Kuldeep Kaur (LL. B (HONS)) (University of London)
And Bar Finals (Lincoln’s Inn) (Barrister-at-Law)
INDEX
Constitutional Law I
Part 1
1. Course outline for Constitutional Law I……Pages 1-13.
2. Preamble to the Constitution of India……Pages 14.
3. Significance of fundamental rights………. Pages 15-42.
4. Article 12-Critical analysis and judicial interpretation……Pages 43-59.
5. Article 12-The concept of state action under article 12 of the Constitution of India …….
Pages 60-109.
6. The expanding scope of Article 12 of the Constitution of India and its recent
developments…. Pages 110-113.
7. Article 13 and pro tanto supremacy of the Constitution of India…Pages 114-119.
8. Article 14-Equality rights…..Pages 120-145.
9. Article 14-Legal aspect of equality…Pages 146-180.
10. Article 14-The promise of equality-A comparative analysis of the Constitutional
guarantee of equality in India and the USA…. Pages 181-221.
11. Article 19-Concept, meaning and scope of free speech and expression…Pages 222-262.
12. Article 19-Freedom of Expression…Page 263.
13. Article 19-Right to free speech in a censored democracy…. Pages 264-291.
14. Article 20 (3)-Law Commission of India-Article 20 (3) of the Constitution of India
and the right to silence…Pages 292-338.

The National Law Institute University, Bhopal
b. a. ll. b. (hons.)/B. Sc. LL. B. (Hons.) [Cyber Security]
Academic Year 2023 – 24
III Semester
CONSTITUTIONAL LAW I
Syllabus
Course TeacherS: KULDEEP KAUR
&
SAUBHAGYA BHADKARIA
*****
Introduction
Constitutional law is the body of rules, doctrines, and practices that govern the operation of
political communities. In modern times the most important political community has been the state.
Modern constitutional law is the offspring of nationalism as well as of the idea that the state must
protect certain fundamental rights of the individual. Every political community, and thus every
state, has a constitution, at least insofar as it operates its important institutions according to some
fundamental body of rules. By this conception of the term, the only conceivable alternative to a
constitution is a condition of anarchy. Nevertheless, the form a constitution may take varies
considerably. Constitutions may be written or unwritten, codified or uncodified, and complex or
simple, and they may provide for vastly different patterns of governance. In a
constitutional monarchy, for example, the sovereign’s powers are circumscribed by the constitution,
whereas in an absolute monarchy the sovereign has unqualified powers.
Constitutional Law articulates the principles determining the institutions to which the task of
governing is entrusted, along with their respective powers. But whether it concentrates
or disperses these powers, a constitution always contains at least the rules that define the structure
and operation of the government that runs the community. A Constitution may do more than define
the authorities endowed with powers to command. It may also delimit those powers in order to
secure against them certain fundamental rights of persons or groups. The idea that there should be
limits on the powers that the state may exercise is deeply rooted in Western political philosophy.
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Constitutional Law embodies the study of the fundamental principles of the Constitution. The
Constitution imparts validity to all ordinary laws. Ordinary laws that fail to comply with the
constitutional principles and values are deemed to be ultra vires the Constitution. The Constitution
constitutes three separate organs of the Government i. e. Legislator, Executive and Judiciary. The
Legislator enacts the law, the Executive implements them and the Judiciary adjudicates the law. The
Constitution also embodies the concept of limited government. All three organs of the government
perform different functions. The Judiciary is the guardian of the Constitution and the sole interpreter
of the text of the Constitution. It also performs the check and balance functions. The Supreme Court
of India while exercising its powers of judicial review under Articles 226 and 32 of the Constitution
can check on arbitrary powers of the State and struck down laws which do not comply with the
Constitution.
One of the fundamental aspects of Constitutional Law is that every organ of the government should
work together to achieve the objectives of the Constitution. The Preamble to the Constitution of
India is a brief introductory statement that sets out the guiding purpose and principles of the
document. Preamble basically is a declaration of the source of the Constitution, the statement of its
objectives, the date of its adoption and enactment, Preamble begins with a short statement of its
basic values and it contains the philosophy on which our Constitution is built. Preamble actually
embodies the spirit of the Constitution. It is a key to the minds of the draftsmen. It is also the soul of
the Constitution. The Preamble describes the source, nature, ideology, goals and objectives of the
Constitution.
The Constitution provides for a federal form of government. In a federation, there are two
governments – at the central level and at the state level. In India, the powers of the government are
divided between the central government and state governments. India has adopted the
Parliamentary system as found in Britain. In this system, the executive is responsible to the
legislature, and remains in power only as long and it enjoys the confidence of the legislature. The
Constitution of India provides for a parliamentary form of government. The majority party in the
Lower House (Lok Sabha) forms the government. The Council of Ministers is collectively responsible
to the Parliament. The Cabinet is the real executive head. In Presidential form of government, the
President is the executive head. In India, the President is only the nominal head.
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Constitutionalism refers to the act that defines that a country or state should be governed by
specific rules or the ruling document, i.e., the Constitution. A Constitution is a ruling document
within a country that defines the specific rules and behaviours to govern and rule the country. The
ideas of Constitutionalism and the Constitution are of the people and for the people. They work in
favour of the people to ensure the protection of their human rights. It is a philosophy that restricts
the government to some extent to rule the country in accordance to specific set of rules.
India is a democratic country, denoting that the government or ruling body should be represented
by the people of the country. And that selected representative works for the betterment of the
people as well as the country. Constitutionalism is the idea that ensures the laws restricting the
ruling body from wrongly exercising power.
As India is a democratic country, it has its own Constitution, which guides the government in ruling
the country in a better manner for the public’s welfare. The Constitution in India consists of the
fundamental laws and principles of the country written by Dr B. R. Ambedkar, who is known as the
father of the Indian Constitution. It was adopted on 26th November 1949 with the help of the
Constituent Assembly and was effected from 26th January 1950. It lays down the fundamental
framework and laws to run the country while following human rights.
The preamble is an introductory statement that defines the objectives and reasons behind a
legislative or rule. The preamble of the Indian Constitution declares the country to be a sovereign,
secular, socialist and domestic republic. The objective behind the preamble is to seek justice and
equal rights for the general public in the country. The preamble of the Indian Constitution is to
provide liberty to the general public in India. It denotes that all people are equal before the law and
should be served with equality.
Constitutionalism is the basic structure on which the governance of a country or state strictly
depends. Its importance cannot be ignored in any aspect. It is a set of norms that prevents the state
from abusing its power. It ensures that the people have liberty and get justice which is crucial for a
democratic country such as India. It ensures proper governance within the country or state as it puts
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restrictions on the overuse of state power, thereby protecting the rights of the democracy. It helps
in the better development and welfare in the developing countries as it denotes equal rights for all.
It ensures that the state is based on specific rules and guidelines, which states every person has the
right to human dignity.
It implies the elements which characterise the Constitution in India. Sovereignty-It initiates that the
government is free from any bias from any particular authority. In short, it ensures the government
is of the people, by the people, for the people. Supremacy of the Constitution and Rule of Law-It
denotes the country is run through rules, not authority or powers. No one can decide the
governance except the laws and regulations which have been already stated. Political Democracy-In
a democracy, individual rights and equality should be protected. It declares equal rights to all the
individuals within the country. Representative-limited Government-It declares the representatives
are selected through a proper election process by the people. They elect representatives for their
welfare, so they should be accountable and answerable to the general public for their actions.
Separation of Power-It divides the whole power into three branches, i.e., Executive, Legislative, and
Judiciary. This helps keep checks and balances in each area separately and in a better way. Police
Governed by Law and Judicial Control-It ensures the Police power should be judged by the Law and
Judicial control. Police have no right to harm the dignity of the people. An Independent Judiciary-
The independence of the Judiciary system ensures the freedom of the democratic power in India. It
means that the government is free to run the country if the laws support it.
Constitution and Constitutionalism share the same interest, but some basic differences still exist
between them. The Constitution is a written statement created by the government.
Constitutionalism is the idea or philosophy that governs through the rules and regulations stated in
the Constitution. The Constitution is considered as the prime law of the country, whereas
Constitutionalism is the act that allows the Constitution to function. The Constitution states the rules
and regulations to be followed, but Constitutionalism states the restrictions against the government.
A country can exist without the Constitution, whereas it can never exist without Constitutionalism as
it defines the laws and behaviour of governance
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The Constitution of India has some outstanding features which distinguish it from other
Constitutions. The framers of our Constitution studied other Constitutions, selected their valuable
features and put them with necessary modifications in our Constitution. The framers of the
Constitution of India did not aim at a completely new or original Constitution. They just wanted to
produce “a good and workable” Constitution. And they succeeded doing this. The fact that the
Constitution, for last 73 years, has been working satisfactorily is a testimony to its quality and utility.
While drafting the Constitutional Draft, several provisions were borrowed from
various written and unwritten Constitutions all over the world. Similarly, the Constitution as a whole
stand to its effect after having incorporated several unique features and provisions from several
other Constitutions.
British Constitution-Parliamentary Government, Rule of Law, Legislative procedures, single

citizenship, cabinet system, citizenship, prerogative writs, parliamentary privileges and
bicameralism. United States Constitution-Fundamental Rights, Independence of the Judiciary,
Judicial Review, Impeachment of President, removal of Supreme Court and High Court Judges, post
of Vice President. Irish Constitution-Directive principles of state policy, nomination of members to
Rajya Sabha, and method of election of President. Canadian Constitution-Federation with strong
Centre, vesting of residuary powers in the Centre, appointment of state governors by Centre and
advisory jurisdiction of Supreme Court. Australian Constitution-Concurrent List, Trade, Commerce
and Intercourse, joint sitting of both Houses of Parliament. Weimer Constitution of Germany-
Suspension of fundamental rights during emergency, Soviet Constitution (USSR, now Russia),
Fundamental Duties, ideals of justice (social, economic and political) in the Preamble. French
Constitution-Republic and ideals of liberty, equality and fraternity in the preamble. South African
Constitution-Constitutional procedure to amend the Constitution and election of members of Rajya
Sabha. Japanese Constitution-Procedures Established by Law.
Fundamental rights are fundamental because they are basic to the moral and spiritual development
of the individual and these rights cannot be easily abridged by the Parliament. The citizens enjoy six
fundamental rights, originally there were seven fundamental rights. One of them was taken away
from Part III of the Constitution by the Forty-fourth Amendment Act, 1978. As a result, the Right to
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Property is no longer a fundamental right. Since 1978, it has become a legal right. The idea of
fundamental rights has been borrowed from the American Constitution. Any citizen of India can seek
the help of High Court or Supreme Court of India if any of his fundamental rights is undermined by
the government or any institution or any other government.
Fundamental rights are justiciable in nature. (i.e. they are legally enforceable by the court of law).
These are not absolute in nature and are subject to some restrictions. Parliament can amend them
but not those provisions that form the “basic structure” of the Constitution. The Constitution of
India guarantees six fundamental rights to every citizen. These are right to equality, the right to
freedom, right against exploitation, right to freedom of religion, cultural and educational Rights and
right to constitutional remedies.
A new part IV (A) after the Directive Principles of State Policy was incorporated in the constitution by
the 42nd Amendment, 1976 for fundaments duties. Fundamental Duties did not form part of the
Constitution. Ten Fundamental Duties were inserted in Part IV by the Constitution 42nd Amendment
Act, 1976. A new Article – Article 51-A enumerates ten Fundamental Duties. These duties are
assigned only to citizens and not to non-citizens. These duties are not justifiable (i.e. These cannot
be enforced through the courts of law) The purpose of incorporating these duties in the Constitution
is just to remind the people that while enjoying their right as citizens, should also perform their
duties for rights and duties are correlative.
Directive principles of state policy are in the nature of directives to the government to implement
them for establishing social and economic democracy in the country. The Directive Principles of
State Policy are enumerated in Part IV of the Constitution. The framers of our Constitution took the
idea of having such principles from the Irish Constitution. These principles have been stated to be
fundamental in the governance of the country. They are instructions or directives from the
Constitution to the state and the government. It is the duty of the government to implement them.
Non-justiciable in nature (i.e. they are not legally enforceable by the court of law) but they are
nevertheless fundamental in the governance of the country. They promote social and economic
democracy. In general, the Directive Principles aim at building a Welfare State. These principles
provide the criteria with which we can judge the performance of the government.
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Course objectives
Basic objective of the course is designed primarily to assist the students in developing the
knowledge of constitutional doctrine and to acquaint him/her with the basic legal principles
underlying the Constitution of India. It is an attempt at finding answers to some of the most
basic questions, such as what is a Constitution. Why we need a Constitution? How is it
made? What should it contain? What are the various types of Constitutions? Concept of
State? Why fundamental rights are important to individuals? Why they are not absolute?
Various constitutional standards/tests evolved by the Judiciary to determine the violation of
fundamental rights? Why judicial review is needed? What is the difference between judicial
review and judicial activism? What is the current debate about judicial activism v. judicial
restraint? At the end of the course the students will learn the followings: - \
1. The difference between Constitutional Law and Ordinary Laws.

2. The fundamentals of Constitutional Law.
3. The concept of limited government.
4. The objectives of the Preamble to the Constitution of India.
5. The difference between fundamental rights and legal rights.
6. The fundamental principles regulating the writ jurisdiction and the remedy.
7. Constitution and Constitutionalism
8. Constitutional morality.
9. How to think logically and acquire critical and analytical skills.
10. How to apply the law of the Constitution to given facts.
Learning Outcome
On the completion of this course, students are expected to:
1. State and explain the Constitution and Constitutionalism.
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2. Explain and discuss the supremacy of the Constitution.
3. State and explain the underlying principles of Constitutional Law.
4. State and explain the concept of state and its fundamental role in protecting the
fundamental rights enshrined in the Constitution of India.
5. Explain the fundamental principles regulating the writ jurisdiction and the relevant
remedy.
6. Explain fundamental rights.
7. State and explain the role of the Judiciary as the guardian of the Constitution.
8. Acquire the art of legal reasoning in judgments.
9. Have the knowledge, skill and ability to apply the law to facts.
10. Have acquired critical and analytical skills.
COURSE OUTLINE
UNIT – I: Fundamentals of constitutional law
Introduction to Constitutional Law-the study of Constitutional Law-what is law of the

Constitution and Constitutionalism-historical development and framing of the Constitution
of India-Constituent Assembly Debates-The Preamble to the Constitution and its objectives
and Goals-Rule of Law and Separation of Powers-fundamental features of the Constitution-
Parliamentary form of Government-Federalism-secularism-citizenship-independence of the
Judiciary
UNIT – II: THE evolution and SIGNIFICANCE OF FUNDAMENTAL RIGHTS TO

INDIVIDUALS
MEANING OF RIGHTS: - Rights literally mean those freedoms which are essential for
personal good as well as the good of the community - Rights are described as our own
demands needed for our own development - These when recognized by the society and
state become Rights - \
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According to these all-human beings are born free and all are equal in dignity and rights-No
one can be deprived of the right to life, liberty and security - The government has the duty
to protect these rights and promote respect for them - Concept of Rights and Duties - To
every corresponding right there is a corresponding duty. Fundamental rights primarily
protect individuals from any arbitrary state actions, but some rights are enforceable against
individuals. These Fundamental Rights are not absolute but subjected to reasonable
restrictions as necessary for the protection of general welfare.
UNIT – III: FUNDAMENTAL RIGHTS ENFORCEABLE AGAINST THE STATE AND THE
SUPREMACY OF THE CONSTITUTION.
Article 12 {Definition} of State In this Part, unless the context otherwise required, "the
State" includes the Governmental 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-Article 13 {Laws inconsistent with or in
derogation of the fundamental rights} - All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void - The State shall not
make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of the contravention, be void - In
this article, unless the context otherwise required, - "Law" includes any Ordinance, order,
bye-law, rule, regulation, notification, custom or usage having in the territory of India the
force of law; "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 - Nothing in this article shall apply to
any amendment of this Constitution made under article 368.
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UNIT – IV: RIGHT TO EQUALITY
ARTICLES 14 – 18 - Equality before law and equal protection of Laws – Equality before the
Law is an English concept whereas Equal Protection of the Laws is an American concept. The
Government cannot discriminate any of the Indian citizens on the basis of their caste, creed,
color, sex, gender, religion or place of birth - All equals be treated equally and unequals to be
treated differently-Doctrine of Reasonable Classification-The State can make a legislative
classification and treat equals differently but the Classification must be reasonable-Doctrine of
Arbitrariness-Arbitrary actions of State is violative of the principle of equality-State affirmative
actions-reservations for the backward classes-the State guarantees an equal opportunity in public
employment-Special provisions may be made for the advancements of any socially backward class or
scheduled castes or scheduled tribes- abolition of untouchability and abolition of title
UNIT – V: RIGHT TO FUNDAMENTAL FREEDOM
ARTICLES 19 – 22 - Freedom of speech and expression-Freedom to assemble peacefully without arms

- Freedom to form associations or unions - Freedom to freely throughout the territory of India -
Freedom to reside and settle in any part of the territory of India - Freedom to practice any
profession - Freedom of speech and expression, which enable an individual to participate in public
activities subject to reasonable restriction placed in Article 19 (2) - Freedom to form associations or
unions on which the State can impose reasonable restrictions by the state - Freedom to form
associations or unions on which the State can impose reasonable restrictions - Freedom to reside
and settle in any part of the territory of India which is also subject to reasonable restrictions by the
State - Freedom to practice any profession or to carry on any occupation, trade or business or
occupation.
UNIT – VI: RIGHT AGAINST EXPLOITATION
ARTICLES 23 – 24 - The right against exploitation is abolition of forced labor and abolition of
employment of children below the age of 14 years in dangerous jobs like factories and mines - Child
Labor is considered a violation of the spirit and provisions of the constitution - An exception is made
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in employment without payment for compulsory services for public purposes - Abolition of
trafficking in human beings and Beggar (forced labor).
UNIT – VII: RIGHT TO FREEDOM OF RELIGION
ARTICLES 25 – 28 - According to the Constitution, all religions are equal before the State and no
religion shall be given preference over the other (State does not have any religion) - Citizens are free
to preach, practice and propagate any religion of their choice - Right to freedom of religion provides
religious freedom to all citizens of India - The objective of this right is to sustain the principle of
secularism in India - All religions are equal before the State and no religion shall be given preference
over the other - Citizens are free to preach, practice and propagate any religion of their choice - No
person shall be compelled to pay taxes for the promotion of a particular religion.
UNIT – VIII: CULTURAL AND EDUCATIONAL RIGHTS
ARTICLES 29 – 30 -Any community which has a language and a script of its own has the right to
conserve and develop it - All minorities, religious or linguistic, can set up their own educational
institutions to preserve and develop their own culture - As India is a country of many languages,
religions, and cultures, the Constitution provides special measures to protect the rights of the
minorities-
UNIT – IX: WRIT JURISDICTIONS OF THE COURTS AND REMEDIES
Concept of Judicial Review - The principles of Marbury vs Madison (5, u. s. 137) - the origin of the
concept of Judicial Review in America - was a landmark U. S. Supreme Court case that established
the principle of judicial review in the United States - Concurrent Jurisdictions of the Supreme Court
and High Court [Articles 226 and 32] - Right to Constitutional Remedies under the Constitution [Writ
of Habeas Corpus, Writ of Mandamus, Writ of Prohibition, Writ of Certiorari & Writ of Quo
Warranto] - Right to constitutional remedies and the fundamental principles regulating the writ
jurisdiction - Right to constitutional remedies empowers the citizens to move a court of law in case
of any denial of the fundamental rights - This is the most important right of all the six rights and it
empowers the citizens to move a court of law in case of any denial of fundamental rights - This Right
is enforceable through writs provided in the constitution itself.
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UNIT – X: DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
The source of the concept of Directive Principles of State Policy (DPSP) is the Spanish Constitution
from which it came in the Irish Constitution - The concept of DPSP emerged from Article 45 of the
Irish Constitution-Constitutional Provisions - Part IV of the Constitution of India (Article 36–51)
contains the Directive Principles of State Policy (DPSP) - Article 37 of the Indian Constitution States
about the application of the Directive Principles - These principles aim at ensuring socioeconomic
justice to the people and establishing India as a Welfare State - Fundamental Rights Vs DPSP - Unlike
the Fundamental Rights (FRs) - the scope of DPSP is limitless and it protects the rights of a citizen
and work at a macro level - DPSP consists of all the ideals which the State should follow and keep in
mind while formulating policies and enacting laws for the country - Directive Principles are
affirmative directions on the other hand - Fundamental Rights are negative or prohibitive in nature
because they put limitations on the State - The DPSP is not enforceable by law - it is non-justiciable -
It is important to note that DPSP and FRs go hand in hand - DPSP is not subordinate to FRs –
Classification of Principles - The Directive Principles are classified on the basis of their ideological
source and objectives - These are Directives based on: Socialist Principles Gandhian Principles Liberal
and Intellectual Principles - The Fundamental Duties were incorporated in Part IV - A of the
Constitution by the Constitution 42nd Amendment Act, 1976, during Emergency under Indira
Gandhi’s government - Today, there are 11 Fundamental Duties described under Article 51 - A, of
which 10 were introduced by the 42nd Amendment and the 11th was added by the 86th Amendment
in 2002, during Atal Bihari Vajpayee’s government.
Reading List
Essential Reading
1. M. P. Jain, Indian Constitutional Law (8TH edn, Lexis Nexis 2018)
2. Dr. J. N. Pandey, Constitutional Law of India (Central Law Agency 2020)
3. Narender Kumar, Constitutional Law of India (9TH edn, Allahabad Law Agency 2016)
Recommended Readings
1. Dr. Kailash Rai, Constitutional Law of India (3RD edn, Central Law Publications 2016)
2. Durga Das Basu, Introduction to the Constitution of India (11TH edn, Lexis Nexis 2021)
3. Dr. Ajay Kumar Singh, Human Rights and Social Justice (1ST edn, VL Media Solutions
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2014)
4. Kartikeswar Patra, History and Debates of Constituent Assembly of India (Vikas 1998)
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81
3 FUNDAMENTAL RIGHTS
A short history of Fundamental Rights – Just as a written Constitution has evolved

out of the concept of natural law as a higher law, so Fundamental Rights may be
said to have sprung out of the doctrine of natural rights. As our Supreme Court has
put it,
―Fundamental rights are the modern name for what have been traditionally known
as ‗natural rights‘1
Fundamental rights have evolved out of ‗natural rights‘
The doctrine of natural rights is itself, an offshoot of the doctrine of natural

law. Since natural law consists of rules founded on the primary instincts of man as
modified by his inborn perception of what is right or wrong, it would follow that
natural rights would constitute the primary rights and obligations of men to each
other as soon as they being to live in a society, i.e., in association with others. And
since the rules of natural law are of universal application, natural rights also inhere
in every human being, in all ages and in all climes.
The political implication of the theory of natural rights is that these rights,
being inherent in man, existed prior to the birth of the State itself and cannot,
therefore, be violated by the State. Paradoxically, however, the growth of the State
itself necessarily put limitations upon the natural rights of every individual in the
interests of the collective existence. In a ‗state of nature‘, the earliest state of
society envisaged by political thinkers such as Hobbes or Rousseau, right was co-
related with might, in the sense that every man had a right to do everything within
his power. The growth existence postulates that the rights of each individual
should be limited by the collective interests of the society in which he lives.1
Just as natural law stands above the law of the land, the natural rights are
supposed to be of a higher sanctity than legal rights, which are actually prescribed
1
Aquinas, Summa Theologica (tr. By Dawson, Q. 94, Art. 2).
82
by the legal sovereign for the time being, because natural rights exist independent
of the law of the land and are not prescribed by any human authority.
Though there has been an unending controversy as to whether rights are anterior
to political society or are created by the letter, philosophers agree on the point that
there are certain basic and inalienable2-3 rights which are inherent in free and
civilized human beings. A political society is necessary not to create them but to
secure them. For instance, a right to habeas corpus, in England, was not created by
the Habeas Corpus Acts, but existed even prior to the enactment of those statutes.
Civilised men derive such rights from a higher law, which was called ‗natural law‘
at the dawn of civilization, and which later came to be embodied in the form of a
written instrument or instruments constituting the fundamental law of the land.
The concept of natural right (jus naturale) as being derived from natural
law (lex naturalis) may be traced from the Stoic philosopher Cicero, who in the
De Legibus, said:
―… we are born for justice, and …… right is founded not in opinion but in nature.
There is indeed a true law, right reason, agreeing with nature and diffused among
all, unchanging, everlasting‖.
This concept was given a more concrete shape n the writing of the Roman
jurists who asserted that –
Justinian‘s Institutes
―By natural law all men are born free‖ 4 ―So far as pertains to natural rights, all
men are equal‖.5
While the Stoics identified the law of nature with Reason, the Churchmen
of the Middle Aged identified it with the law of God and thus sowed the seeds of
2
American Declaration of Independence, 1776.
3
Cf. Loan Association V. Topeka, (1875) 20 Wall. 655 : Munn v. Illinois, (1877) 94 U.S. 113.
4
Institutes of Justinian, I, ii, 2.
5
Ulpian, Digest, I 17, 32.
83
the revolutionary doctrine that the individual had a right to defend himself against
absolutism.
Though the Constitution of England has never been codified in the form of
one organic instrument, so far as individual rights are concerned, they have been
asserted from time to time in the form of declarations of the inviolable rights and
liberties of the subject against the most despotic monarchical authority. In the
words of Blackstone,6 these rights were ―founded on nature and reason, so they
are coeval with form a government‖.
The doctrine of natural rights thus passed into the realm of practical reality
when an absolute monarch himself (King John) was made to acknowledge that
there were certain rights of the subject which could not be violated even by a
Sovereign in whom all power was legally vested.
The movement continued through the repeated confirmations of the Magna Carta
and the Petition of Right, 1628, and culminated in the Bill of Rights, 1689, which
enacted in a parliamentary statute the declaration which the people made the
Prince and Princess of Orange to subscribe at their accession in 1688. The
contribution of this instrument towards the development of Fundamental Rights9 7
will be evident when we look at its concluding words.
―….. it may be declared and enacted, that all and singular the rights and liberties
asserted and claimed in the said declaration are the true, ancient and indubitable
rights and liberties of the people of this kingdom‖.
The Act of Settlement, which followed, had for its Title –―An Act declares
declaring the Rights and Liberties of the Subject …..‘ which were asserted as ―the
birth-right of the people of England‖.
Together with these Charters of liberties we should advert to the views of

contemporary political thinkers, such as the absolutism. Though from the early
times natural law was considered as a norm for right conduct as well as the source
6
(1765) 1 Bl. Comm., Ch. I, pp. 127-8.
7
In particular, the guarantees of peaceable assemblage, against double jeopardy and excessive bail in the
American Constitution were drawn from the English Bill of Rights of 1689. For Text, see Author‘s Select
Constitutions of the world.
84
of certain basic rights, the latter aspect was more emphasized by the revolutionary
leaders like Eliot, Pym and hampden, to assert that there were certain fundamental
rights, such as the freedom of person and property, which could not be arbitrarily
interfered with by any political authority. The theory of natural rights of the
individual was thus used to checkmate the theory of Divine Right of Kings.
It was about this time that the poet John Milton, in his Areopagitica, pleaded for
‗the liberty to know‘, to utter and to argue freely according to ‗conscience‘.
The doctrine of natural rights, received further impetus at the hands of the
great protagonists of the theory of Social Contract in the 17 th and 18th centuries,
particularly, Locke and Rousseau, who sought to trace the genesis of political
society and government in an agreement into which individuals entered to form a
collective society to ensure their general interests and objects, but, at the same
time, without interfering with their ‗natural rights‘ which already belonged to
them as human beings.8
Of this group of political thinkers, the most systematic contribution was

that of John Locke, whose two Treatises of Government, published in 1690, and
wielded a great influence upon the American colonists in preparing the
Declaration of Independence and the written Constitutions. Shorn of details,
Locke‘s theory was that in the original state of nature, man was governed by the
low of nature; but for the sake of better safety, he joined in a political society by
means of a ‗social compact for the mutual preservation of life, liberty and
property. The government, so set up by a compact, was naturally one of limited
powers and was bound to the community by the guarantee that the people‘ natural
rights would be preserved. The legislature was thus limited by natural law and law
made by the Legislature contrary to the law of nature or violative of the natural
rights of the individual was invalid. Some of these natural rights, for instance,
were ‗equality‘, - ―men being by nature all free, equal and independent‖; liberty
and property, The distinct contribution of Locke to the philosophy of fundamental
rights, thus, was that he did not rest with the assertion of the natural rights against
8
Rousseau, Social Contract, I. vi.
85
royal arbitrariness; he held them as against the Legislature as well, even though
the ―supreme power in the commonwealth‖ might belong to the Legislature.9
Though full of contradictions in his philosophy of Social contract, it was

Rouseau who gave a kinetic impetus to the doctrine by emphasizing that the sole
justification of the State, - deriving its authority from the people, - was to
guarantee the natural rights of man, of freedom and equality. 10 These were
―natural‖ rights inasmuch as they inhered in man in the ‗state pf nature‘:
It is striking that this concept of natural rights as binding on any political

authority crept in to the thoughts of a legalist like Blackstone who, writing in
1765,11 rights of persons.
By absolute rights of individuals, Blackstone meant –
―those which are so in their primary and strictest sense; such as would being to
their persons merely in a state of nature; and which every man is entitled to enjoy,
whether out of society or in it.:
These are to be distinguished from relative rights which are incidental to

individuals only as members of society.
It is the duty of the political society to protect these absolute rights and
therefore the State or any authority therein cannot interfere with or encroach upon
these natural rights except in so far as that is essential for the free maintenance or
proper enjoyment of such rights as members of a collective society. Thus,
Blockstone continues. –
Credit must, therefore, go to Blackstone for importing the doctrine of

natural rights from the realm of political philosophy into the realm of
jurisprudence. Of course, he was also asserting that ―the power of parliament is
absolute and without control‖ and that ―what parliament doth, no authority upon
earth can undo‖.14 but he had, at the same time, the belief that the ‗absolute
9
Locke, Second Treatise of Civil Government, x, 135; xiii, 149.
10
Rousseau, Social contract, 1762 (Everyman), I. i. Discourse on Ineqquality, Pt. II.
11
Blackstone, (1965) I Comm., Ch. I. pp. 123-4 (Coleridge Ed.).
86
rights‘ of man were and would be safeguarded by the laws made by Parliament so
long as ‗the constitution of England‘ ‗does not perish‘. 12
Lockes‘ theory of Social contract was materially fruitful in the compact

which the Pilgrim Fathers entered into when they landed from their ship named
Mayflower, at Plymouth, in the year 1620. In this Agreement, the signatories,
after recognizing their allegiance to the King of England, -
―do solemnly and mutually, in the presence of God, and of one another, covenant
and combine together into a civic body politic,… and … to enact, constitute and
frame such just and equal laws, ordinances, acts, constitutions, and offices from
time to time, as shall be thought most meet and convenient for the general good of
the Colony, into which we promise all due submission and obedience‖.13
The significance of this Compact lies in the fact that when the Colonial
revolt started in 1763. The colonists pointed to this Compact as the contract
between the colonists and the king by which he was deemed to assure protection
of their natural rights.
The Bill of Rights adopted in the State constitution of Virginia in 1776

was the first declaration of rights in a written Constitution ―as the basis and
foundation of government.‖ The impress of the doctrine of ‗natural rights‘ is to be
found in the preamble of this Declaration:
―All men are by nature equally free and independent and have certain inherent
natural rights of which when they enter society, they cannot by any compact
deprive or diverts their posterity….‖
As Ritchie14 points out, this Bill of Rights served ―as the model for many
similar declarations adopted after American independence had been secured‖.
That it inspired the makers of the Bill of Rights appended to the national
constitution by the first Ten Amendments would be evident if we find that
amongst the rights asserted by the Virginia Bill of Rights are –
12
Ibid., Book I, Ch. 2, pp. 161-2.
13
McLaughlin. Foundations of American Constitutionalism (Premier Americana, 1961), p. 27.
14
Ritchie, Natural Rights, 1894, p. 4.
87
The theory of natural rights entered into the realm of constitutional realism
with two revolutionary documents, namely, the American Declaration of
Independence and the French Declaration of Rights of Man, which asserted that
there were certain rights which were inalienable and which it was the duty of the
State and its organs to maintain.
The aggression of the omnipotent British Parliament against the American

colonists could be met only by holding up the shield of the inviolable natural
rights of man which would constitute a limitation to any form of government,
monarchical or parliamentary‖. 15
The Declaration of American Independence, drafted by Jefferson in 1776,

said.
―We hold these truth to be self-evident; that all men are created equal; that they
are endowed by their creator with certain inalienable rights; that among these are
life, liberty, and the pursuit of happiness…‖.
Though it was not a part of a written constitution, it asserted ―certain

inalienable rights‖, as against any government in power, adding that –
―….to secure these rights governments are instituted among men, deriving their
just powers from the consent of the governed‖
Inspired by the American Declaration of Independence, the French

National Assembly in 1789 formulated the Declaration of the Rights of Man:
The representatives of the people of France, formed into a National

assembly considering that ignorance, neglect, or contempt of human rights, are the
sole causes of public misfortunes and corruptions of Government, have resolved
to set forth in a solemn declaration, these natural, imprescriptibly, and inalienable
rights, that this declaration being constantly present to the minds of the members
of the body social, they may be ever kept attentive to their rights and their duties;
that the acts of the legislative and executive powers of Government, being every
moment compared with the end of political institutions, may be more respected;
15
Vide Dunning, History of Political Theories (1920) Indian Ed., 1967, Ch. III).
88
and also, that the future claims of the citizens, being directed by simple and
incontestable principles, may always tend to the maintenance of the constitution,
and the general happiness.
For these reasons the national assembly both recognize and declare in the
presence of the Supreme being, and with the hope of his blessing and favour the
following sacred rights of men and citizens……
The philosophy underlying this doctrine of inalienable rights, superior to

the civil rights, may best be explained in the words of a contemporary political
thinker, - Thomas Paine:
―… all men are born equal and with equal Natual Rights‖ 16
Man did not enter into society to become worse than he was before, not to
have fewer rights than he has before but to have those rights better secured. His
natural rights are the foundation of all his civil rights…. Natural rights are those
which appertain to man in right of his existence. Of this kind are all the
intellectual rights, or rights of the mind and also all those rights of acting as an
individual for his own comfort and happiness which are not injurious to the
natural rights of others. Civil rights are those which appertain to man in right of
his being a member of society. Every civil right has for of which his individual
power is not, in all cases, sufficiently competent. Of this kind are all those which
relate to security and protection.
From this short view it will be easy to distinguish between that class of
natural rights which man retains after entering into society and those which he
throws into common stock as a member of society.
From these premises two or three conclusions will follow:
First, that every civil right grows out of a natural right; or in other words, is a
natural right exchanged.
Secondly that civil power properly considering as such is made up of the

aggregate of that class of natural rights of man which becomes effective in the
16
Thomas Paine, ―Rights of Man‖ (1791-92) (1958 Everyman Edn.), pp. 42, 44-5.
89
individual in a point of power, and answers not his purpose, but when collected to
a focus becomes competent to the purpose of everyone.
Thirdly, that the power produced from the aggregate of the natural rights,
imperfect in power in the individual, cannot be applied to invade the natural rights
which are retained in the individual, and in which the power to execute is an
perfect as the right itself‖.17
A most sticking feature of the federal Constitution of the U.S.A. however,

is that there was no Bill of rights appended to the original Constitution as framed
by the Convention of 1787 and brought into force in 1789, even though the
constitution contained certain specific limitations upon legislative power, such as
the prohibition of bill of attainder and ex post facto low.
There was, in fact, a proposal in the Convention that a Bill or rights should
be inserted in the constitution but it was defeated. In the results, the Constitution
of 1787 contained no guarantee of those ‗inalienable rights‘ which were envisaged
by the Declaration of Independence, such as freedom of speech, assembly,
religion and the like.
But as soon as the Federal Constitution was adopted, the absence of a Bill
or rights was felt by some of the leaders of whom Jefferson was the spokesman,
and some States demanded the incorporation of a Bill or Rights as a condition for
their ratification of the Constitution. Jefferson pointed out the fallacy of the
assumption that representatives of the people could not be arbitrary and that a
representative Legislature required no constitutional limitations upon its powers.
So said Jefferson:
He also met the usual arguments against the adoption of a Bill of Rights thus:
―The declaration of rights is, like all other human blessings alloyed with some
inconveniences and not accomplishing fully its object. But the good in this
instance vastly overweight the civil…. Experience proves the inefficacy of a Bill
of Rights. True. But though it is not absolutely efficacious under all
circumstances, it is of great potency always and rarely inefficacious… There is a
1
7 Thomas Pain, ―Rights of Man‖ (1791-92) (1958 Everyman Edn.), pp. 42, 44-5.
90
remarkable difference between the characters of the inconveniences which attend

a Declaration of rights and those which attend the want of it. The inconveniences
of the Declaration are that it may cramp Government in its useful exertions. But
the evil of this is short-lived, moderate and reparable. The inconveniences of the
want of this are short-lived, moderate and reparable. The inconveniences of the
want of a Declaration are permanent, afflicting and irreparable‘. They are in
constant progression from bad to worse. The executive, in our governments, is not
the sole; it is scarcely the principal, object of my jealousy. The tyranny of the
legislatures is the most formidable dread at present and will be for many years‖. 18
The unmistakable direction in which the Americans took a step in advance

of the French people in importing the concept of the inalienable natural rights in
an ornamental not stop at reciting these rights in an ornamental Preamble to the
Constitution, but adopted them as a part of the constitution which could serve as a
legal limitation on the powers of each of the organs set up by the Constitution like
any other mandatory part of that organic instrument and would be enforceable
by the courts to invalidate legislative and executive acts that might transgress
these inalienable rights.
A modern exposition of this doctrine, as understood by the American

Supreme Court, is to the found in the case of Board of Education v. Barnett:19
Another reason behind the adoption of the Bill of Rights was that if there
was a justicable guarantee of individual rights in a written Constitution, the
Judiciary would protect the individuals against their violation by the Legislature
and the Executive, Judicial review thus became an inseparable concomitant of
fundamental rights. In the words of Madison20:
―When, therefore, the States, as a condition for their ratification of the Federal
Constitution, insisted upon the inclusion of a Bill of Rights, the demand was
readily conceded and in the very first Congress, Madison proposed amendments to
the text of the Constitution which ultimately led to the Bill of Rights, incorporated
in the first ten amendments of the Constitution which took place simultaneously in
18
Dumbauld, Political Writings of Thomas Jefferson, pp. 127-8; Jefferson‘s Works, Vol. III, p.4
19
Board of Education v. Barnette, (1943) 319 U.S. 624.
20
1 Annals of Congress, 439.
91
the year 1791 that is, two years after the Constitution had been brought into
force.‖
It is also noticeable that even after the adoption of the Bill of Rights in the
Constitution, the doctrine of natural law and natural rights has wielded a potent
force in the United States in safeguarding individual rights and in expanding the
Constitution in that behalf. Thus, in United States v. Cruikshank, 21 it was said that
the right of the people to assemble peaceably 22 existed from long before the
adoption of the constitution of the United States and was derived ―from those laws
whose authority is acknowledged by civilized man throughout the world.‖
Similarly has it been said often and often, that the ‗Due Process: clause in the
Fourteenth Amendment embodies the ‗fundamental conceptions of justice. 23 or a
‗demand for civilized standards which are not defined by the specifically
enumerated guarantees of the Bill of Rights‖24 or ‗a fundamental fairness essential
to the very concept of justice, 25 the very substance of individual rights of life,
liberty, property.26
The Due Process Clause has thus come to be treated as an expression of

the faith that. Thus emerged the concept of ‗a perpetual charter of inestimable
human liberties27 which would serve as a limitation upon any government power 28
so that it might not be used tyrannically against the individuals subject to its
authority. In the words of Black, J., in Adamson v. California, 28 the provisions of
the American Bill of Rights: were designed to meet ancient evils. But they are the
same kind of human evils that have emerged from once that is established, it
become the duty of the Courts ―to enforce these ―limitations and restraints‖
against authority.
Another most noticeable feature of the history of fundamental rights in the

U.S.A. is that though the Bill of rights was, in its terms, addressed to the federal
21
U.S. v. Cruikshank, (1975) 92 U.S. 543; see also Loan Assocn. V. Topeka, (1870) 20 Wall. 655 (663).
22
First Amendment to the American Constitution; Art. 19(1) of the Indian Constitution.
23
Twining v. New Jersey, (1908) 211 U.S. 78; Palko v. Connecticut, (1937) 302 U.S. 319.
24
Louisiana v. Resweber, (1947) 329 U.S. 459.
25
Lisenba v. California, (1941) 314 U.S. 219 (236); Hebert v. Luisiana, (1926) 272 U.S. 312 (316); Rochin v.
California, (1952) 342 U.S. 165; Joint Anti-Fascist Refugee Committee v. McGrath, (1951) 341 U.S. 123.
26
Hurtado v. California, (1884) 110 U.S. 516.
27
Mapp v. Ohio, (1961) 367 U.S. 643 (655).
28
Adamson v. California, (1947) 332 U.S. 46.
92
Legislature or Government,29 by the use of the words – Congress shall make no

law‘, the Supreme Court has eventually come to realize that there is no reason
why, on principle, the Bill of rights in the federal Constitution should not be
binding upon the States as well. By judicial exposition, thus, the first Ten
Amendments have been held to be applicable to the States. This conclusion has
been reached through the medium of the 14th Amendment (which is applicable to
the States) holding that the ‗Due Process‘ clause in that Amendment includes the
rights embodied in the First Ten Amendments.30
As explained by Cooley31 it is not necessary to incorporate any express

prohibition, as the Indian Constitution (Art.13) has done, that the Legislature shall
not make laws violating the fundamental rights declared in a written constitution;
the very incorporation of such rights in the constitution, in a mandatory form,
operates as a limitation on legislative power.32
There have indeed been some people, mostly British33 who have
questioned the utility of having a Bill of Rights, that is to say, a declaration of
Fundamental Rights in a constitution, but to-day that view must be said to have
been rejected by the history of the world because if it was utterly useless or futile,
almost every written Constitution made since the constitution of the United States,
and more particularly, those made since the two World Wars, would not have
adopted such declarations. As pointed out earlier (p. 251, ante), even a
representative Legislature is liable to be arbitrary and it was such painful
experience of the American Colonists at the hands of the British Parliament
Itself34 that led the Americans to adopt a Bill of Rights in their State Constitutions
and eventually in the federal Constitution. The treatment received by the Indians
from the British Parliament was not dissimilar 35 and I am glad to find that even a
British, who is otherwise a staunch advocate of British institutions, has
29
This was the view taken by the Supreme Court in 1883 (Barron v. Baltimore, (1833) 7 Pet. 243).
30
Gitlow v. N.y., (1925) 268 U.S. 652; Pointer v. Texas, (1965)380 U.S. 400; Duncan V. Louisiana, (1968)
391 U.S. 145 (148) ; Benton V. Maryland, (1969) 395 U.S. 784.
31
Cooley, Cosntitutional Limitations (1937), Vol. I, p. 359; Cf. Gopalan v. State of madras, (1950) S.C.R. 88
(100).
32
This was echoed by Kania, C. J., in Gopalan v. State of Madras, (1950) S.C.R. 88 (99)-―The inclusion of
Art. 13… in the Constitution appears to be a matter of abundant caution‖.
33
E.G., Bentham, Works, Vol. 2, pp. 497, 501: Jennings, some characteristics of the Indian Constitution
(1953), pp. 3-4, 48, 54; Wheare, Modern Constitutions (1960), p. 49.
34
Cf. Warren, Congress, the Constitution and the Supreme Court (1925), p. 81.
35
As will be seen presently.
93
acknowledged that it the matter of adopting of Bill of Rights, ―the Indian reaction,
like the American reaction, is in large measure, a product of the British rule‖. 36
When Dicey, in 1885 said that ―the Habeas Corpus Acts declare no
principle and define no rights, but they are for practical purposes worth a hundred
constitutional articles guaranteeing individual liberty.37 and that mere declaration
of individual rights in an instrument may be meaningless if there were no
adequate remedies by which they might be enforced, he was indeed uttering a
profound truth, but makers of new Constitutions in the world since then have
nevertheless assumed that a guarantee of fundamental rights, in a written
constitution was a better safeguard for liberty that leaving the matter to the Courts
to apply the common law to particular cases, particularly because, as I have shown
at the outset, common law does not set any limitation upon the Legislature, as
does a Bill of Rights in a written constitution.
The model of the American Bill of Rights was followed by so many of the
States formed after the First World War38 that the Simon commission‘s pleading
against a Bill of Rights in 1934 was nothing but pleading against history, said the
Commission.39
The dilemma which the joint parliamentary Committee presented, in order

to support the view of the Simon Commission, like all dilemmas, contained an
inherent logical fallacy. The Committee said. 40
Fortunately, the fathers of the Indian constitution were not beguiled by that
dilemma and preferred to follow the famous words of Jefferson (see p. 251, ente)
The reason is that the freedom-fighters in India, like the American

colonists, had learnt from their experience under an Imperialistic regime that even
a representative assembly of men might be arbitrary and hostile to the cherished
rights of men. They could not, therefore, implicity believe the representatives of
36
Ivor Jennings, Some Characteristics of the Indian Constitution 1953, p. 34.
37
Dicey, Law of the Constitution, 10th Ed. 1959, p. 199.
38
E.g., Finland (1919); Iraq (1925); Turkey (1925\4); Lebanon (1926); Eire (1937).
39
(1930) Rep. of the Simon commission (Cmnd. 3569), Vol. I, pp. 22-3.
40
Rep. of the Joint Parliamentary Committee on Indian Constitutional Reforms (1934) Vol. I, Part I, para.
366.
94
the people, for uncontrolled and unrestricted power might lead to an authoritarian
State.41 Our constitution, therefore,
―… Preserves the natural rights against State encroachment and constitutes the
higher judiciary of the State as the sentinel42 of the said rights…‖
A demand for the guarantee of Fundamental Rights was thus made as early
as the Constitution of India Bill, 1895 drafted so soon after the birth of the
Indian
National Congress in the year 1885. The urge for incorporating a guarantee of
Fundamental Rights in our constitution was later accentuated by the need for
establishing ―a sense of security‖ 43 amongst the different minority groups,
religious, linguistic and social.
This object was developed ever since in different Congress proceedings

and led to the Report of the Committee on Fundamental Rights of the constituent
Assembly and the framing of part III of Draft Constitution in the light thereof.
To-day it is hardly necessary to explain the need for incorporating

fundamental Rights inasmuch as, inspired with the same object as in India, all the
new States of the commonwealth which have been formed out of the British
Empire itself have adopted a Bill of Rights in their respective Constitutions20 44
and most of these Constitutions, curiously, were drafted with the assistance of
British experts.
The urge for embodying guarantees of individual rights in Constitutions

has been further accentuated by the proclamation of universal human rights by the
United Nations, adopting the Universal Declaration of Human Rights in 1948- a
standard to which the member Nations must conform in order to maintain their
international prestige in this age of ―one world‖, and also by the adoption of the
41
Golak Nath v. State of Punjab, A. 1967 S.C. 1643 (1655, 1694).
42
State of Madras v. V. G. Raw, (1952) S.C.R. 597 (605).
43
Report of the Congress Committee, 1928, presided over by Motilal Nehru.
44
Malayasian Constitution, 1957 (Arts. 5-13) : Malta (Constitution) Order in Council, 1961 (arts. 35-48);
Constitution of Nigeria (1963) (Arts. 18-38); Constitution of Uganda, 1966, Part III; Constitution of Kenya,
1963, Arts. 14-30 : Jamaica (Constitution) order in Council, 1962 (ss. 13-26).
95
International Covenant on Civil and Political Rights in 1966. 45 It is now realized

that ―the recognition of the inherent dignity of the equal and inalienable rights of
all members of the human family is the foundation of freedom, Justice and peace
in the world‖.
Of course, no effective machinery has yet been devised to enable the

national of a State to enforce his fundamental right against his own State or a
foreign State, since only sovereign States can be parties to a cause before the
International Court of Justice. 46 It is also true that the Declaration does not say
that these rights must be protected by the member States by adopting written
Constitutions. In fact the Government of the United Kingdom believes that the
object can be achieved without a constitutional guarantee of the individual rights
specified in the Declaration. It is interesting to note that Great Britain herself
submitted in 1947, a Draft International Bill of Human Rights, which provided
that ‗every State is, by international law, under an obligation to ensure‖ the
effective protection of the freedoms enumerated in the Bill, and, in a Note
appended thereto it was said.
―Some countries, like the United Kingdom, have no rigid constitution and, as a
matter of internal law, it is not possible to surround any provision with any special
constitutional guarantee. No enactment can be given a grater authority than an Act
of Parliament, and one Act of Parliament can repeat any other Act of Parliament.
Therefore, the legal provisions which safeguard human rights can only have as
their special safeguard the solemn international obligations undertaken in the Bill,
together with the firm foundation which there principles have in the deepest
convictions of Parliament and the people. 47
Be that as it may, the very fact that the Charter of the United Nations
affirms the ‗Fundamental human rights‘ constitutes an acknowledgement on the
part of the members of the United Nations that they would commit a violation of
45
The relevant Articles of these international instruments will be reproduced under the various Articles of our
Constitution below, so that the reader may assess how far we have reached the international standard.
46
Art. 34 of the Statute of the Court.
47
Quoted in Lauterpacht, International Law & Human Rights (1950), p. 14 In.
96
the Charter if any of such rights of the individual is violated.48 Here, then, is a
revival of the ancient doctrine of natural rights being superior to the law of a
sovereign State, after it had suffered an eclipse in the age of historical and
analytical Jurisprudence. And in pursuance of this revival newer State have been
adopting written Constitutions with a guarantee of fundamental Rights. 49
We thus conclude our story of the evolution of natural rights as an ethical

standard at the dawn of civilized society into fundamental rights secured by the
highest law of a land and enforced by its courts of law. Natural rights are no
longer an appeal by philosophers dismayed by the tyranny of a sovereign State
and its laws, or the slogan of revolutionaries seeking to demolish the fabric of the
State itself as a reaction against its monolithic weight, but an effective means of
controlling unlimited power, conditioned by the only proviso that the Courts are
alert and independent.
The lessons which we can draw from the history of natural rights and
which are applicable to fundamental rights guaranteed by a constitution may be
formulated as follows:
(i) Natural rights are those minimal rights of an individual which must be
guaranteed by every society which claims to be civilized. 50
(ii) Natural rights have a sanctity superior to other rights conferred by positive
law. This is the idea which prompted the Americans when they spoke of the
inalienable rights of life, liberty and the pursuit of happiness in their Declaration
of Independence, and to adopt them in the form of a Bill of Rights added to the
Constitution in 1917. 51
(iii) Fundamental rights, like natural rights, are intended to be limitations upon
all government power and all State action. Including legislative, It is to protect the
fundamental rights from legislative encroachment, in particular. That is, against
48
Vide Preamble to the Universal Declaration (para. 6); also Art. 1 of the Convention for the Protection of
Human Rights and Individual Freedoms (1950), to which the members of the Council of Europe are
signatories.
49
E.g., countries of the Commonwealth, such as Malayasia, Malta, Jamaica, Kenya Nigeria, Uganda (1967),
Swaziland (1968), referred to earlier (f.n. 20, ante), also Japan (1946). Italy (1947), Burma (1948).
50
Ritchie, Natural Rights, 1894, pp. 80-1.
51
Hand, Bill of Rights (1958), p. 2.
97
the temporary passions of a group of men composing the Legislature for the time
52
being, that they were embodied in a written constitution.
3.1 What is a Fundamental Right?
I. A legal right is an interest which is protected by law and is enforceable in

the courts of law, while an ordinary legal right is protected and enforced by the
ordinary law of the land. A fundamental right is one which is protected and
guaranteed by the written constitution of a State.53. These are legal rights in the
sense of justifiability but they are called ‗fundamental‘ because while ordinary
rights may be changed by the Legislature in its ordinary process of legislation, a
fundamental right, being guaranteed by the constitution, cannot be altered by any
process shorter than that required for amending the Constitution itself. Nor can it
be suspended or abridged except in the manner laid down in the Constitution
itself.
II. Without entering into niceties, it may be stated that an ordinary legal right
appertains to private law and denotes the relationship between two private
citizens; a fundamental rights appertains to public law and is a right which an
individual possesses against the State itself. The party bound by a fundamental
right is the State. The distinction was thus explained by the American Supreme
Court : 54
―These rights (i.e., those guaranteed by a Bill of Rights) are different from
concrete rights which a man may have to a specific chattel or to a piece of land or
to the performance by another of a particular contract, or to damages for a
particular wrong, all of which may be invaded by individuals; they are the
capacity, power or privilege of having and enjoying those concrete rights and of
maintaining them in the courts, which capacity, power or privilege can only be
invaded by the State….‖55
52
Marbury v. Madison, (1803) 1 Cr. 137. (No. limitation upon the constituent power).
53
Almost all the written Constitutions promulgated since the 19 th century (the Government of India Acts were
notable exceptions) have adopted declarations of fundamental rights; see a list of such Constitutions in
Lauterpacht‘s International Law and Human Rights, pp. 89-91.
54
Butchers‘ Union v. Cresent City Co., (1883) 28 L. Ed. 585.
55
Samdasani v. Central Bank, (1952) S.C.R. 391; Vidya Verma V. Shivnarain, (1955) 2 S.C.R. 983. (As to
exceptions, if any, in India, see p., post.)
98
III. It follows that while ordinary legal rights are available against private
individuals, a fundamental right is available only against the State7 and not for the
violation of any such right by a private individual, except where the State supports
such private action.56
IV. On the other hand, the fundamental rights being guaranteed by the
fundamental law of the land, no organ of the State, - executive legislative or
judicial, can act in contravention of such right,57 and any State act which is
repugnant to such rights must be void 58 (vide Art. 13, post)
Once the Constitution is regarded as the supreme law of the land and the powers
of all the other organs of governments are considered as limited by its provisions,
it follows that not only the Legislature but also the Executive and all
administrative authorities are equally limited by its provisions, so that any
executive or administrative act which contravenes the provisions of the
Constitution must, similarly, be void.
As has already been explained (p. 253, ante) no express provision, such as that
contained in Art. 13 of our Constitution, is necessary to achieve this result in fact,
a written Constitution itself operates as a limitation on all constituted powers. 59
Where there is machinery for its enforcement, by way of judicial review. 60
This point is well worth emphasizing inasmuch as in some of our Supreme

Court decisions it appears to have been suggested that while the distribution of
legislative power and some other positive limitations upon the legislative power
e.g. Arts. 286. 304 take away the legislative competence of the Legislature and
render a law enacted in violation of such limitations a nullity. The fundamental
rights constitute mere ‗checks‘ upon the Legislature and do not go to the root of
the legislative competence. So that a law made in contravention thereof is merely
unenforceable. 61
56
Kochunni v. State of Madras, A. 1959 S.C. 725 (740).
57
Dodge v. Woolsey, (1857) 18 How. 331; Scott v. Howard, (1858) 19 How 393.
58
Marbury v. Madisn, (1803) 1 Cr. 137.
59
Hurtado v. California, (1884) 110 U.S. 516 (528-9).
60
Vide Author‘s T.L.L. on Limited Government & Judicial Review, pp. 65-6, 79, 80, 88 et seq.
61
Cf. Behram V. State of Bombay, A. 1955 S.C. 123 (139), Venkatarma Aiyar J.; Sundararamier v. State of
A. P., A. 1958 S.C. 468.
99
But the contrary view, namely that fundamental rights equally constitute
limitations upon legislative competence is now established by several letter
decisions. 62
The problem created by pre-Constitution laws cannot be allowed to

confound the position created by our constitution as regards post-Constitution
legislation. Nor should it be confused with the issue of ‗waiver‘ The Constitution
conferred the fundamental rights and enjoyed that any law made in contravention
thereof shall to the extent of the inconsistency. Be void. This is nothing but
prohibition upon the Legislator that it must not make a law which contravenes a
fundamental law in the same way as Art. 246 prohibit a State Legislature from
making a law with respect to a subject included in List I of the Legislative Lists.
Any other interpretation would run counter to the basic principles relating to al
Bill of Rights and defeat the very object of embodying fundamental rights in the
Constitution as is well established by the authorities discussed above.
V. In fact, no right cab ne said to be fundamental if it can be over ridden by

the Legislature63 and if there is no authority under the constitution to pronounce a
law to be invalid where it contravenes or violates such right directly or indirectly.
62
Basheshwar v. I. T. Commr., A. 1959 S.C. 149 (184) ; Deep Chand v. State of U.P., A. 1959 C.s. 648
(655); Mahendra v. State of U.P., A. 1963 S.C. 1019; State of M. P. v. Brarat Singh, (1967) 2 S.C.R. 454
(459); Mahal Chand v. State of W.B., (1969) II S.C.W.R. 500 (504).
63
This does not mean that Fundamental Rights, by their nature, are not liable to be amended even by the
process prescribed by the Constitution itself for its own amendment. Even when the amending power is
vested in the Legislature itself, acting under a special procedure or by a special majority, the Legislature,
while so acting, exercises constituent as distinguished from the legislative power. When it is said that
Fundamental Rights operate as limitation upon the Legislature and cannot be amended by the latter, it refers
to the Legislature, acting as the ordinary law-making body, exercising the power to make laws conferred by
the Cosntitution, and not to the Legislature, acting as the constituent body, empowered by the Constitution to
empowered by the constitution to amend the constitution itself. This was a distinction which was ignored by
the majority in Golak Nath‘s case, A. 1967 S.C. 1642 (see p. 25, ante, and more fully, under Art. 368, post),
but which has just been, in effect overruled by another Full Court in Keshavananda‘s case (d. 24-4-73).
The object of guaranteeing fundamental rights in a written Constitution is to withdraw certain basic rights of
the individual from the whims of a temporary majority in the Legislature (Bd. of Education v. Barnette,
(1943) 319 U.S. 624 (638) and not from the body which can amend or change the Constitution itself which
contains the fundamental rights, unless the letter are expressly entrenched against the amending power. All
the questions as to unreasonableness or impropriety that has been raised in this behalf is due to the fact hat the
markers of our constitution vested the constituent power in the Legislature itself (subject, of course, to certain
conditions and limitations). This may be unfortunate. But the courts are not to question the wisdom of the
fathers of the Constitution on this point or to re-write the Constitution by setting up implied limitations upon
the amending power or to invoke a new authority, e.g., a fresh Cosntituent Assembly, to amend the
Constitution, where none has been prescribed by the Constitution itself. A fundamental right is
‗transcendental‘ because it transcends the legislative power and not the constituent power.
100
Both in the U.S.A.64 and in India, 65 this authority is the judiciary. As was observed
by Shastri J. in Gopalan V. State of Madras.
That makes for the distinction between the rights included in Part III and
those included in Part IV of our Constitution. The former are justicable while the
letter is not (seeing under Art. 37. Post) that is why the former are termed
‗fundamental rights‘ while the later are termed ‗Directive Principles‘ This
Directives, if implemented by the State, will confer some benefits on the
individual. E.g. living wage, decent standard of life (Art. 43) and the like, but
nobody can compel the State to implement such Directives by an action in a Court
of law.
VI. A Special future of Fundamental Rights under the Indian constitution is

that not only the rights themselves, but the constitutional remedy to move the
Supreme Court for their enforcement is also guaranteed as a fundamental rights
(Art 32.) as a result of which this remedy and the power of judicial review
conferred upon the Supreme Court in this behalf cannot be taken away by
legislation66 or by anything short of amendment of the Constitution. It is a
substantive right to the aggrieved individual, so that even a law which renders
nugatory or illusory the exercise of the Supreme Court‘s powers under Art. 32 is
void,67 except where the constitution itself shields a law from challenge on the
ground of contravention of fundamental rights e.g. Art 31 (5) 31A-31C.
VII. Because the remedy under Art. 32 is guaranteed by the Constitution, a duty
is imposed upon the Supreme Court to protect the fundamental rights, - to perform
the role of ‗a sentinel on the qui vive.68
VIII. In the ultimate analysis, it is this constitutional remedy, - which is itself
guaranteed as a fundamental rights, namely, the right to move the Supreme Court
for an appropriate writ or order to enforce a fundamental rights, under Art. 32, -
which distinguishes a fundamental right from other rights.
There are indeed a number of rights created by the constitution itself which are
outside Part III of the Constitution. These must be called constitutional rights as
64
Board of Education v. Barnette, (1943) 319 U.S. 624.
65
Gopalan v. State of madras, (1950) S.C.R. 76 (204-5).
66
Kochunni v. State of Madras, A. 1959 S,C, 735 (729).
67
Gopalan v. State of madras, (1950) S.C.R. 88 (131, 284, 332-3).
68
State of Madras v. Row, A. 1952 S.C. 196 (199).
101
distinguished from legal rights inasmuch as they are created by the Constitution
and not by ordinary law, e.g. the right not to be subjected to taxation without
authority of law (Art.265) ; the right not to be subjected to laws interfering with
the freedom of trade (Art. 301) or unreasonable restrictions thereupon imposed by
a State Legislature (Art. 304 (b)) ; the right of a Government servant not to be
dismissed by an authority subordinate to that by which he was appointed or
without an in query on the charges leveled against him (Art 311). These
constitutional rights are analogous to fundamental rights on the following points;
(i) these constitute a limitation on legislative power in the same way as the
fundamental rights in Part III do and any law made in contravention thereof shall
be void. In the same manner.69
(ii) Being provisions engrafted by the Constitution, they cannot be taken away
without an amendment of the Constitution, since no exception in that behalf has
been made by the Constitution.70
(iii) The foregoing provisions also create justicable rights 1 and the individual
aggrieved may enforce them in a court of law, with this difference that, not being
a fundamental right, a right derived from any provision out side Part III, cannot be
enforced by a petition under Art. 32 before the Supreme Court.71 The remedy is a
suit or even a petition under Art 226 before a High Court.72
(iv) The majority in the recent Full Court judgement in Keshavananda‘s case. 73
Over rules Goluknath, 4a and restores the pre-Golak Nath view that a
Fundamental Right may be amended in the same way under Art. 368 as any other
provision of the constitution.
The distinction between fundamental rights and any other rights derived from a
provision outside Part III of our constitution is thus very slender, namely. Only
69
Automobile Transport v. State of Rajasthan, A. 1962 S.C. 1405 (1418); State of Rajasthan V. Mangilal
1969) 2 S.C.C. 710 (713).
70
Cf. Kerala Education Bill, in re., (1959) S.C.R. 995 (1067-8); Prem Sagar v. Standard Oil Co., (1964) 55
S.C.R. 1030 (1038); Hari Vishnu v, Syed Ahmad, (1955) 1 S.C.R. 1104 (1110-1112); Sangram Singh v.
Election Tribunal, (1955) 2 S.C.R. 1 (1).
71
Ramjilal v. I.T.O., A. 1951 S.C. 97.
72
Atiabari Tea Co. v. State of Assam, (1961) 1 S.C.R. 809.
73
Keshavnanda Bharti v. State of Kerala, d. 24-4-73
Golak Nath v. State of Punjab, A. 1967 SC 1642.
102
fundamental rights included in Part III are enforceable by a petition before the
Supreme Court under Art. 32.2
3.2 The need for fundamental Rights
The object behind the inclusion of certain individual rights in a Bill of Rights is to
establish a ‗Limited government‘, i.e. a governmental system in which absolute
power is not vested in the hands of any of the organs of the State, The concept of
limited government is what the Americans know as ―a government of laws. And
not of men‖7475. This concept, being the antithesis of the English doctrine of
Parliamentary sovereignty, can be explained only if we analyse the ideological
difference involved in the two concepts.
(A) England – In England, the birth of modern democracy was due to a protest
against the absolutism of an autocratic executive and the English power
discovered in Parliamentary sovereignty an adequate solution of the problem that
faced them. The English political system is founded on the unlimited faith of the
people in the good sense of their elected representatives and unlimited faith of the
not seem to have waned through the lapse of centuries. Though, of late,
detractions from its omnipotent authority have taken place because the ancient
institution at Westminister has grown incapable of managing the myriads of
modern problems with the same ease as in the Victrian age, nonetheless, hardly
has anybody in England through of placing limitations on the authority of
Parliament so that it might properly behave. 76 There are no legal restraints on the
omnipotence of Parliament and there is no authority which can interfere with a
law made by Parliament on the ground that it violates the basic liberties of the
people, if, nevertheless, the British Parliament does not invade individual rights,
that is not because it is legally incompetent to do so, but because, as a traditional
champion of liberty77 it would not pass any law ―which any substantial section of
the population violently dislikes‖ 78 except in emergencies.79
74
Constitution of Massachussets, 1780; Art. XXX; Marbury v. Madison, (1803) 1 Cr. 137 (163).
75
Authors T.L.L., pp. 60-61.
76
As to modern trends to the contrary, se Author‘s T.L.L. on Limited Government and Judicial Review, pp.
83-85; S. A. de Smith, constitutional & Administrative Law, (1971), pp. 31-2.
77
Liversidge v, Anderson, (1941) 3 All E.R. 338 (372).
78
Jennings, The Law and the Constitution (1959), p. 148.
103
But this assumption is not wholly correct nor has it forced well in other lands. 80
(B) U.S.A. – The Founding Fathers of the American Constitution. On the other
hand, had the painful experience that even a representative body might be
tyrannical, particularly when they were concerned with a colonial Empire, Thus it
is that the Declaration of Independence recounts the attempts of the British
―Legislature to extend an unwarrantable jurisdiction over us‖ and how the British
people had been ‗deaf to the voice of justice‖. At heavy cost had the colonists
learnt about the frailty and weaknesses of human nature when the same Parliament
which had forced Charles I to sign the petition of Right (1628) to acknowledge
that no tax could be levied without the consent of Parliament did, in 1765 and the
years that followed. Insist on taxing the colonies, regardless of their right of
representation and attempt to enforce such undemocratic laws through military
rule.
Hence, while the English people, in their fight for freedom against
autocracy, stopped with the establishment of the supremacy of the law 81 and of
Parliament as the sole source of that law, 82 the Americans had to go further and to
assert that there was to be a law superior to the Legislature itself and that it was
the restraint of this paramount written law that could only save them from the
fears of absolutism and autocracy which are ingrained in human nature itself. The
difference between the British and American away of securing ‗the great and
essential rights of the people‘ can hardly be better explained than in the words of
Madison himself.
Though couched in a positive form, the purpose of a Bill of Rights is nothing but
to impose limitations upon the legislative body in another form. 83
All limitations on legislative authority, whether they are in the form of a

guarantee of individual rights of not have the same object viz. the prevention of
dictatorship and despotism. 84 In the words of Justice Miller in citizens savings &
79
See under Art. 21, post: C5, Vol. II, p. 87.
80
Vide Author‘s T.L.L. pp. 46-52, 82-85.
81
Magna Carta, 1215.
82
Petition of Right, 1628; Bill of Rights, 1688.
83
U.S. 516 (531).
84
Board of Education v. Barnette (1943) 319 U.S. 624.
104
loan Association v. Topeka.85India – As stated earlier (p. 261 ente), the experience
of the founders of the Indian Constitution was exactly similar to that of the
American colonists and the reaction to that experience was also substantially
similar.
There was no such thing 86 as a fundamental right‘ in any of the Government of

India Acts which were naturally framed according to British ideas about
individual rights.
The Indian experience of the application of the Rule of Law in India ws not,
however, altogether happy and there was a strong feeling that it was not
administered with even hands by the foreign rulers in India as in their own land.
The ―Sons democratic System, viz. the Sovereignty of Parliament and the Rules of
Law, could be put in trampling down the rights of man under an Imperial rule.
As early as 1918, thus, the Indian National Congress, at its Bombay session,
demanded a Declaration of Rights of the people of India, including equality of
Indians before the law, subject to which only the Montague-Chemsford proposals
could be accepted by the Congress and the demand was reiterated by the Nehru
Committee87 in 1928 the committee asserted that –
At that time, the idea was not so much to limit the powers of the Legislature in the
constitution of a free country, but to curb the powers of an Imperial Legislature by
incorporating certain limitations in a written instrument, as had been done in
Ireland, and he example of Ireland was in deed cited in the Nehru Committee‘s
Report in support of the scheme to have a written declaration of individual rights,
The Karachi session of the All India Congress accordingly, declared that any
constitution which might be proposed would be acceptable to it only if it
contained certain fundamental rights, as formulated by it.
At the Round Table conference that preceded the making of the Government of
India Act, 1935, therefore, the India leaders pressed for a Bill of Rights in the
86
Except the two particular rights specified in ss. 298, 299, for the enforcement of which, however, no
constitutional remedy was prescribed. No attempt was made, during the continuance of the Act, to enforce
either of these provisions in the courts.
87
Report of the Nehru Committee (1928).
105
proposed Constitution Act, in order to bind the administration with certain

declaration of individual rights. Thus was, however rejected by the Simon
Commission (see p. 254, ente).
The Joint Parliamentary Committee that followed agreed with the observations as
to the value of a Bill of rights in the form of a dilemma:
―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 restriction on the
powers of the legislature and to create a grave risk that a large number of laws
may be declared invalid by the courts because of inconsistency with one or other
of the rights so declared‖.88
These observations were quite natural for Englishmen.
But when the nationalist leaders of India were called upon to frame a Constitution
after independence really came, it was not possible for them to forget their
experience. Naturally, therefore, they preferred to follow the American view 89
represented by the famous words of Jefferson. 90
As has been seen (p. 6, ante), at the very outset of the Constituent Assembly,
Pundit Nehru declared. In his objectives Resolution,91 that the object of the
Assembly was to draw up a constitution –
After the various fundamental rights had been enumerated by the Drafting
Committee, the definition of ‗State‘ was inserted in the Part relating to
Fundamental Rights in order to ensure that these rights should be binding not only
against the administrative authorities but also upon ‗every authority… which has
got the power to make laws‖. 92
And thus were incorporated into our Constitution elaborate provisions, in twenty-
four articles, regarding fundamental rights which were to act as limitations not
only upon the Executive but also upon all legislative 24 authorities (Art. 12), and
88
Rep. of the Joint Parliamentary Committee on Indian Constitutional Reforms, (1934), Vol. I, Part I, para.
366.
89
Cf. State of W. B. v. Subodh Gopal, (1954) S.C.R. 587 (616), Sastri, C.J.
90
See p. 254, ante, Author‘s T.L.L., p. 162.
91
See p. 6, ante.
92
III C. A D., p. 610.
106
any law made in contravention of any of the Fundamental rights shall be void‘
(Art. 12) the fundamental rights in Part III, thus, shall operate as a limitation on
legislative power,93 as in the U.S.A.
We cannot, for a moment, forget this fact in construing the provisions of out
Constitution; and any application of the English ideas of legislatives supremacy
might be altogether misleading.94
As our Supreme Court has observed –
―The Constitution of India is a written Constitution and though it has adopted

many of the principles of the English Parliamentary system, it has not accepted the
English doctrine of absolute supremacy of Parliament in matters of legislation. In
this respect it has followed the American Constitution and other systems modeled
on it.‖95
How individual rights are secured under different systems – It should not be
supposed that in those countries which have not adopted a Bill of rights as a
limitation upon the sovereignty of its Legislature, there is no protection at all for
the rights of the individual. So far as the executive are concerned. It has been
amply clear by this time that it is possible to protect the individual against any
tyrannical exercise of its powers by ordinary legislation. If it‘s Legislature is
vigilant. The question of constitutional limitation aries only if the individual is to
be protect from excesses of the Legislature itself. Before parting with the topic of
fundamental rights we should note how different approaches to this problem have
been made under different political systems.
3.3 Other constitutions

(A) England – the constitution of England is unwritten, hence, there is in England
no code of Fundamental Rights as exist in the United States of India. This does
not mean, however, that in England there is no recognition of those rights of the
individual without which democracy becomes meaningless. The object, in fact is
secured there in a different way.
93
Deep Chand v. State of U.P., (1950) Supp. (2) of U.P., (1963) Supp. (1) S.C.R. 912 (937).
94
State of W. Bengal v. Subodh Gopal, (1954) S.C.R. 587.
95
Gopalan v. State of Madras, (190) S.C.R. 88 (247).
107
The Judiciary is the guardian of individual rights in England as elsewhere; but

there is a fundamental difference, while in England the Courts have the fullest
power to protect the individual against executive tyranny, the courts are powerless
as against legislative aggression upon individual rights, In short, there are no
fundamental rights binding upon the Legislature in England.
(a) As against the Executive, - the Courts are the bulwark of individual liberty to-
day , just as it was in the days of absolute monarchy, though the need for
restrictions on individual liberty is pressing under modern conditions even in a
democratic country. As was observed by the Privy Council, -
―No member of the Executive can interfere with the liberty or property of a British
subject except on the condition that he can support the legality of his action before
a Court of Justice.‖96
(b) The English Legislature, on the other hand, being theoretically ―omnipotent,‖
there is no law which it can not change. As has been already said, the individual
has rights, but they are founded on the ordinary law of the land; hence, they can be
changed by Parliament like other laws, so, there is no right which may be said to
be ‗Fundamental‘ in the proper sense of the term. Of course, there are
proclamations of certain individual rights in some constitutional charters and
documents like the Magna Carta and the bill of Rights, but these Charters were
merely declaratory of the existing common law, and were intended to be binding
upon the Executive and not upon parliament.
Owing to the absence of any fetter upon the Legislature, individual rights
may, in England, smoothly give way to the interests of the nation whenever the
representatives of the people so desire, according to the exigencies of the
situation. At any given time, thus, the rights of the citizen in England are merely
the residue of freedom left after the restrictions placed on the activity of the
citizens by the Legislature are defined. 97
All the words of the highest English tribunal –
96
Eshugbayi v. Govt. of Nigeria, (1931) 35 C.W.N. 755 (P.C.).
97
See Wade and Philliips, Constitutional Law, p. 35; Hood Phillips, Constitutional Law, 1957, p. 494; Keith,
Constitutional Law, pp. 16-18; Dicey, Law of the Constitutional, 9th Ed., Ch. V. Allen, Law in the Making,
1947, p. 252.
108
―All the Courts to-day and not least this House, are as jealous as they have ever
been in upholding the liberty of the subject. But that liberty is a liberty confined
and controlled by law…. It is, in Burke‘s words, a regulated freedom…. In the
constitution of this country, there are no guaranteed or absolute rights. The
safeguard of British liberty is in the good sense of the people and in the system of
representative and responsible government which has been evolved.‖98
Another vital consequence of the supremacy of Parliament is that the

English Courts have no power of judicial review of legislation at all. They cannot
declare any law as unconstitutional on the ground of contravention court made this
self – imposed restriction upon its power as against the Legislature –
―Acts of Parliament are laws of the land, and we do not sit as a Court of Appeal
from Parliament ….. If an Act of Parliament has been obtained improperly, it is
for the Legislature to correct it by repealing it; but so long as it exists as law, the
Courts are bound to enforce it.‖99
It is, therefore, natural to enquire what protects individual liberty against the
inroads of the omnipotent Parliament. The answer is – the sagacity of Parliament
itself, 100 at the back of which lies the inordinate love for liberty which is cherished
by every Englishman, and what is often called the ‗political genius‘ of the English
people – that which enables them to hold the ‗just balance between power and
liberty. 101
98
Liversidge v. Anderson, (1942) A.c. 206, Lord Bright.
99
Lee v. Bude Co., (1870) L.R. 6 C. P. 577 (582).
100
That is to say, ―Parliament is unlikely, except in emergencies, to pass legislation constituting a serious
interference with them (i.e., the liberties highly prized by the people‖) (Halsbury, 2 nd Ed., Vol. 6, para. 435).
101
Cf. MacDermott, Protection from Power, 1957, p. 195.
ARTICLE 12- CRITICAL ANALYSIS AND
JUDICIAL INTERPRETATION BY ROHIT
BAFNA & NITIN MITTAL
Introduction
Part III of the Constitution1 contains a long list of fundamental rights and protects
substantive as well as procedural rights. Apart from guaranteeing certain basic civil
Rights and freedoms to all, they also provide few safeguards to minorities, protecting
religious freedoms and cultural rights. The basic aim of having a declaration of
fundamental rights is that certain elementary rights such as right to life and personal
liberty, freedom of speech, freedom of faith, etc. shall be regarded as inviolable under
all conditions. During emergency, however, some curtailment of the Fundamental
rights does take place.
The Fundamental Rights2 in the Indian Constitution have been grouped under six
heads as follows:
 Right to Equality [Article 14-18]

 Right to Freedom [Article 19-22]
 Right against Exploitation [Article 23-24]
 Right to Freedom of Religion [Article 25-28]
 Cultural and Educational Rights [Article 29-30]
 Right to Constitutional Remedies [Article 32-35]
Analysis and Interpretation
State Defined
The word ‘STATE’ is defined under Article 12 of Part III of the Constitution which
says, “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.”
Essentials
Most of the fundamental Rights are claimed against the state and its instrumentalities
and not against private bodies. Article 13(2)3 bars the ‘state’ from making any laws
infringing any Fundamental Right.
Article 124 gives an extended significance to the term ‘state’. Article 12 clarifies that
the term ‘state’ occurring in Article 13(2) or any other provision concerning
Fundamental Rights, has an expansive meaning.

Symbiosis Law School, Noida
1
Constitution of India, 1950
2
Part III of the Constitution of India, 1950
3
According to Article 12 the term ‘State’ includes:
 The Government and Parliament of India i.e., Executive and Legislature of the
Union
 The Government and the Legislature of each State i.e., Executive and
Legislature of States.
 All Local Authorities.
 Other Authorities within the territory of India, or under the control of the
Central Government.
Scope and Purpose of State
John Locke says that the purpose of state is “common good or good of mankind”.
State is a body that which comes into existence for maintaining the life and upholds
the dignity of its individuals. Its purpose is to maintain the dignity and lifestyle of its
individual by holding their rights. Individual cannot have rights if state fails in its
function5
The framers of the constitution wanted to create a society in which all its citizen shall
acquire all the basic fundamental rights. Thus it became a duty on state to enforce all
the fundamental rights to the citizen so that they could overcome the oppression
casted upon them in British Era. Individuals need constitution protection against
state6. The rights provided in Part III of the Constitution7 are guaranteed against the
state and are distinguished from violation of rights by privates. Private actions are
protected by sufficient laws8.Majority of fundamental rights are enforceable against
state only9
Supreme Court observed that the object of Part III is to provide protection to the
rights and freedoms guaranteed under this part by the invasion of State. Part III and
Part IV carry a theme of Human Rights, Dignity of Individual and also of the unity
and dignity of the nation. These parts respectively act as a Negative Obligation of the
State and that is not to Interfere with the Liberty of the Individual, and Positive
Obligation of the State which is to take steps for the welfare of the Individual.10
Thus to enforce the liability of the right defining state was a mandate and by virtue of
article 12 it could have been done.‘In this part’ the definition in article 12 is only for
the purpose of application of the provisions contained in Part III. Hence, even though
a body of persons may not constitute ‘State’ within the instant definition, a writ under
article 226 may lie against it on non-constitutional grounds or on the ground of
4
Id
5
Gokle G.K., “ Modern views of political science” Himalayan Publication, Pg. 50
6
Pandey, JN ,”The constitutional law in India”, Central Law Agency,49th edition pg 59
7
8
Shamdasani V Central Bank of India AIR 1952 SC 59
9
VidyaVerma v Shivnarain AIR 1956 SC 108
10
State of West Bangal v. Subodh Gopal Bose, 1954 SCR 587.
contravention of some provision of the constitution outside Part III, example- where
such body has a public duty to perform or where its acts are supported by the State or
public officials.11
Article 226 confers wide powers on the high courts to issue writs in the nature of
prerogative writs. The words “any person or authority” used in article 226 are not
confined to statutory authorities and instrumentalities of State. They may cover any
person or body performing public duty. The form of the body concerned is not very
much relevant.What is relevant is the nature of duty imposed on the body. The body
must be judged in the light of positive obligation owned by the person or authority to
the affected party, no matter by what means the duty is imposed.12
Delhi High Court has held that for the purpose of issuing a writ of mandamus that the
office should be a creature under a statute. Public office is one where the powers and
duties pertaining to the office relate to a large section of the public. It was therefore
held that Principal of a private college is amenable to writ jurisdiction.13
Where the Statutory corporations are the “voice and hands” of Central Government,
they are ‘authorities’ under Article 12 of the constitution and will be considered as a
‘state’. A public authority is a body, which has public or statutory duties to perform
and which performs these duties and carries out its transactions for the benefit of the
public and not for the private profit. It was held that State is an abstract entity. It can
only act through the instrumentality or agency of natural or juridical persons.
Therefore, there is nothing strange in the notion of the State acting through a
corporation and making it an agency of the State.14
Even though a government company may be a “State” within the meaning of Article
12, as an agency or instrumentality of State, there does not exist a relationship of
principal and agent and only the action of the said authorities would be state action.15
Conversely, the definition in Article 12 cannot be used to interpret any provision

outside Part III, e.g., Article 311. Hence even though a statutory corporation,
exercising statutory powers, would be ‘State’ for the purpose of enforcing
fundamental rights against it, its employees cannot take advantage of Articles 309-11,
for, their services are held not under the Government of India or of a State, but under
a separate legal entity, even though that entity may be regarded as ‘State’ for the
purpose of Article 12, and its employees may resort to Article 32 for violation of their
fundamental rights by the corporation.
‘Unless the context otherwise requires’
The context of a provision in Part III may exclude the meaning given by Article 12 to
the word ‘State’. For instance, ‘security of state’ in Article 19(2) refers not to the
persons carrying on the administration of the State but to the State as an organized
political society.
11
Kartick v. W.B.S.I.C., AIR 1967 Cal 231 (234)
12
ShriAnandiMuktaSadguru Shree MuktajiVandas Swami SuvarnaJayantiMahotsavSmarak Trust v.
V.R. Rudani, AIR 1989 SC 1607 : (1989) 2 SCC 691 : 1989 (II) LLJ 324
13
KumKum v. Principal, Jesus & Mary College, AIR 1976 Del 35.
14
Sukhdev Singh v. BhagatramSardar Singh Raghuvanshi, AIR 1975 SC 1331 : (1975) 1 SCC 421
15
Idian Banks Association v. Devkala Consultancy Services, (2004) 11 SCC 1
‘Includes’
This word indicates that the definition is not exhaustive. Hence, even though the
definition expressly mentions only the Government and the Legislature, there might
be other instrumentalities of State action within the sweep of the definition.
The non-mention of the Judiciary does not indicate that the Courts are intended to be
excluded from the definition.16
Authority
‘Authority’ means a person or body exercising power, or having a legal right to
command and be obeyed. ‘An Authority’ is a group of persons with official
responsibility for a particular area of activity and having a moral or legal right or
ability to control others.17
“Authority” means a “public administrative agency or corporation having quasi-
governmental powers and authorized to administer revenue producing public
enterprise. “Authority”in law belongs to the province of power. Authority in
administrative law is a body having jurisdiction in certain matters of a public nature.
A government company carrying on commercial activities incorporated under the

Companies Act which does not have any power of making rules or regulations
binding as law, nor the power to administer or enforce such rules or regulation is not
an authority under this Article. The word “authority” includes Central and State
Government.
It also includes all constitutional or statutory authorities on whom powers are

conferred by law, including even autonomous bodies, and whether or not they are
under the control of the government or whether or not they may be regarded as agents
or delegates of the government.18
The ‘State’ also includes following bodies on the principal that if the body has the
power of making subordinate legislation or statutory orders, with the power to compel
obedience to them, it would be an ‘authority’ under Article 12:
A religious endowment Board having the power to make rules or bye-laws under a
statute.
The Chief Justice of high Courts having the power to make rules having the force of
law.
16
UjjamBai v. State of U.P., (1963) 1SCR 778 (968-9)
17
CAMBRIDGE INTERNATIONAL DICTIONARY
18
Basu, D.D. “Commentary on Constitution of India” Vol. I pg. 641
The object of including all ‘authorities’ within the term ‘State’ in this Part is to
enlarge the scope of the Fundamental Rights which shall thus be binding upon every
authority in India has the power to make laws, bye-laws, etc. or the power to enforce
them. But the widening of the scope of the word ‘State’ also widens the number of
authorities who are entitled to impose limitations upon the fundamental rights.
Local Authorities within the Territory of India
‘Local Authority’ means an authority legally entitled to or entrusted by the
Government with the control or management of a local fund. Hence Dock Labour
Board is a local authority. 19 But a “Gram Panchayat” does not come within the ambit
of ‘local authority’.
Local authorities are under the exclusive control of the States, by virtue of entry 5 of
List II of the 7th Schedule which contains a list of some local authorities. A ‘local
authority’ is defined in section 3 (31) of the General Clauses Act X of 1897.20
The authority concerned must have separate legal existence as a corporate body, it
must not be mere government agency but must be legally an independent entity; it
must be a function in a defined area and must ordinarily, wholly or partly, directly or
indirectly, be elected by the inhabitants of the area. It must also enjoy a certain degree
of autonomy either complete or partial, must be entrusted by statute with such
governmental functions and duties as are usually entrusted to municipal bodies such
as those connected with providing amenities to the inhabitants of the locality like
health and education, water and sewage, town planning and development roads etc.
Finally, such a body must have the power to raise funds for furtherance of its
activities and fulfillment of its objectives by levying taxes, rates, charges or fees.
Case Laws Relating To Local Authorities

In the case of Calcutta State Transport Corporation v. Commissioner of Income-tax,
West Bengal.21; Supreme Court refused to characterize the corporation as a ‘local
authority’. The corporation is meant only for the purpose of providing road transport
services and has no element of popular representation in its constitution. Its powers
and functions bear no relation to the powers and functions of a municipal committee.
It is more in the nature of a trading corporation.
In Premji Bhai Panwar v. Delhi Development Authority (DDA)22; the Delhi
Development Authority, a statutory body, has been held to be a ‘local authority’
because it is constituted for the specific purpose of development of Delhi according to
plan which is ordinarily a municipal function. The activities of the Delhi
19
BhikhariBehara v. Dhanapatia, AIR 1970 Cal 176
20
“ ‘local authority’ shall mean a municipal committee, district board, body of port commissioners or
other authority legally entitled to, or entrusted by the Government with, the control or management of a
municipal or local fund.”
21
AIR 1996 SC 1316 : (1996) 8 SCC 758
22
AIR 1980 SC 738 (1980) 2 SCC 129
Development Authority are limited to Delhi. It has some element of popular
representation in its composition and enjoys a considerable degree of autonomy. 23
23
Other Cases Relatedto Local Authorities: Ajit Singh v. State of Punjab (AIR 1967 SC 856 : (1967) 2
SCR 143), State of Gujarat v. ShantilalMangaldas (AIR 1969 SC 634 : (1969) 1 SCC 509), J. Hiralal v.
Bangalore Municipality (AIR 1982 Knt. 137)
Analysis and Interpretation- Other Authorities
3.5 OTHER AUTHORITIES

It refers to authorities other than those of local self-Government, who have the power
to make rules, regulations, etc., having the force of a law.
The interpretation of the term ‘other authorities’ in Article 12 has caused a great
difficulty and judicial opinion has undergone changes over time. Thereby the most
debatable topic of the article is the crux of authorities covered in ambit of “other
authorities” in article 12. The meaning and scope of this could be left only to the
interpretation of courts. It could be observed that “other authorities” could be
authorities of like nature24 i.e. Ejusdem Generis.
However this doctrine was rejected by Supreme Court and it was observed that
“Ejusdem Generis rule could not be restored in interpreting this expression”. There is
no common genes running through these named bodies nor can these bodies so placed
in one single category on any rational basis25 and thus there is no common genes in
‘other authorities’ under Article 12.26
The expression of “other authorities is so wide in itself that it could have covered all
authorities created by constitution or state on whom power are conferred by law. It is
not necessary that statutory authority should be engaged in performing governmental
or sovereign function27. Supreme Court of India came up with more broad and liberal
interpretation of “other authorities” so as to include all those bodies or
instrumentalities which are though not created by the constitution or by a statute of
government. They evolved the Doctrine of Instrumentality.
DOCTRINE OF INSTRUMENTALITY
The ambiguities laid to the establishment with contradicting interpretation were given
a kind of stability with the evolution the doctrine so as to provide a better
interpretation.
Therefore to provide the clear and liberal interpretation the supreme court in the case
of RamanaDayaramShetty v International Airport Authority of India:28it held pointed
out that the corporations acting as instrumentality or agency of government would
obviously be subject to the same limitations in the field of constitutional or
administrative law as the government itself, though in the eyes of law they would be
distinct and independent legal entities.
Held that if a body is an agency or instrumentality of the government it may be an
authority in art 12. The court also laid down few of the test which can test that the
authority can fall within the limit of authority in article 12 of the constitution. These
tests are as follows:
The cumulative effect of all the following factors has to be seen:
24
University of Madras v Santa Bai AIR 1954 SC 67
25
Basu, D.D. “Commentary on Constitution of India” Vol. I pg. 643&Pandey, JN ,”The constitutional
law in India”, Central Law Agency,49th edition pg. 60
26
Housing Board v. H.H.B.E.U., AIR 1996 SC 434 (para. 52)
27
Rajasthan Electricity Board v Mohan Lal, AIR 1967 SC 1857
28
AIR 1979 SC 1628
1. “If the entire share capital of the corporation is held by government, it wouldgo a
long way towards indicating that the corporation is an instrumentality or agencyof
government.”
2. The existence of “deep and pervasive State control may afford an indicationthat the
Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys monopolystatus
which is State conferred or State protected.”
4. “If the functions of the corporation are of public importance and closelyrelated to
governmental functions, it would be a relevant factor in classifying thecorporation as
an instrumentality or agency of government.”
5. “Specifically, if a department of government is transferred to a corporation, itwould
be a strong factor supportive of this inference” of the corporation being
aninstrumentality or agency of government.
However Court said that these test are not conclusive but illustrative only and will
have to be used with care and caution
WHO ALL COMES UNDER THE AMBIT OF OTHER AUTHORITIES?

There is no common feature running through the various bodies, which have been
held to be covered by the expression ‘other authorities’.
The expression refers to-
 Instrumentalities or agencies, of the Government and Government

Departments. But every instrumentality of the Government is not necessarily a
‘Government Department’.29
Every type of public authority, exercising statutory powers, whether such powers are
governmental or quasi-governmental or non-governmental and whether such authority
is under the control of Government or not, and even though it may be engaged in
carrying on some activities in the nature of trade or commerce.30
An authority set up under a statute for the purpose of administering a law enacted by
the legislature, including those vested with the duty to make decisions in order to
implement them. 31
 A private body or a company

 Society registered under the Societies Registration Act
 Corporation set up under the State Financial Corporation Act, 1951
 A non-statutory body, exercising no statutory powers32 is not ‘State’:
 A company
 Private bodies having no statutory power, not being supported by a State act.
29
State of Punjab v. Raja, (1981) 3 SCC 66 (paras. 9-10).
30
Railway Board v. Observer Publications, (1972) 1 SCWR 696 (704)
31
Mashtan v. Chief Commissioner, AIR 1963 SC 533
32
Debdas v. K.E. College, AIR 1964 Raj 6 (11)
 A society registered under the Societies Registration Act, unless it can be held
that the Society was an instrumentality or agency of the State, or exercises
statutory power to make rules, bye-laws or regulations having statutory force.
 An autonomous body which is controlled by the Government only as to the
proper utilization of its financial grant.
 Even a private body or a corporation or unaided private school may, however,
be included within the definition of ‘State’ if it acts as an ‘agency’ of the
Government.33
 In determining whether a corporation or a Government company or a private
body is an instrumentality or agency of the State, the following tests would be
applicable:34
 Whether the entire share capital is held by the Government.

 Whether the corporation enjoys monopoly status conferred by the State.
 Whether the functions of the corporation are governmental functions or
functions closely related thereto which are basically the responsibilities of
a Welfare State.
 If a department of the Government has been transferred to the corporation
 The volume of financial assistance received from the State.
 The quantum of State control.
 Whether any statutory duties are imposed upon the corporation.
 The character of the corporation may change with respect to its different
functions.
 Even amongst these factors, no one single factor may not yield a
satisfactory answer, the court will have to consider their cumulative
effect.35
SOME IMPORTANT CASE LAWS RELATING TO “OTHER

AUTHORITIES” UNDER ARTICLE 12
In Rajasthan State Electricity Board v. Mohanlal36; the Supreme Court ruled that a
State electricity board, set up by a statute, having some commercial functions to
discharge, would be an ‘authority’ under Article 12. The court emphasized that it is
not material that some of the powers conferred on the concerned authority are of
commercial nature. This is because under Article 298, the government is empowered
to carry on any trade or commerce. Thus, the court observed: “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 the scope of the word ‘state’ is used in Article 12.
33
Sukhdev v. Bhagatram, AIR 1975 SC 1331 (1335, 1359-60)
34
Central Inland Water Corporation v. BrojoNathGanguly, AIR 1986 SC 1371 (paras. 23, 24, 69)
35
Tekraj v. Union of India, AIR 1988 SC 489
36
AIR 1967 SC 1857 : (1967) 3 SCR 377
In Sukhdev Singh v. Bhagatram37 the Supreme Court following the test laid down in
Electricity Board Rajasthan’s case by 4:1 majority held that Oil and Natural Gas
Commission, Life Insurance Corporation and Industrial Finance Corporation are
authorities within the meaning of Article 12 of the 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. The rules and
regulations framed by the above bodies have the force of law. The terms of contract
with a particular employer is prescribed by the statute itself. These regulations are
binding on these bodies. The employees of these statutory bodies have a statutory
status and they are entitled to declaration of being in employment when their
dismissal or removal is in contravention of statutory provisions. The employees are
entitled to claim under Articles 14 and 16 against the corporation.
In RamanaDayaramShetty v. International Airport Authority of India38, Justice

Bhagwati preferred the broader test as suggested by Justice Mathew in Sukhdev v.
Bhagatram case. In this case the Court has held that if a body is an agency or
instrumentality of government it may be an ‘authority’ within the meaning of Article
12 whether it is statutory corporation, a government company or even a registered
society. Accordingly, it was held that the International Airport Authority which had
been created by an Act of Parliament was the “State” within the meaning of Article
12. The Central Government had power to appointment of any member form the
Board. The capital needed by it was provided only by the Central Government. But
what is the test whether a body is an agency or instrumentality? The Court laid down
the following tests for determining whether a body is an agency or instrumentality of
the Government:
 Financial Resources of the State

 Existence of Deep and Pervasive State Control
 Function of Governmental Essence
 Department turned into a Corporation
 Monopoly Status
In SomPrakash v. Union of India39; the company was held to fall under Article 12.
The Court emphasized that the true test for the purpose whether a body was an
‘authority’ or not was not whether it was formed by a statute, or under a statute, but it
was “functional”. In the instant case, the key factor was “the brooding presence of the
state behind the operations of the body, statutory or other”. In this case, the body was
semi-statutory and semi-non-statutory. It was non-statutory in origin; it was also
recognized by the Act in question and thus had some “statutory flavour” in its
operations and functions. In this case, there was a formal transfer of the undertaking
from the Government to a government company. The control by the Government over
37
AIR 1967 SC 1857
38
AIR 1979 SC 1628
39
AIR 1981 SC 212
the corporation was writ large in the Act and in the factum of being a government
company. Agency of a state would mean a body which exercises public functions.
In Ajay Hasia v. Khalid Mujib40; it has been held that a Society registered under the
Societies Registration Act, 1898, is an agency or “instrumentality of the State” and
hence a “State” within the ambit of Article 12. Its composition is determined by the
representatives of the Government. The expenses of society are entirely provided by
the Central Government. The rules made by the society require prior approval of the
State and is completely controlled by the Government. The government has the power
to appoint and remove the members of the society.
Thus, the State and the Central Government have full control of the working of the
society. In view of these elements the society is an instrumentality of the State or the
Central Government and it is therefore an “authority” within the meaning of Article
12.
In S.C. Chandra v. State of Jharkhand41; the question which arose for decision was
whether the teachers of a school not owned by BCCL and was run by Managing
Committee and whose teachers were never appointed by BCCL, although BCCL used
to release non-recurring grants subject to certain conditions would result in such
teachers to be considered as the employees of BCCL and entitled to all benefits
available to the regular employees of BCCL.
40
AIR 1981 SC 487
41
(2007) 8 SCC 279 : AIR 2007 SC 3021
Analysis and Interpretation- State as Judiciary and Non Governmental Bodies
The Supreme Court judgement in this case was a common one and involved, amongst
others Bharat Coking Coal Limited. Without any discussion, the Court approved the
view taken by the Division Bench of the Jharkhand High Court that BCCL was “not
an instrumentality of the State as per Section 617 of the Companies Act as its
dominant function was to raise coal and sale and imparting education was not its
dominant function.
3.6 WHETHER ‘STATE’ INCLUDES JUDICIARY?

In USA it is well-settled that the judiciary is within the prohibition of the 14 th
Amendment.42 The judiciary, it is said, though not expressly mentioned in Article 12
it should be included within the expression ‘other authorities’ since courts are set up
by statute and exercise power conferred by law.43
Judiciary in India to be included under the ambit of ‘State’ arose in the case of Naresh
v. State of Maharashtra44 which observed that "while exercising the rule making
powers the judiciary is covered by the expression state with Art.12 but while
performing its judicial functions it is not so included."
Thereby a court may be sued for a violation of the fundamental right to the extent
only till it is performing its administrative function. The point it began it judicial
function it does not violate any fundamental right and cannot be taken as “State”.
3.7 STATE AS NON-GOVERNMENTAL BODIES

It could be observed that any society registered under society Registration Act of
1898 is an“agency” or “instrumentality of the state”.45 It shall be seen that individual
or an organization performing the essence of government or in support of a
government or is discharging a duty of state can be considered as a “State”.
The composition is determined when the representative of government, its expenses

are at the cost of the government. The rules made for society are in accordance with
the government and it shall also comply with all directions of the government and it
should be obviously governed by government then it can be noticed that Non-
Statutory bodies are a ‘State’.
The Supreme Court by a majority judgement held that the Board of Control for
Cricket in India (BCCI) is not a ‘State’ or ‘authority’. It was held that merely because
a non-governmental body exercises some public duty, that by itself would not suffice
to make such body a State for the purpose of Article 12.
Hon’ble Supreme Court held since the State is today distancing itself from
commercial activities and concentrating on governance rather than business, situation
prevailing at the time when, was decided is not in existence and there is no need to
further expand the scope of “other authorities” in Article 12 by judicial interpretation
42
Virginia v. Rives, (1880) 100 US 313 (318)
43
Shukla, V.N. “Constitution of India”, pg. 20 (5th edition)
44
AIR 1967 SC 1
45
Ajay Hasia v Khalid Mujib, AIR 1981 SC 487
“at least for the time being”. It was further held that in a democracy there is a dividing
line between a State enterprise and a non-State enterprise which is distinct and the
judiciary should be an instrument to erase the said dividing line, unless the
circumstances of the day requires it to do so.46
Unaided Schools even do not cover the ambit of state even though the providing
education is a chief essence of the government. Thus it shall be observed that all
authorities which are performing the essence of the government and directly or
indirectly under or over the control of government form the State47
An authority which is located outside India may still come under the definition of
‘State’ under Article 12 is it us under the control of the Government of India These
words extend the application of the fundamental rights to areas outside the territory of
India, which may be under the control of the Government of India for the time being,
e.g., mandatory and trust territories which might be placed by international
organizations under the control of the Government of India. This article explains that
India would not discriminate, so far as the fundamental rights of individuals are
concerned, between its own nationals and the people of other countries, which might
come under the administration of India under some international arrangement,
agreement or the like. 48
The Supreme Court has however given to the above words a meaning different form
that given in the Constituent Assembly. According to the Supreme Court, the words
‘under the control of the Government of India’ control the word ‘authorities’ and not
the word ‘territory’.49
3.8 WHETHER THE STATE ITSELF CAN CLAIM OR ENFORCE A

FUNDAMENTAL RIGHT
In State of West Bengal v. Union of India,50 SINHA, C.J., for the majority, set forth a
proposition that under the Indian Constitution fundamental rights may be claimed not
only by individuals and corporations but sometimes also by the State. His Lordship
was obliged to assert this proposition as a concomitant of his major conclusion that
the Union may acquire the property of a State Government by making a law of
46
Zee Telefilms Ltd. V. Union of India, (2005) 4 SCC 649
47
Chandra Mohan Khanna V. NCERT, AIR 1992 SC 76
48
Dr. Ambedkar, Constituent Assembly Debates, Vol. VI, pg. 607
49
Pradeep Kumar Biswas v. Indian Distribution of Chemical Biology, (2002) 5 SCC 511 (supra)
50
(1964) 1 SCR 371 (430)
compulsory acquisition under Article 31 (2) gives rise to a right to compensation in

favour of the expropriated owner which should logically belong to the State when
property belonging to it is compulsorily acquired by the Union.
According to my view point, I would criticize this majority judgement in this above
case from various standpoints. The observation does not deal with the question
whether, according to juristic principles, a fundamental right is intended for protection
of individuals or for the State as well and that a corporation can claim some of the
fundamental rights do not warrant the extension of that principle to the State
The proposition that fundamental rights were intended for the State as well runs
counter to the basic philosophy and history of fundamental rights that certain minimal
rights of the individuals were guaranteed by a written Constitution against the
exercise of arbitrary government authority; there was no question of protecting one
limb of the same federal State against another.51
This can be possible only if there is an express provision to that effect, such as Article
131, and the conditions of that article are satisfied. But the enforcement of
fundamental rights would not be covered by any of these exceptions to Article 131.
Hence, Union or State Governments cannot sue each other for violation of their
supposed fundamental rights.52
51
State Trading Corporation v. C.T.O., (1964) 4 SCR 99 (155)
52
State of Bihar v. Union of India, AIR 1970 SC 1446 (1449)
LAW MANTRA THINK BEYOND OTHERS
(International Monthly Journal, I.S.S.N 2321 6417)
Journal.lawmantra.co.in www.lawmantra.co.in
THE CONCEPT OF ‘STATE ACTION’
United States of America
Since the First Ten Amendments and The Fourteenth Amendments are intended to protect the
fundamental rights from arbitrary invasion by the State, it has become necessary to interpret
the word ‘State’ whenever an individual complains of such invasion by the State. In order to
give adequate protection to the individual against all forms of arbitrary action by the
governmental authority, the American Supreme Court has enlarged the concept of ‘State
action’ as far as possible. Thus it has been held that the prohibition in the 14th Amendment
extends to any State action, legislative, executive or judicial and against any agency exerting
any of these powers of the State.
The concept has been extended to the functions of a Committee of the Legislature while
exercising the privileges of the House, e.g., the power to summon a witness and to compel
him to testify for the purpose of a legislative investigation53 and a political party which
performs a statutory function in connection with an election.54
India
Early Judges of the Supreme Court who sought to avoid American Constitutional decisions as
much as possible would be shocked to see what their successors are doing in infusing
American Constitution into our Constitution as much as possible. An instance to the point is
the doctrine of ‘State action’
The expansion on this subject has been due to the anxiety of the recent judges to exclude
arbitrariness from all State action, by applying the expanded meaning of Article 14.
The ambit of the application of the Doctrine of State Action has been widened in two
directions:
By expanding the list of authorities coming under the definition of ‘State’ in Article 12.
Extension of the sphere of governmental action which would be hit by Article 14.
According to this facet of expansion, Article 14 will be attracted not only where the
impugned State act is discriminatory or where the classification made is irrational, but where
the State act, as such as arbitrary, unreasonable or unfair. 55
The latest development in this sphere is the extension of the doctrine to contracts entered into
by the Government.56
EXPANDING THE SCOPE OF ARTICLE 12
53
Watkins v. U.S., (1956) US 178 (197)
54
Steele v. L. & N. R. Co., (1944) 323 US 192
55
Maneka Gandhi v. Union of India, AIR 1978 SC 597
56
Dwarkadas v. Board of Trustees, AIR 1989 SC 1642 (paras. 25-27)
Volume 2 ISSUE 5
The Recommendation of the National Commission to Review the working of the
Constitution, 2002
The recommendation of the national commission to review the working of the Constitution to
increase the scope of the article 12 represents the need of the day to include the private bodies
under the purview of judicial review in certain cases. The commission has recommended that
in article 12 of the Constitution, the following explanation should be added; ‘Explanation: -
In this Article, the expression “other authorities” shall include any person in relation to such
as it functions which are of a public nature.’
The debate is bound to continue because most of the cases coming up in the past relate to
service matters. However, considering the recent trends from the side of the government
towards divestment and privatization of government undertakings, the issue regarding the
government undertakings being considered as state can escape its responsibility or liability
for the protection of fundamental rights on the plea of that they are the actions of private
bodies or persons and not of the State.
Therefore, the only solution lies in this aspect that India must take note of the reality, the
might of the private bodies or persons is comparable to that of public authorities and it must
be put under the constitutional discipline of fundamental rights.
The concept of “the State” in the Constitution of India which has created various
interpretational controversies is the meaning of the term “the State” as defined in article 12 of
the Constitution of India, to avoid these controversies there is a need to expand either as
recommendations given by the National commission to review the working of the
Constitution or new article 12A should be inserted relating to for the purpose of particularly
private bodies or persons to making them subject to fundamental rights.
Contemporary concept in the United Kingdom
The section 6(3)(b) of the United Kingdom Human rights Act, 1998 defines ‘Public
Authority’ as “any person certain of whose functions are functions of a public nature”, this is
a positive move towards the definition of public authority, emphasizing much on the function
and not the source of power.
In R v Panel on Take-overs and Mergers, ex parte Datafinplc and another57, the Court
exercised the power of the judicial review over a private body. Lloyd L.J. in his separate
speech opined: “……. But the reason why a club is not subject to judicial review is not just
because it is self-regulating. The panel wields enormous power it has a giant’s strength. The
fact that it is a self regulation, which means, presumably, that it is not subject to regulation by
others, and in particular the Department of Trade and Industry makes it not less but mere
appropriate that it should be subject to judicial review by the courts”.
Therefore, the source from which the body derives power is not determinative, but rather the
nature of the power being exercised must be looked into. Thus it shall be deemed as the
restriction of “State” is not a matter of subjectivity of the governmental essence in England
rather than subject to the nature of administration and derived authority.
57
1987 WLR 699.
Volume 2 ISSUE 5
CONCLUSION
The word ‘State’ under Article 12 has been interpreted by the courts as per the changing
times. Through various case laws & their judgements given by The Court and also through
various different viewpoints of different judges in giving those judgements or different law
writers in their books or law scholars or law students is what which has gained wider
meaning for the term ‘other authorities’ and there is a need now to finally define this
important term in context to Article 12 i.e. “STATE”
Volume 2 ISSUE 5
CHAPTER-3
THE CONCEPT OF STATE ACTION UNDER ARTICLE 12 OF THE INDIAN

CONSTITUTION
3.1 Introduction
The concept of State Action is not defined in the Constitution rather it is a

concept which is implied in Article 12 of the Constitution of India. The Article is the
first article in Part III of the Constitution and it enlists the fundamental rights
guaranteed to the people. Defining State was necessary as the Fundamental Rights
are expressly guaranteed against the State. The Article has been put to judicial
scrutiny in a number of cases. In most of the cases the Court has analyzed the fact
situations existing at the particular time and made the judicial meaning of the
term in tandem with the political and economic changes and its impact on State
and its role in the society. In this way an array of institutions are kept under the
purview of judicial scrutiny.
Though the language in Article 12 is plain, the term ‘other authority’ is put
to test quite a number of times. In order to extract the true meaning of the term
and to further the purpose of fundamental rights the judiciary has evolved the test
of instrumentality or agency under which various criteria’s are laid out, one such
important test is ‘Public Functions Test,’ other tests being deep and pervasive
state control test, government monopoly test etc. The cumulative effect of all the
tests is necessary to hold an authority as ‘other authority’ and thereby state under
Article 12. These tests try to render a meaningful link between the authority in
question and the government.
Despite playing its role as ‘social engineer’ while analyzing the cases what
can be seen is that the various tests acts as a limitation upon the further enlargement
of the concept of State Action though constitution framers intended to give wide
meaning to Article 12. The response of the judiciary towards the changing socio-
economic transformations is also evident from the observations given in the
judgment. In this background the Chapter presents a careful analysis of the
development and scope of the definition of State under Article 12 and also how the
strait jacket formulation of the tests to determine the State Action concept has
80
made the law static in extending its application to private bodies exercising public
functions.
3.2 Enforcement of Fundamental Rights against the State
‘Every State is known by the right that it maintains.’1 Just as a written law
evolved from the concept of natural law as a higher law so the Fundamental Rights
may be said to have sprung from the doctrine of natural rights. 2 As the Indian
Supreme Court has put it “Fundamental Rights are the modern name for what have
been traditionally known as natural rights.”3 The political implication of the theory of
natural rights is that these rights being inherent in man existed even prior to the birth
of the State itself and cannot, therefore, be violated by the State.
The doctrine of natural rights passed into the realm of practical reality for the
first time in the form of Magna Carta when King John was made to acknowledge that
there were certain rights of the subject which could not be violated even by a
sovereign in whom all power was vested as per Social Contract Theory. Further the
theory of natural rights entered into the realm of constitutional realism with two
revolutionary documents American Declaration of Independence and French
Declaration of Rights of Man.4
The American Declaration of Independence drafted by Jefferson is clear and

unequivocal on this point when he Stated that “all men are created equal, and are
endowed by their Creator with certain unalienable Rights among these are Life,
Liberty and the pursuit of happiness.” 5 As per the American concept, fundamental
rights are not matters to be drawn into the vortex of political controversy or to be
placed at the mercy of legislative majorities instead they are to be definitely
recognised in the constitution and protected against any violation either by the
1
HAROLD J. LASKI, A GRAMMAR OF POLITICS (1925).
2
(In the words of Blackstone natural rights were founded on nature and reason so they coeval with
form of government) BLACKSTONE COMMENTARIES 127-28 (1765).
3
Golak Nath v. State of Punjab A.I.R. 1967 SC 1643 at para.16.Per SUBBA RAO J.
4
THE FRENCH DECLARATION OF THE RIGHTS OF MAN (1791) reinforces the concept of
natural, inalienable, imprescriptible rights i.e.; the fundamental rights against the absolute monarchs.
(French Declaration reads ii. The end of all political associations is the preservation of the natural and
imprescriptible rights of the man and these rights are Liberty, Property, Security and Resistance of
Oppression).
5
(The philosophy of John Locke and his tenets of Puritan Revolution permeates both the Declaration
of Independence of 1776 and the Federal Convention of 1787. To him man is amenable to reason and
susceptible to the claims of conscience, endowed by his creator with these potentialities, man can shape
his role in society and determine the kind of government to which he will give his concept) MARIAN
D. IRISH & JAMES W. PROTHRO POLITICS OF INDIAN DEMOCRACY 215 (2nd ed. 1964).
81
Legislature or through an independent or impartial judiciary. The doctrine of limited
government – the idea that government may not deny the “unalienable rights “of the
people – is thus fundamental in the American approach to civil rights.6
Similarly, the Indian Constitution Part III of the Constitution enlists

fundamental rights and this chapter is called as the Magna Carta of the Indian
Constitution. It is more elaborate than the Bill of Rights contained in any other
existing Constitution of importance and covers a wide range of topics. The inclusion
of this chapter on fundamental rights is to preserve the basic elementary rights such as
right to life, liberty, fundamental freedoms which should be regarded as sacrosanct
with least interferences from the people in power. Fundamental rights were
incorporated on the idea that a code of social philosophy regulating the conduct of
everyone will remind the legislatures and executive whenever they begin to trample
over rights that they are treading on a prohibited area, and also to provide an
opportunity for citizens to create public opinion against such measures.7
Indian Constitution preserves the natural rights against State encroachments

and constitutes the higher judiciary of the State as the sentinel of the said rights.8 The
reason is that the freedom fighters in India had learnt from their experience that even
a representative assembly of men might be arbitrary and hostile to the cherished rights
of men. As Laski wrote; “and Indians believed in the ‘federation of minorities’ a
declaration of rights was as a necessary as it had been for the Americans when they
first established their federal constitution”9
The constitution framers did not find State as a necessary evil but rather as a
means to an end; welfare of the people being the end and State as a means and with
that aim in mind they had imposed positive obligation on the State to realize certain
socio-economic rights when it state capable of doing so 10 and that forms a very
important feature of Indian Constitution viz; Directive Principles of State Policy
(DPSP) under Part IV of the Constitution which are the Directives given to the State
6
On the contrary USSR established a Communist government wherein the State is more powerful and
the private citizen enjoys only those liberties that the government finds it expedient to grant him.
7
M.V. PYLEE, CONSTITUTIONAL GOVERNMENT IN INDIA 190 (1968).
8
D.D.BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW 55 (2nd ed. 2005).
9
HAROLD J. LASKI, supra note 1, at p. 97
10
CONSTITUTION OF INDIA art.37 (“The provisions contained in this Part shall not be enforceable
by any court, but the principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles in making laws.”).
82
under the Constitution for establishment of a Welfare State. 11 “The fundamental
Rights and Directive Principles together constitute the conscience of the
Constitution.” 12 Although the Rights and Directives appear in the Constitution as
distinct entities, it was the Assembly that separated them; the leaders of the
Independent movement had drawn no distinction between the positive and negative
obligations of the State.13
Although it is primarily against the might of the State that the individuals need
protection, the Constitution barring a few exceptions protects fundamental rights of
the people against the even private parties. Fundamental rights are protected against
private persons under Articles 15 (2), 14 17, 15 23, 16 25(2)(b), 17 28(3) 18 and 29(2). 19
Thus the State in addition to obeying the Constitutions’ negative injunctions not to
interfere with certain of the citizens’ liberties must fulfill its positive obligation to
11
CONSTITUTION OF INDIA art.38(1) (“The State shall strive to promote the welfare of the people
by securing and protecting as effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.”).
12
GLANVILLE AUSTIN, INDIAN CONSTITUTION: CORNERSTONE OF A NATION 50 (1985).
13
Id. at 52.
14
CONSTITUTION OF INDIA art. 15(2) (Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.-(2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or condition with regard to-(a)
access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells,
tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public).
15
CONSTITUTION OF INDIA art.17 (“Abolition of Untouchability.-“Untouchability” is abolished and
its practice in any form is forbidden. The enforcement of any disability rising out of “Untouchability”
shall be an offence punishable in accordance with law.”).
16
CONSTITUTION OF INDIA art. 23(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 purposes, 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.”).
17
CONSTITUTION OF INDIA art. 25(1) (“Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion.(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law-(a) regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice; (b)
providing for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.”).
18
CONSTITUTION OF INDIA art. 28(3) (“No person attending any educational institution recognized
by the State or receiving aid out of State funds shall be required to take part in any religious instruction
that may be imparted in such institution or to attend any religious worship that may be conducted in
such institution or in any premises attached thereto unless such person or, if such person is a minor, his
guardian has given his consent thereto.”).
19
CONSTITUTION OF INDIA art. 29(1) (“Any section of the citizens residing in the territory of India
or any part thereof having a distinct language, script or culture of its own shall have the right to
conserve the same.(2) No citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any
of them.”).
83
protect the citizens ‘rights from the encroachment by society. 20 Further for the
purpose of Part III and Part IV State is particularly defined under Article 12 of the
Indian constitution. Article 12 is the key to Part III and unless an authority can be said
to be a ‘State’ within the meaning of Article 12 none of the provisions of Part III
which relate to the ‘State’ will apply to such authority.21 Moreover for the effective
enforcement of fundamental rights Article 32 is incorporated which is aptly described
by Dr. B.R. Ambedkar as the very heart and soul of the Indian Constitution.22
3.3 Constitutional Background of Article 12
A perusal of the Constitution Assembly Debates of India (CAD) itself will

reveal that the Constitution makers wanted fundamental rights to be at a high
pedestal than that of other rights. Under the Draft Constitution it was Article 7
which gave the definition of State.23 The definition has been used in order to avoid
the inconsistency which existed under the Draft wherein the Indian State and
Province was treated in a separate footing.24
The objective behind defining state was to provide an impetus to the

effective enforcement of fundamental rights.25 The expression state under Article 12
20
Supra note 8 (Moreover the framers appear to have taken the above precautions in view of the
experience of U.S.A. where it had been held by the Supreme Court in Civil Rights Cases 109 U.S. 3
(1883) that the equal protection clause of the Fourteenth Amendment inserted after the civil war was
limited in its application to only against the State Action).
21
The University of Madras v. Shanta Bai A.I.R. 1954 Mad. 67 (In this case the question was whether
the direction issued by the University to its affiliated college to prevent it from admitting girl students
was valid or not. The direction was given because the college lacked facilities to be accommodating
girls. It was alleged by the respondent college that the direction violated Article 15 (1) and 29 of the
Constitution).
22
VII CONSTITUTIONAL ASSEMBLY DEBATES 953 (1949).
23
VII CONSTITUTION ASSEMBLY DEBATES, (1948) DRAFT CONSTITUTION art. 7 (“In this
part unless the context otherwise requires, ‘the State’ includes the Government and the 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.”).
24
DR. SUMAN SHARMA, STATE BOUNDARY CHANGES IN INDIA: CONSTITUTIONAL
PROVISIONS AND CONSEQUENCES, 162 (1995) (In the First Schedule, the Indian States have
been put in Part III while the Provinces have been put in Part I and in Article 3 Part I and II were
treated separately. Whereas, in respect of the States under Part I their Legislature was only be
considered, Shri Raj Bahadur of United States of Matsya wanted to change this state of affairs and he
felt that people of the Indian States should be treated on equal footing with the people of the provinces
and equal rights and opportunities should be provided to them. He observed that the Constituent
Assembly was committed to the principle of unification and of democratization of the entire Union and
as such cannot be contemplated by any provision of the Draft Constitution that there can be some sort
of a different treatment between Provinces and the States).
25
VII CONSTITUTION ASSEMBLY DEBATES 607-610 (1948) (While initiating a debate on this
Article in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar described the scope of
this Article and the reasons why this Article was placed in the Chapter on fundamental rights.
According to him the object of fundamental rights is twofold firstly, to enable every citizen to claim
84
enumerates the authorities against which fundamental rights can be claimed and also
it binds such authorities with the obligation to abide by and to respect the
fundamental rights of the people. In the Constituent Assembly there had been
divergent opinions concerning the phraseology of Articlel2 since it was couched in
the widest extent possible.26 But Dr. B.R. Ambedkar insisted on its retention so that
fundamental rights could be claimed against anybody or authority exercising power
over the people. 27 By ‘authority’ he meant every authority which has got either
power to make law or an authority on which discretionary power is vested. Besides
a closer look at the Article reveals that the words have been added in such a manner
as to help the law givers to interpret the term with the changing needs of the society
and that is the spirit of the framers of the constitution to make it a 'living document'
which will stand the test of the time.28
The definition of the term State under Article 12 is inclusive and not
exhaustive. The language of Article contains two important flexibility terms to cope
up with the challenges posed by the society. The first one is the “inclusive nature”
of the definition, which is evident through the use of the expression “includes”
which can be used to accommodate new entities within the scope of Article 12.
Therefore, authorities not specified in the Article may also fall within it if they
otherwise satisfy the characteristic of the ‘State’ or if they perform any functions
ordinarily performed by the Government. The second is use of the expression
“unless the context otherwise” that allows the use of the concept of State in different
situations in different manner and context. For instance, the context of Article 21,
providing right to life or personal liberty, requires the widest and frequent use of the
concept of State to make those rights a meaningful reality.
It is to be noted that the definition is applicable to Part III and as per Article
36 to Part IV as well.29 Merely because an authority is a ‘state’ does not make its
those rights secondly, and to make it binding upon every authority. He insisted on the retention of
Article 12 so that the fundamental rights could be claimed against anybody or authority exercising
power over the people).
26
Id. Opposition was raised by Mahhoob Ali Baig Sahib Bahadur from Madras.
27
UDAI RAJ UDAI, FUNDAMENTAL RIGHTS AND THEIR ENFORCEMENT 690 (2011).
28
Id. at 17.
29
CONSTITUTION OF INDIA art. 36 (“In this Part, unless the context otherwise requires, “the State”
has the same meaning as in Part III.”).
85
employees civil servants. 30 Also ‘local authorities’ are ‘state’ but that does not
entitle them to claim their status as State Government or Central Government. The
reason is that there is distinction between ‘state’ and ‘government,’ 31 also public
corporations cannot be considered as government departments under the state.32
3.4 Nature and Scope the Concept of State Action in India
The doctrine of state action is not defined in the Indian Constitution rather it
is implied in Article 12 of which defines State for the purpose of Part III. It
enumerates a list of authorities against which fundamental rights can be enforced by
invoking the writ jurisdiction if Supreme Court and High Court. As per the Article,
State includes the Government and Parliament of India and government and
legislatures of each state in India. It also includes local and other authorities within
the territory of India and local and other authorities under the control of
Government of India.33
(a) Government and the Legislatures
It is explicitly mentioned in Article 12 that State includes Parliament of India

and the State Legislature and State Executive by virtue of the functions and powers
exercised by these bodies. Besides, Article 32 empowers the Supreme Court to issue
writs against the Government of India as well as the State Government and also
Article 226 expressly includes government as one of the persons against whom a
writ may be issued.34 In case of legislature also Article 32 and 226 are enforceable
30
Rajith Ghosh v. Damodar Valley Corporation AIR 1960 Cal. 549; S.L. Agarwal v. GM, Hindustan
Steel ltd. (1970). 3 SCR 363 (It was held that Hindusthan Steel Ltd. Was not a Department of the
Government of India and the employees did not hold a civil post and as such were not entitled to the
protection of Article 311 of the Constitution).
31
`(Local authority' shall mean a Municipal Committee, District Board, Body of Port Commissioners or
other authorities legally entitled to, or entrusted by the Government with, the control or management of
a municipal or local fund). Natwar Ghodidas v. District Panchayat, Jamnagar AIR 1990 Guj. 142 (In
this case under Section 32 of the Bombay Civil Courts Act, 1869, a suit against Central or State
Government could be filed only in the Court of Civil Judge (Senior Division) A suit was filed in the
Court of Civil Judge (Junior Division). challenging the suspension of an employee of a Panchayat. It
was held that the suit was correctly filed in that Court).
32
A.P. Road Transport Corporation v. Income Tax Officer (1964) 7 SCR 17.
33
CONSTITUTION OF INDIA art. 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.”).
34
Khajoor Singh v. Union of India AIR 1961 SC 532, Pratap Singh Khairon v. State of Punjab AIR
1964 SC 72, State of Bombay v. Laxmidas AIR 1952 Born. 468.
86
and this was held on many occasions by the Court. 35 As was observed in the
Reference case36 by Gajendragadkar S., Article 12 defines the State as including the
legislature of such State and so prima facie the power conferred on the High Court
under Article 226 (1 can in proper case be exercised even against the legislature.37
(b) Judiciary as State
The definition of 'State' under Article 12 does not explicitly mention

judiciary. Since judiciary is the guardian of fundamental rights there may arise the
question whether judiciary can violate the fundamental rights of the individual. In
many of the cases it has been found that even judiciary can violate the fundamental
rights of the people. If the judiciary is included under the State it must conform to
the fundamental rights conferred by Part III of the Constitution. 38 In India it is
undisputed that the judiciary while exercising administrative powers is subjected to
the fundamental rights but the position while adjudicating legal disputes is not
settled till now.39 In Ratilal v. State of Bombay,40 Bombay High Court expressed the
view that the judgment of the Court cannot be challenged for violation of
fundamental rights whereas Madras High Court held that equal protection clause of
Article 14 applies to the judiciary with same force and spirit.
35
AIR 1965 SC 745.
36
Id. (In this case a non-member was detained by an order of the legislature for contempt of the House
and he had moved the High Court for Habeas Corpus. It was held that such a writ against the
legislature is maintainable).
37
CONSTITUTION OF INDIA art. 361 (1) (“The President, or the Governor or Rajpramukh of a State,
shall not be answerable to any court for the exercise and performance of the powers and duties of his
office or for any act done or purporting to be done by him in the exercise and performance of those
powers and duties:
Provided that the conduct of the President may be brought under review by any court, tribunal or body
appointed or designated by either House of Parliament for the investigation of a charge under article
61:
Provided further that nothing in this clause shall be construed as restricting the right of any person to
bring appropriate proceedings against the Government of India or the Government of a State
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the
Governor 1 of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue
from any court during his term of office.”).
38
For example Article 14 of the Constitution which says that “the State shall not deny to any person
equality before the law or the equal protection of laws within the territory of India.” In U.S.it is well
settled that the judiciary is within the prohibition of the 14th Amendment.
39
Prem Chand Garg v. Excise Commissioner, U.P. 1963 Supp. (1) SCR 885.
40
AIR 1954 SC 388 (The question was relating to the rights of Hindu religious denomination to manage
their affairs and their rights to spend property or income for religious purposes).
87
But the view of the Supreme Court on the matter is just the opposite. In
Parbhani Transport Co-operative Society v. Regional Transport Authority 41 a
decision offending Article 14 was defended by the Supreme Court on the ground
that as the authority was acting as a quasi-judicial body, its decision might be right
or wrong, but there should not be any question that whether it is in violation of
Article 14. Subsequently in Ujjambai v. State of UP42 it was unequivocally held by
the Supreme Court that “an error of law or fact committed by a judicial body cannot
in general be impeached otherwise than on appeal unless the erroneous
determination relates to a matter in which the jurisdiction of that body depends".43
The question whether the judiciary is “State” was directly raised before the
Supreme Court in Naresh Sridhar Mirajkar v. Maharashtra.44 In the instant case it
was argued that the order of the trial judge restricting the press to publish the
testimony of the defense witness given in the open court violates fundamental right
to freedom of speech and expression. The High Court dismissed the petition on the
ground that a judicial- order is not amenable to writ jurisdiction. Supreme Court on
appeal admitted the petition under Article 32 for violation of fundamental rights by
the Trial Judge in the judicial order and it brought up the following issues- firstly,
whether a judicial order suppressing evidence of a witness on the grounds that his
business would suffer breaches the fundamental rights in order to entitle the
petitioner to invoke Article 32 and secondly, whether the Supreme Court could issue
a writ to the High Court in the instant case?
The majority held that the suppression of evidence was necessary to serve
the cause of justice. It was also opined that the impugned order would not violate
Article 19 (1)(a) since the power to withhold publication or to hold an in camera
41
(Similarly in Sahibzada Saiyed Muhammed v. State of Madhya Bharath AIR 1960 SC 786, Supreme
Court observed; "Denial of equality before the law or the equal protection of laws can be claimed
against the executive action or legislative process but not against the decision of a competent tribunal.
The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for
redress before a superior tribunal, if there be one.).
42
1963 (1) SCR 778.
43
Ayyangar J. in a powerful dissenting opinion pointed out that by including writs of prohibition and
certiorari in Article 32 the framers had clearly indicated that the fundamental rights in appropriate cases
could be enforced against the judicial or quasi-judicial authorities in as much as these writs lay only
against such authorities.
44
(1966) 3 SCR 744 (In this case a defamation suit was filed against the editor of a weekly newspaper,
one of the prayed that the Court order that publicity should not be given to his evidence in the press as
his business would be affected. After hearing the arguments the trial judge passed an oral order
prohibiting the publishing of the evidence of the witness. The reporter and other journalists of the
weekly filed writ petition under Article 32).
88
trial were both protected by Article 19 (2). Moreover, since the freedom of speech
was affected only incidentally and indirectly, there was no violation of fundamental
rights. Regarding amenability of judiciary to writ jurisdiction the majority held that
the order was to be challenged under Article 136 and not under Article 32, since it
being a judicial order. The Constitution did not contemplate the High Court to be
inferior to the Supreme Court and therefore, their decision would not be liable to be
quashed by a writ of certiorari issued by the Supreme Court.
The dissenting opinion of Hidayatulla J. deserves special attention here. He

negated the findings of the Majority pointing out the fallacy in the procedure
adopted by the judiciary viz; the trial was not conducted in camera by the judge but
the testimony was barred 'perpetually from publication. The Court was not bound to
protect the business interest of witness against the cost of an open and fair end of
justice and Article 19 (1) of the petitioners. He found the case as one involving
judge and the fundamental rights of the petitioner by reason of petitioners’ action.
To him the word ‘state’ includes courts because otherwise courts will be enabled to
make rules which take away or abridge fundamental rights and a judicial decision
based on such a rule would also offend fundamental rights.45 The argument seems to
be appropriate especially if due process has not been complied with. Here in the
instant case the judge's action was not in conformity with the procedure. It was also
mentioned that Article 2046 and 22 (1)47 is addressed to the Court.
A similar question arose in A.R. Antulay v. R.S. Nayak,48 wherein Supreme

Court granted relief for violation of fundamental rights in a proceeding other than a
45
Id. at para. 26 & 28 (According to Seervai the dissenting judgment is correct on all the questions
raised by the petitioners. He is also of the opinion that the judiciary wield the judicial power of the
State, and Article 144 emphasises the fact that judgments will be worth little if the full authority of
state were not exerted to give effect to them. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA
394, 399 (4th ed. 1999).
46
COSTITUTION OF INDIA art. 20 (1) No person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the Act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence. (2) No person shall be prosecuted and punished for the same
offence more than once. (3) No person accused of any offence shall be compelled to be a witness
against himself.”).
47
CONSTITUTION OF INDIA art. 22 (1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his choice.
48
1988 (2) SCC 602 (The case went to the Supreme Court by way of Special Leave Petition but no
appeal would lay against it under Article 136 and also it was not a review petition nor did the Supreme
Court treat it as such. Some majority judges specifically denied that they were exercising jurisdiction
under Article 32).
89
writ petition. It was held that the order of the Constitution Bench transferring case
pending from Special Court to High Court, wherein the case could only be tried in
special court was violation of the fundamental rights of Antulay under Article 14
and 21 of the Constitution. It was held that the order of the Court be it
administrative or judicial, against the provisions of the Constitution or violates the
principles of natural justice, can always be remedied by the Court ex debito
justiitae.49 This decision has given a ray of hope as it allowed reopening of the cases
wherein final decision was already made. It was also made clear that the remedy
against a wrong determination in the exercise of judicial adjudication functions by
the Court is not to allege that the determination of the Court is not consistent with
fundamental rights.
In Triveni Ben v. State of Gujarat,50 the Supreme Court held that judgment of
a Court can never be challenged under Article 14 or 21 and therefore the judgment
of the Court awarding the sentence of death is not open to challenge as violation of
Article 14 and 21. But in the subsequent decisions involving patent violation of
fundamental rights involving judiciary the Supreme Court has attempted sporadic
interventions. Thus in Rupa Hurra v. Ashok Hurra 51 the Constitution Bench has
held that if the justice of a case so demands the Court can exercise curative
jurisdiction even after the review application has been rejected and this has marked
the beginning of a new era of 'curative petitions'.52
There is no justifiable reason why the judiciary should not be included in the
inclusive definition of the ‘State’ under Article 12. However unfortunately it has
been held by the Court in a number of decisions that the judiciary is not involved in
the definition of State. Judiciary must be held as a State. The courts are-setup by
statutes and they exercise powers conferred by law. Besides if the Court found that a
fundamental right has been trampled upon, it is not only its duty to act to correct it
49
Of or by reason of an obligation of justice, as a matter of right etc.
50
(1989) 1 SCC 678 (The contention of the accused was that pursuant to being convicted under Section
302 of 1PC, there was a long delay in executing punishment of sentence to death and that
dehumanizing aspect is violates Article 21).
51
(2002) 4 SCC 388 (Prior to this case in Harbans Singh v. State of U.P. (1982) 2 SCC 103 and in
Attorney General v. Lachma Devi AIR 1986 SC 467 the Court has reconsidered the judgment and the
remedy was granted under Article 32. But nowhere was it mentioned whether the judiciary has to be
brought under Article 12).
52
In Azadi Bachao Andolan v. Union of India (2004) 10 SCC 1 (In this case a curative petition was
allowed to reconsider the validity of a circular regarding the Indo-Mauritius Tax Treaty).
90
but also its obligation to do so.”53 If the judiciary is excluded from the definition of
State, no writ can be issued by the Supreme Court against any judicial institution
and Part III of the Constitution would become futile.
In Surya Dev Rai v. Ram Chander Rai & ors., 54 by upholding Mirajkar
dictum Supreme Court has ruled that judicial orders of Civil Courts are not
amenable to writ jurisdiction under Article 226. The Court also differentiated its
jurisdiction under Article 227 from 226. A notable development in this line
happened with the decision of the Supreme Court in Common Cause v. Union of
India55 wherein Supreme Court made a remark in the following lines that “Part IV
of the Constitution is as much a guiding light for the judicial organ of the state as
the Executive and legislature all three being integral parts of one State within
Article 12 of the Constitution.” Though this observation can only be treated as
‘obiter’ this is a novel approach in looking at the judiciary as State under Article 12.
Recommendation of National Commission on the Review to Review the

Working of the Indian Constitution (NCRWC)
NCWRC 56 has pondered over the question whether judiciary should be

included in the definition of ‘State.’ Commission expressed its desirability over
including State in Article 12. This recommendation was made on a comparative
constitutional plane by taking instances from UK Human Rights Act, 1998 and Bill
of Rights of South African Constitution. In UK ‘public authority’ under UK Human
Rights Act, 1998 is defined to include Court or Tribunal and it is unlawful for a
Court or Tribunal to act in a way incompatible with convention right as per the
53
V.G. RAMACHANDRAN, LAW OF WRITS 55 (1993) also in Unnikrishrnan it was held by Jeevan
Reddy J. that “under Article 37 of the Constitution it was the duty of the State to take into account the
directives in making laws and observed that since the judiciary was part of the State, it was its duty to
interpret the scope of fundamental rights in the light of the relevant directives.”
54
(2003) 6 SCC 675 (The respondent had contended that there was no reason to exclude the civil courts
from the the expression “any person or authority” in Article 226 of the Constitution because
conceptually writ of certiorari can be issued by a superior Court to an inferior Court).
55
2015 (7) SCC 1 (In this case a PIL was filed seeking an appropriate writ to restrain the Union of
India and State Government from using public funds in government advertisement which were
primarily intended to project individual functionaries of the Government or a political party. It was also
prayed in the petition that the Supreme Court may lay down appropriate guidelines to regulate
government action in the matter to prevent misuse/wastage of public funds in connection with such
advertisements).
56
(NCWRC constituted in the year 2001 presented a Consultation Paper the Enlargement of
Fundamental Rights with the aim of strengthening it) National Commission on the Review to Review
the Working of the Indian Constitution, Ministry of Law, Justice and Company Affairs Department of
Legal Affairs available at http://lawmin.nic.in/ncrwc/finalreport/volume2book1.htm (last visited on
Oct. 12, 2015).
91
Act. 57 The Bill of Rights in South African Constitution is also applicable to the
judiciary as per the Constitution of the Republic of South Africa, 1996.58
Another strand of thought expressed by the judiciary is that inclusion of

judiciary in ‘State’ should be confined to Article 21 of the Constitution. Thus as per
the Commission a judicial order which is without jurisdiction and null and void is to
be treated as violation of Article 12.
3.5 Authorities under the Control of Government of India
(a) Local Authorities- The expression ‘local authorities’ has not been defined in the
Constitution but is defined in the General Clauses Act, 1897 so as to include
municipal committee, district board, body of port commissioners or other
authorities. These bodies must be legally entitled to or entrusted by the Government
with the control or management of municipal fund. Thus autonomy regarding the
affairs financial as well as administrative is necessary to fall under the term ‘local
authority’ under Article 12.59
Further, Article 367 of the Constitution60 lays down that unless the context
otherwise requires, the General Clauses Act, 1897, shall subject to any adaptations
57
U. K. Human Rights Act, 1998 § 6 (“Acts of Public Authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention
right.
(2) Sub-Section (1) does not apply to an act if - (a) as the result of one or more provisions of
primary legislation, the authority could not have acted differently; or (b) in the case of one or
more provisions of, or made under primary legislation which cannot be read or given effect in
a way which is compatible with the convention rights, the authority was acting so as to give
effect to or enforce those provisions.
(3) In this section ‘public authority’ includes - (a) a court or tribunal, and (b) any person certain of
whose functions are functions of a public nature. But does not include either House of
Parliament or a person exercising functions in connection with proceedings in Parliament.
(4) In sub-section (3) ‘Parliament’ does not include the House of Lords in its judicial capacity.
(5) In relation to a particular act, a person is not a public authority by virtue only of sub-section
(3) (b) if the nature of the act is private.
(6) ‘An act’ includes a failure to act but does not include a failure to - (a) introduce in, or lay
before, Parliament a proposal for legislation; or (b) make any primary legislation or
remedial.”).
58
THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 1996 art.8 (1) (“The Bill of
Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of
State.”).
59
GENERAL CLAUSES ACT § 3 (LXI); CONSTITUTION OF INDIA Sch. VII, List II, Entry 5
(“Local government, that is to .say, the constitution and powers of municipal corporations,
improvement trusts, districts boards, mining settlement authorities and other local authorities for the
purpose of local self-government or village administration.”).
60
CONSTITUTION OF INDIA art. 367 (1) (`Unless the context otherwise requires, the General
Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under
92
and modifications apply for the interpretation of the Constitution also. Thus the
definition can be well applied for the purpose of interpretation of Article 12.
According to the Court the criteria which must be present in order to hold an
authority as a local authority apart from the above are that it must have a separate
legal existence as a corporate body having an independent legal entity. It must have
function in a defined area and must ordinarily, wholly or partly, directly or
indirectly, be elected by the inhabitants of the area. It must enjoy a certain degree of
autonomy, with freedom to decide for it questions of policy affecting the area
administered by it. It must be entrusted by the statute with the performance of civic
duties and functions. Finally it must have power to raise funds for the furtherance of
its activities and fulfillment of its projects by levying taxes, rates, charges or fees in
addition to the monies provided by Government or obtained by borrowing or
otherwise.61
Applying this test it was held that Local authorities like Municipalities, 62
District Boards, 63 Panchayats, 64 Improvement Trusts, Port Trusts, 65 and Mining
Settlement Trusts etc. are local authorities and was also held by the court through
various judicial decisions.
The question whether housing boards can be considered as 'local authority'

came before the Supreme Court in many cases. The decision reveals the difficulty in
holding an authority as State even if it performs an important public function. In
Housing Board of Haryana v. Haryana Housing Board Employees Union 66 the
Supreme Court held that the Housing Board is not a ‘local authority’ and denied to
make applicable Payment of Bonus Act to employees of Haryana Housing Board.
Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act
of the Legislature of the Dominion of India.”).
61
Union of India v. R.C. Jain 1979 SCR (3) 1014 (In this case the question was whether the Delhi
Development Authority created under Delhi Development Act, 1957 was a local authority within the
meaning of Sec. 32 (iv) of the Payment of Bonus Act, 1965).
62
1n Rashid Ahmed v. M. B. Kairana AIR 1950 SC 163 (It was held that the right to occupation, trade
and business guaranteed under Article 19 (1) (g) was available against municipal board). Followed in
State of Gujarat v. Shantilal Mangaldas (1969) 1 SCC 509: Also Municipal Corporation of Delhi v.
Birla Cotton Mills AIR 1968 SC 1232: Ashok Kumar v. Ajay Biswas (1985) 1 SCC 151.
63
Hari Nath v. State of Bihar AIR 1967 Pat.305 (It was held that the fundamental rights guaranteed
under Articles 14 and 16 were available against the District Board, Patna).
64
Ajit Singh v. State of Punjab AIR 1967 SC 355; Bhagat Ram v. State of Punjab AIR 1967 SC 927;
Kishan Singh v. State of Punjab AIR 1961 Punj. 1.
65
S. Sarangapani v. Madras Port Trust AIR 1961 Mad. 234; Dwarkadas Marfatia & Sons v. Bombay
Port Trust 1990 (1) Bom. C.R. 405.
66
1996 (1) SCC 95.
93
The reason was that it does not enjoy a ‘local fund’ and the members are not elected
like in other local authorities like panchayats, municipalities and also on the ground
that it is not an autonomous body as there is government control in the functions
performed by it.67 The legislature had given it the status of ‘local authority’ for the
purpose of Land Acquisitions Act. But Court held that the status is given only for a
limited purpose. 68 Simultaneously, the Supreme Court also denied making it as
‘other authority’ under Article 12.
Further, in M/S Andhra Pradesh Housing Board v. Department of IT69 the

question was whether Andhra Pradesh Housing Board is a government agency or
not. Unlike the former case, in the instant case the independent character of the
Housing Board was upheld. If in the first case the Housing Board was declared not
an 'other authority' for the government control, in the instant case it was declared as
not as an ‘other authority’ because it is functioning as an autonomous body. But in
both cases the fact that the Housing Boards are performing an important government
function and the element of public purpose in the respective activity was ignored by
the Court. Thus it can be found that rather than nature of the activity importance is
given by the Court to the tests or criteria’s in determining whether a body fall under
the term `State' or not.70
(b) Other Authorities
Article 12 ends up enumerating the authorities under Article 12 by referring

finally ‘other authorities’ within the territory of India and under the control of
67
Id. (The Supreme Court observed that the functions as are indicated in the housing scheme are
essentially performed by Municipal Boards and Council which are ‘local authorities’ but on that
analogy the Haryana Housing Board cannot be treated to be a local authority as the extent of the
control of the State Government under which the Board had to function is prominently pervasive that it
is almost destructive to its independence which will also be apparent from the facts that in matters of
settlement of its annual programmes, budget and establishment schedule, the Board has to obtain the
sanction of the State Government. The Housing Board does not have the semblance of independence
which are normally possessed by local self-government. The Board does not even partially consist of
elected representative of the people).
68
Id. (Court observed that the legislature could well have given this status to the Board for the purpose
of Payment of Bonus Act but this has not been done and so it cannot be treated as a ’local authority’
under the Payment of Bonus Act, 1965).
69
Available at http://indiankanoon.org/doc/42396226/ accessed on 28, February 2014.
70
It is also to be noted that Budha Veerinaidu v. State of Andhra Pradesh and anr.1983 (143) ITR
1021 Agricultural Market Committee functioning under Andhra Pradesh Agricultural Produce and
Live Stock Markets Act, 1966 was held to be a ‘Local Authority’ As it was found that the Market
Committee was entrusted by the Government with the control and management of “Local Fund”
whereas Housing Board which also performs an equally or more important function was held to be not
performing a governmental activity.
94
government of India. The term ‘authority’ is defined as the person or persons in
whom government or command is vested. 71 It is also defined as a public
administrative agency or corporation having quasi-governmental powers and
authorized to administer a revenue-producing public enterprise. 72 This dictionary
meaning of the word is clearly wide enough to include all bodies created by a statute
on which powers are confined to carry out governmental or quasi-governmental
functions and it was quoted with approval by the Constitutional Bench in Rajasthan
State Electricity Board73 and later this was reiterated by the Apex Court in Pradeep
Kumar Biswas.74
3.6 Interpretation of ‘Within the Territory of India or Under the Control

Government of India’
In the draft Constitution these words ‘under the control of Government of

India’ were not there and it was subsequently made part of Article 12 by Dr. B.R.
Ambedkar to expressly guarantee fundamental rights to those who are staying in the
territories not under the control of Government of India for e.g. Trust territories. It
was added despite the oppositions grounded on the inconclusive nature of Article 12
and especially of the words ‘other authorities’, which extended the definition
beyond the category of authorities usually known to possess governmental power.
But Dr. B.R. Ambedkar said that “anybody who cared for the fundamental rights
could not object to the definition.”75
Regarding the interpretation of the term ‘within the territory of India’ and
‘under the control of Government of India’ it can be seen that they are
interconnected by the word ‘or’ which implies that they are disjunctive. The term
‘under the control of Government India’ is meant to bring into the definition of
State, not only every authority within the territory of India but also those
functioning outside, provided they are under the control of the Government of
71
Rajasthan Electricity Board v. Mohanlal 1967 SCR (3) 377 (The services of the permanent
employees were placed at the disposal of the appellant, Electricity Board. While framing its own grades
and conditions for promotions the Board discriminated the employees and this matter went in appeal
before the Supreme Court from Madras High Court).
72
Id.
73
Id. at 378 (The Apex Court overruled Shanta Bai and declared incorrect its basic thesis on the ground
that for the interpretation of ‘other authority’ in Article12 ejusdem generis rule would be applicable
because there was no common genus present in the authorities specifically enumerated in the Article).
74
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111.
75
VI CONSTITUTION ASSEMBLY DEBATES 608-09 (1948-49).
95
India. 76 In N. Masthan Sahib v. Chief Commissioner, Pondicherry 77 and in K.S.
Ramamurthi Reddiar v. Chief Commissioner, Pondicherry 78 it was said that the
words ‘under the control of the government of India’ qualified the words ‘other
authorities’ and not the territory.
Thus, the term ‘within the territory of India’ may also imply that there are a
set of bodies that comes under Article 12 which are not under the control of
Government of India. Those bodies may be under the control of the State
Government. But to interpret the term in that way will cut down its scope of Article
12, also it may not be intended by the framers since that fact is expressly mentioned
in the Article. To interpret the term in a very creative manner it is possible to say
that ‘within the territory of India’ might be narrower than ‘under the control of the
Government of India’ if it refers only to those bodies expressly set up under the
statute and also this interpretation would make the former part superfluous. Thus
within the territory must be read as covering a set of circumstances parallel to that
of bodies ‘under the control of government’ i.e. private bodies not under the control
of government, but performing governmental functions. This interpretation would
be apt considering the philosophy and historical background in which our
Constitution was made.
3.7 Judicial Interpretation of ‘Other authorities’
The most important question regarding the interpretation of Article 12 is the

construal of the term ‘other authorities’ so that one can know as to what are the
entities against which the fundamental rights can be claimed. The answer to this
crucial question can be both broad and narrow, and whether one accepts either view
largely depends on one’s notion about the reach of the fundamental rights.79
(a) Ejusdem Generis Rule
Ejusdem generis rule is the first test devised by the Court to construe the
meaning of ‘other authorities’ under Article 12. The expression ‘other authorities’ is
used after mentioning government of India, State Government, Union legislature
76
V.N. SHUKLA, THE CONSTITUTION OF INDIA 27 (2003).
77
(1962) Supp (1) SCR 981.
78
(1964) 1 SCR 656.
79
Hina Doon, The Doctrine of State Action —The Politics of Law Making, NALSAR S.L.R. 1-21
(2009).
96
and State legislature and local authorities, it is thus reasonable to construe this
expression in relation only to government or legislature.80 If we apply this meaning
it could only mean authorities exercising governmental or sovereign functions. 81
Thus to invoke the application of ejusdem generis rule, there must be a distinct
genus or category running through the bodies already named.
This test was applied by Madras High Court in University of Madras v.

Shantha Bai82 wherein Madras High Court interpreted the term ‘other authority’ by
applying the test of ejusdem generis and by applying this test it was held that only
such authorities could be included within the term 'other authorities' as possessed
governmental power. The Court also drew distinction between government aided
and maintained institutions and held that University of Madras is an autonomous
institution receiving aid not only from the government but also from private sources
like collection of fees from the students and in such a case it cannot be held as a
‘State’ under Article 12. 83 This was a narrow interpretation of the term ‘other
authorities.’
The above decision was open to many criticisms firstly, if the word
‘authority’ comprises only authorities exercising governmental functions, the
expression local authorities would have been sufficient for the purpose secondly,
University is also vested with the power to make subordinate legislations in the
form of rules and regulations but this fact was not mentioned from which it is
evident that the Court had considered it as a law making power without bearing any
sovereign or peremptory authority. Thirdly, the distinction between state aided
institutions and state maintained institution as is applied in Article 28(1)(3)84 and
80
AIR 1954 Mad. 67 (The question for consideration was whether the rule of the University restricting
admission on the basis of sex is valid or not).
81
Id. B.W. Devdas v. Selection Committee AIR 1964 Mys.6; Krishne Gopal v. Punjab University AIR
Punj. 34.
82
In simple terms it means that where certain entities which are specifically enumerated have a
common characteristic and this enumeration is followed by some general phrase leaving room to
include some more, the additional cases to be covered in this residuary category should also possess the
common characteristic of possessing power of a governmental nature.
83
Supra note 80 at para. 7.
84
CONSTITUTION OF INDIA art. 28 (1) (“No religious instruction shall be provided in any
educational institution wholly maintained out of State funds. (3) No person attending any educational
institution recognised by the State or receiving aid out of State funds shall be required to take part in
any instruction that may be imparted in such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto unless such person or, if such person
is a minor, his guardian has given his consent thereto.”).
97
29(2) 85 cannot be imported to interpret the general provisions of Article 12 and
15(1) because the purpose of both articles are totally different. The criteria for
determining whether an authority falls under Article 12 cannot be made on the
ground of such a narrow distinction as the question relates to the enforceability of
fundamental rights. This was a very narrow interpretation of other authorities since
it restricts the application of Article 12 to bodies exercising sovereign power.
(b) Sovereign Power Test
The criteria to find out authority as ‘other authority’ under Article 12 was
further evolved in the case of Rajasthan Electricity Board v Mohanla186 wherein the
Apex Court overruled Shanta Bai and declared incorrect its basic thesis that for the
interpretation of 'other authority' in Article12 ejusdem generis rule would be
inapplicable because there was no common genus present in the authorities specially
enumerated in the Article. 87 In the instant case Rajasthan Electricity Board was
unanimously held to be a ‘State.’ But the uncertainty over the criteria to be adopted
in holding an authority as State is also reflected in the opinion of the judges.
According to the Court only such statutory or constitutional authorities are

‘state’ which possesses power to make law and to administer such law or have the
power to make binding directions, the disobedience of which is punishable as
offence. It is pertinent to note that according to this holding it is immaterial if such
bodies are performing commercial functions because under Article 19(g) and 29888
85
CONSTITUTION OF INDIA art. 29 (2) (“No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on grounds only of religion, race,
caste, language or any of them.”).
86
1967 SCR (3) 3771. The Bench consisted of Subba Rao C.J., Shelat J., Bhargava J., G.K. Mitter J.,
Vishishta J.
87
This view was further reiterated in the case of B. W. Devadas v. The Selection Committee for
Admission of Students to the Karnatak Engineering College A.I.R 1964 Mysore 6 wherein the Court
observed that: “there is an essential difference between a political association of persons called ‘the
State’ giving rise to political power connoted by the well-known expression ‘imperative law’ and a
non-political association of persons created for other purposes by contract, consent or similar type of
mutual understanding related to the common object of persons so associating themselves together
giving rise to a power which operates not in the manner in which imperative law operates, but by virtue
of its acceptance by such associating persons.”
88
CONSTITUTION OF INDIA art.19 (1) (g) (“All citizens shall have the right to practice any
profession, or to carry on any occupation, trade or business.”).
CONSTITUTION OF INDIA art. 298 (“The executive power of the Union and of each State shall
extend to the carrying on of any trade or business and to the acquisition, holding and disposal of
property and the making of contracts for any purpose: Provided that--
(a) the said executive power of the Union shall, in\so far as such trade or business or such purpose is
not one with respect to which Parliament may make laws, be subject in each State to legislation by the
State; and
98
the state is specifically empowered to carry on any business or trade. The
importance was attached to the fact that the Board was established by a statute. This
was the finding made by Bhargava J. 89
Though Shah J. agreed with the above order proposed by Bhargava J. he

disagreed with the latter’s view that every constitutional or statutory authority on
whom powers is conferred by law is ‘other authority’ within the meaning of Article
12. According to him ‘authority’ means a body invested with ‘sovereign power’ to
make rules and regulations and to administer or enforce them to the detriment of the
citizens and such a body will fall within the definition of State in Article 12. He also
pointed out that if fundamental rights are available against the state, the state also
has the power to put restrictions under Article 19(6) and thereby remarked that the
true content of the expression ‘other authority’ in Article 12 must be determined in
the light of this dual phase of fundamental rights. He did not concur to the wide
proposition laid down by Bhargava J. that every statutory body on which powers
was conferred by law as ‘State.’90
Thus we can see two approaches in interpreting Article 12 one is purely

based on the standpoint of creation of a body/authority statutory or constitutional
and the other is from the standpoint of Part III of the Constitution and the limitation
upon fundamental rights of the individual.91 As per Shah J.’s judgment bodies that
can affect those rights in a manner similar to that of the state are assimilated to the
state. Through this decision Court has differentiated the sovereign and non-
sovereign functions of the State. Sovereign power means power to make rules or
regulations and to enforce and administer them to the detriment of the citizen and
others. The approach of Shah J. is a wide approach to fundamental right approach
(b) the said executive power of each State shall, in so far as such trade or business or such purpose is
not one with respect to which the State Legislature may make laws, be subject to legislation by
Parliament.”).
89
Per Bhargawa J. The Rajasthan State Electricity Board was a corporate body that had been constituted
under Electricity Supplies Act, 1948 for the purpose of supplying electricity to the State of Rajasthan.
90
Thus as to the meaning of ‘other authorities’ there was a difference of opinion between he
majority judgment delivered by Bhargawa J. and the concurring judgment of Shah J. This difference
does not call for discussion in subsequent developments of the law. H.M. SEERVAI, supra note 45,
at 372.
91
Id. (“In my judgment, 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. Those
authorities which are invested with sovereign power i.e., power to make rules or regulations and to
administer or enforce them to the detriment of citizens and others fall within the definition of “State”
in Art. 12, and constitutional or statutory bodies which do not share that sovereign power of the State
are not, in my judgment, “State” within the meaning of Art.12 of the Constitution.”).
99
since it posits the individual and individual’s right at the centre. It is also in
consonance with the limitations set by the constitution on fundamental rights. As
per this approach if the private bodies like cooperative society’s which has the
power to make bye-laws, rules etc. will fall under Article 12 if they encroaches
fundamental rights of the individual.
(c) Agency or Instrumentality of State Test

The terms instrumentality or agency are not to be found place in Article 12.
It is through the process of judicial that they have been included as falling within the
net of Article 12 subject to satisfying certain tests. If we look into the definitions of
instrumentality, Black’s Law Dictionary defines instrumentality as “a means or
agency through which a function of another entity is accomplished, such as a branch
of governing body.” Whereas agency is defined as “fiduciary relationship created by
express or implied contract or by law, in which one party (the agent may act on
behalf of another party (the principal and bind the other party by words or actions.”
Having referred the dictionary meaning it is important to analyze the judicial view
in the interpretation of ‘other authorities.’ Following is explained landmark
decisions on the point in chronological order through which Court has developed the
concept of instrumentality or agency test which stands as ever shining criteria to
determine ‘other authorities’ as State under Article 12 of the Indian Constitution.
The test of instrumentality or agency was put forward by Mathew J. in

Sukhdev Singh v. Bhagatram. 92 The majority decision in Rajasthan Electricity
Board was clearly the controlling precedent in this decision but the judges differed
in its correct interpretation. Therefore the Corporations were State because they
were statutory in origin and had been conferred with power to make regulations
which had the status of law and law making is a sovereign power of the state. It is
pertinent to note that only ONGC had the power to issue binding directions which
could be made punishable as an offence, IFC and LIC does not possess such power.
So Mathew J. relied on some other justification for calling corporations state relying
on the functional aspect.
92
AIR 1975 SC 1331(The question that arose for consideration in this case was whether statutory
corporations such as the Oil and Natural Gas Corporation, Life Insurance Corporation and the Finance
Corporation would fall within the definition of State under Article 12).
100
As per Mathew J. the State unlike in the past is a ‘service corporation’
obliged to undertake welfare obligations under Part IV. When corporations act as
arms of the State to exercise those functions they must be regulated by
Constitutional limitations. To substantiate this view doctrine of State Action as
applied in US was relied upon. Relying upon the US position and the decision in
Marsh v. Alabama93 Court said that it is not necessary that the entity or organization
must wield authority in the sense that it must have power to issue commands in the
Austinian sense, or that it must have sovereign power to pass laws or regulations
having the force of law.
It was observed that the power of the large corporations does not come from
the statutes but rather they acquire power because produce goods and services upon
which the public comes to rely. They play a vital role in the lives of many people
and are a supply line of the country. Because of these reasons it was held that
corporations are no longer a private phenomenon and so governing power which lies
with the corporation must be subjected to the same constitutional limitations as that
of other public bodies like in the US.
What is an Agency or Instrumentality of State?
In this case a more conceptual understanding of Article 12 was given by

Mathew J. in his concurring opinion in Sukhdev Singh. He found Article 13 (2) as a
limitation upon Article 12. Borrowing the dictum in Civil Rights case94 he said that
it is the state action of a particular character that is prohibited individual invasion of
individual rights is not covered under Article 13 (2).95 Taking hues from the US
position of state action he devised some formulas to find out state action in an
alleged activity. Does any amount of self-help however inconsequential make an act
something more than an individual act like a direct financial aid from the state
received by a privately managed and owned body. But financial aid alone does not
render the institution a state agency a finding of it plus an unusual degree of control
over the management and policies will render the operation a state action. 96
93
326 U.S. 501 (1946).
94
109 U.S. 3 (1883).
95
Id at para. 95.
96
Id at para. 97.
101
Public functions test was rendered as a major test. If the given function is of
such public importance and so closely related to government functions as to be
classified as a government agency then even the presence or absence of state
financial aid might be irrelevant in making a finding of state action.97 Court also
elaborated the various ways of state aid in a private operation than by direct
financial assistance. It can be through giving the organization the power of eminent
domain, grant of tax exemption, grant of monopolistic status. All these are relevant
in making an assessment whether the operation is private or savors of state action.98
Mathew J. was explicit about the Public Functions test as a test to find out
whether a body/authority is an instrumentality or agency of the state. For explaining
the test he took cases from USA wherein State Action doctrine was applied by the
Court against purely private actors unlike public corporation which was called in
question in the instant case. 99 Though his decision reflected the view that even
private corporations need to be considered as a State at the concluding part he
washed off his hand in the matter by making it clear that he does not have any
opinion on the question whether private corporations or other like organizations
though they exercise power over their employees which might violate their
fundamental rights. 100
Uncertainty also lies in the fact when he stated the two preconditions for a
subjecting Corporation to the Constitutional limitations. The public corporation
should be created by State and the existence of power in the corporation to invade
the Constitutional right of the individual. The major premise of this conclusion was
that the Constitution should wherever possible be so construed as to apply to
arbitrary application of power against individuals by centres of power.101 Though in
Sukhdev Singh’s the Court attempted to extend the meaning of State but could not
come to a logical conclusion as to how and when an authority can be called as other
authority under Article 12.102
97
Id at para 98.
98
Id. at para 99 (Court referred Kerr v. Enoch Pratt Free library 149 F.2d 212 (4th Cir). wherein
discriminatory practices in a private library was abolished by the Court since it enjoyed government
support in supply of budget, property holding etc. and distinguished it from Dorsey v. Stuyvesant
Corporation 299 N.Y. 512 wherein the Court had found only state financial aid in the private library
and government control was found to be absent).
99
McCullough v. Maryland 4 Wheat. 315 (US 1819); Marsh v. Alabama 326 U.S. 501 (1946); Kerr v.
Enoch Pratt Free library 149 F.2d 212 (4th Cir); Dorsey v. Stuyvesant Corporation 299 N.Y. 512.
100
Id. at para 113.
101
Id. at para 90.
102
As pointed out by Seervai “but the discussion of cases cannot be set out profitably, because having
considered each decision he (Mathew J.) has not deduced any principle or principles from those
decisions. But subsequently Seervai opines that the line of reasoning developed by Mathew J. can also
102
Sabhajit Tewary v. Union of India103 also left doubt as to whether Mathew J.
intended to apply his test to registered societies. The case was decided on the same
day he decided Sukhdev Singh. The question was whether Centre for Scientific and
Industrial Research (CSIR) is a State or not. Although government recognized that
government takes special care in the promotion, guidance and co-operation of
scientific and industrial researches, establishment or development and assistance to
special institution or departments of the existing institutions for scientific study etc.,
the Court did not find any State Action in its activities mainly on two premises – (a)
the society does not have a statutory character like ONGC, LIC, IFC since it is a
society (b) the previous judgments of the Court denied protection under Article
104
311 to Corporations which has an independent existence under the
Government.105
be supported on the ground that it prevents a large scale evasion of fundamental rights by transferring
the work in government departments to statutory corporations, while retaining control over the
corporation. H.M. SEERVAI, supra note 45, at 373 & 375.
103
1975 (3) SCR 616 (In this case a junior stenographer with CSIR filed a writ petition under Article
32 claiming parity of remuneration with newly recruited employees of QM based on Article 14. The
contention of the employee was that CSIR is an agency of the Central Government on the basis of the
CSIR Rules).
104
CONSTITUTION OF INDIA art. 311 (“Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State;
(1) No person who is a member of a civil service of the Union or an all India service or a civil
service of a State or holds a civil post under the Union or a State shall be dismissed or removed by
a authority subordinate to that by which he was appointed
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an
inquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall not be necessary to give such person any
opportunity of making representation on the penalty proposed: Provided further that this clause
shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has
led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins
satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably
practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in rank shall be final.”).
105
Praga Tools Corporation v. Shri C.A. Immanuel & Ors.1969 (3) SCR 773; Heavy Engineering
Mazdoor Union v. State of Bihar &ors.1969 (3) SCR 995; S.L. Aggarwal v. General Manager,
Hindusthan Steel Ltd. 1970 (3) SCR 363.
103
(d) Government Control Test
The subsequent case in determining the criteria for ‘other authority’ was
R.D. Shetty v. International Airport Authority.106 The matter whether International
Airport Authority was a State could have been decided by following the majority
decision in Sukhdev Singh. But Bhagwati J. who delivered the judgment of the Court
used the agency test as an alternative ground for the decision and pointed out that
the corporations acting as instrumentality or agency of government would obviously
be subject to the same limitations in the field of administrative and constitutional
law as the government itself. It was also observed that there cannot be any ‘cut and
dried formula’ for determining agency and instrumentality of state.
The American doctrine of State Action where “extensive and unusual

financial assistance” from the government is a relevant consideration was applied in
the instant case, to a situation where there is unusual degree of state control over the
policies and management of the corporation.107 It is to be noted that in this case the
statutory character of the authority was not much noticed. As per the Court what is
material is “whether the Corporation is an instrumentality of the Government in the
sense that a part of the State is located in the Corporation and though the
Corporation is acting on its own behalf and not on behalf of the Government its
action is really in the nature of State Action.” While Mathew J. was unclear about
the form in which corporate agency brought in to existence which will make it
amenable to agency or instrumentality test, on the other hand Bhagwati J. was
explicit in his opinion when he said “it is not the outer form that mattered, but its
substance” Finally the following questions were held as important to determine
whether a corporation is an instrumentality or agency of the government.
a. Does the state give financial assistance to the corporation, if yes, to what
extent?
b. Is there any control of the management and policies of the corporation by the
state if yes, the extent of such control?
106
1979 SCR (3) 1014 (International Airport authority invited tenders from registered second class
hoteliers having five years of experience for running two second class restaurants and two snack bars.
Out of the six tenders one tender from a person not fulfilling the required criteria was accepted and
other tenders were rejected without mentioning any reason. This was challenged by one of the renderer
whose was the highest tender amount).
107
Id. at para. 15.
104
c. Does the corporation enjoy any monopoly status which is state protected or
state conferred?
Establishment of cumulative effect of all the factors is necessary. The

presence of only a single factor will not field a satisfactory answer.108 The Court has
also given importance to public functions test and illustrated a test as well in order
to ease out the difficulty in determining what functions are governmental and what
are not. As per the Court “the modern government operates a multitude of public
enterprises and discharges a host of other public functions. If the functions of the
corporation are of public importance and closely related to governmental functions,
it would be a relevant factor in classifying corporation as an instrumentality or
agency of government.”
To substantiate his view on public functions test Court relied on the

American case of Marsh v. Alabama 109 wherein it was held that a town may be
privately owned and managed but that does not necessarily allow the corporation to
treat it as if it was wholly in the private sector. The Court added by quoting from
Marsh that “the more an owner opens up his property for his advantage for use by
the public in general, the more does his right become circumscribed by the statutory
and constitutional rights of those who use it.” Another finding by the Court was that
the function exercised by the corporation was in the nature of municipal function
and it was therefore, subject to the constitutional limitations placed upon State
action. Thus in the instant case public functions test was treated in a separate
pedestal. In conceptualizing the test the Court has done nothing better than
importing the view of Mathew J. in Sukhdev.
(e) Government Instrumentality Test

In R.D. Shetty Bhagwati J. reiterated with approval Mathew J’s approach in
Sukhdev Singh’s Case110 wherein it was held that an entity would be treated as an
108
Id. at 1017.
109
326 U.S. 501 (1946) (In the instant case a Jehova witness was arrested for trespassing after
attempting to distribute religious texts in privately owned company town in Alabama. Court held that
company town served a public function and therefore its decisions were subjected to constitutional
scrutiny under the First and Fourteenth Amendments).
110
BHAGWATI J. pointed out that the corporation acting as instrumentality or agency of government
would obviously be subject to the same limitations in the same field of constitutional or administrative
law as the government itself though in the eye of law they would be distinct and separate legal entities.
But however the relief was refused to the appellant because of the conduct including delay and also
because of the 4th respondent had already incurred expenditure to put up the restaurant.
105
instrumentality of the State, “where a Corporation is wholly controlled by
Government not only in its policy making but also in carrying out the functions
entrusted to it by the law establishing it or by the Charter of its incorporation.”
Further, the Court held that a corporation created by statute which is otherwise
autonomous in its functioning will answer to the test laid down in Article 12 when
“extensive and unusual financial assistance is given and the purpose of the
Government in giving such assistance coincides with the purpose for which the
corporation is expected to use the assistance and such purpose is of public
character.” The Court also noted that the existence of monopoly, which is either
State conferred or State recognized, may also lead to an inference of “State Action.”
Importantly, the Court hinted at the importance of the functional test and observed
that, “the public nature of the function, if impregnated with governmental character
or ‘tied or entwined with Government’ or fortified by some other additional factor,
may render the corporation an instrumentality or agency of Government.”
The scope of Article 12 was further widened in Som Prakash Rekhi v. Union
of India, 111 wherein the Court observed that, “if only fundamental rights were
forbidden access to corporations, companies, bureaus, institutes, councils and
kindred bodies which act as agencies of the administration there may be a
breakdown of the rule of law and the constitutional order in a large sector of
governmental activity carried on under the guise of jural persons,” and held that a
public corporation (Bharat Petroleum Corporation) would fall under the definition
of Article 12.
The subsequent case Som Prakash Rekhi v. Union of India112 was set in the
background of Nationalisation of Burmah Shell ltd. by Bharat Petroleum. By
applying the criteria in International Airport Authority the Supreme Court held that
Bharat Petroleum Corporation registered as a Company under the Companies Act, is
111
AIR 1981 SC 212 Subsequently in Star Enterprises v. C.T.D.C. of Maharashtra Ltd. AIR I981 SC
212 wherein government company under Section 617 of the Companies Act was held to be a ‘State.’
112
(1981) 1 SCC 449 (Per V.R. Krishna Iyer, Bench O. Chinnappa Reddy, R.S. Pathak, V.R. Krishna
Iyer. (In this case the petitioner who was an employee of India-Burmah Shell Oil Storage ltd. was
entitled to pension from the respective company and a dispute regarding the same was pending before
the Court. In the meantime by India-Burmah Shell (Acquisition of Undertaking in India) Act, 1976 the
company came to be vested with Bharat Petroleum ltd. He filed a writ petition against BPL.
Preliminary objection was raised on the ground that the corporation is neither a government department
nor a statutory corporation but just a company and so writ is not maintainable under Article 12).
106
State within the enlarged meaning of Article 12.113 By noting the relevant provisions
in the Burmah Shell Act, 1976 Court held that the Corporation is clearly a creature
of the statute, a limb of the government, an agency of the State and is recognized
and clothed with rights and duties by the statute. The Court embarked upon the
growing governmental functions and observed that the governments, its agencies
and instrumentalities, corporations set up or owned by the Government should be
bound by the equality clause. The Court also took charge of its responsibility under
Part III and IV and said that if the corporations are liberated from the basic
obligations of Part III there would be a treachery on the founding fathers and a
mockery of the Constitution.114
While determining the criteria to determine instrumentality or agency Court

culled out five criterions from R.D. Shetty and it was laid down on the basis of
financial support in the form of holding of entire share capital by the state, existence
of deep and pervasive state control, performance of functions which are of public
importance or closely related to governmental functions, state conferred or protected
monopoly status and transfer of a department of the Government to the Corporation.
The Court distinguished the instant case from Sabhajit Tewary and supported the
wide meaning adopted in Rajasthan Electricity Board that it is not material if some
functions of the body are commercial functions and that the expression ‘other
authority’ is wide enough to include all constitutional and statutory authorities on
whom powers are conferred by law. The Court altogether rejected the criteria based
on statutory character of the body.
In the end Court further expressed its opinion that ‘other authorities’ under
the control of the Government of India’ is plain and there is no reason to make
exclusions on sophisticated grounds such as that the legal person must be a statutory
corporation, must have power to make laws, must be created by and not under a
statute and so on.115
113
Id. (“According to the Court ‘Other authorities’ under the Control of the Government of India” are
comprehensive enough to take care of Part III without unduly stretching the meaning of ‘the State’ to
rope in whatever any autonomous body which has some nexus with Government. A wide expansion
coupled with a wise limitation may and must readily and rightly be read into the last words of Article
12.”).
114
Id.
115
Id. (“To substantiate this he quoted Salmond who said that the jurisprudence of Third World
countries cannot afford the luxury of besetting the sin of the legal mind. To him “Partly through the
107
The subsequent decision was Ajay Hasia v. Khalid Mujib. 116 Since the
question involved was whether a college registered under the Society's' Registration
Act is an 'other authority' or not, the ratio in Sukhdev and International Airport
Authority would have been became the obiter but Bhagwati J. by applying
Instrumentality test held that college was a ‘State.’ From the beginning the Court
relied on Governmental control as the determining test for Article 12. Taking hues
from Som Prakash Rekhi Court followed an approach similar to looking from
behind the corporate veil.117 The most important aspect of the judgment lies in the
matter that the court held that it is immaterial whether a particular entity was a
statutory corporation created by law, or a government company incorporated in
accordance with the provisions of Companies Act, 1956 or a mere registered
society. What mattered was the substance, whether the particular entity had enough
nexus with the government to be called it as an agency or instrumentality. 118
Bhagwati J. specified the following six considerations to be taken into account in
order to determine whether an ‘authority’ is an instrumentality or agency of State.
(a) whether the entire share capital of the corporation is owned by the Government
(b) whether the financial assistance given by the State is enough to cover the entire
expenditure of the entity;
(c) whether the Corporation enjoys a monopoly status which is either Government
conferred or Government protected;
(d) whether there is existence of deep and pervasive State control from the part of
the Governmental;
methods of its historical development, and partly through the influence of that love of subtlety which
has always been the besetting of the legal mind our law is filled with needless distinctions, which add
enormously to its bulk and nothing to its value, while they render a greater part of it unintelligible to
any but experts.”).
116
1981 AIR 487. (Per P.N. Bhagwati, Bench P.N. Bhagwati, Y.V. Chandrachud, V.R. Krishna Iyer,
Fazal Ali, A.D. Syed Murtaza Koshal. The case was decided on the same day in which Som Prakash
Rekhi was decided and both the cases reiterated the position of law in Sukhdev and International
Airport Authority).
117
Id.at 7 (“To the Court Article 12 was to cover those corporations where behind the formal ownership
which is cast in the corporate mould, the reality is very much the deep and pervasive presence of the
government. It is really the government which acts through the instrumentality or agency of the
corporation and juristic veil of the corporate personality won for the purpose of convenience of
management and administration cannot be allowed to obliterate the true nature of the reality behind
which is government.”).
118
1981 SCR (2) 79 at para. 82.
108
(e) whether the functions of the entity are of public importance or closely related to
Governmental functions;
(f) whether a Government department is transferred to a corporation.
In the instant case it was said that the Courts should be anxious to enlarge
the scope and width of fundamental rights by bringing within their sweep every
authority which is an instrumentality or agency or through the corporate personality
of which government is acting, so as to subject the government in all its myriad
activities, whether through natural persons or through corporate entities, to the basic
obligation of Fundamental Rights. It was made clear that the genesis of the
corporation is immaterial and that that the concept of instrumentality or agency of
the government is not limited to corporation created by a statute but is equally
applicable to a company or society.
What can be seen regarding public functions test is that the Court has
relegated it as one of the tests unlike in Sukhdev Singh and R.D. Shetty. The Court
has diluted functional aspect of the case and instead gave importance to
governmental control which could be either administrative or financial or both. The
Court after examining the principles to the facts of the case concluded by saying that
“the control of the state and the Central Governments is indeed so deep and
pervasive” that the society was undeniably and instrumentality or agency of the state
under Article12.119 The Court paid no attention to the fact that functions performed
by the society i.e. higher education in its analysis.
Applying the test of ‘government control’ in Ajay Hasia, subsequently in P.

K Ramachandra Iyer v. Union of India,120 and similarly in B.S. Minhas121 Indian
Council of Agricultural Research and Indian Statistical Institute respectively was
held as an “other authority” because the Central Government exercises deep and
pervasive control over them. But in Chander Mohan Khanna v. National Council of
119
Id.
120
(1984) 2 SCC 141, 1984 SCC (L&S) 214 (In this case the question was whether Indian Council of
Agricultural Research (ICAR) registered under Societies Registration Act was a 'State' or not).
121
(1983) 4 SCC 141; 1984 SCC (L&S) 420 (Its composition is dominated by the members appointed
by the Central Government. The money required for its functioning is provided entirely by the Central
Government. The accounts of it have to be approved by the Central Government and the Society has to
comply with the directions issued by the Central Government); Central Inland Water Transport Corpn.
v. Brojo Nath Ganguly (1986). 3 SCC 156 and All India Sainik Schools Employees Association v.
Defence Minister Cum Chairman, Board of Governors, Sainik School Society, (1989) Supp. (1) SCC
205.
109
Educational Research and Training,122 Supreme Court held that NCERT is not an
‘authority’ under Article 12 because the exercise of control by the government was
limited and because the activities of it are not wholly public functions. The final
triumph of governmental control test can be seen in Pradeep Kumar Biswas with the
majority decision by Ruma Pal J.123
(f) Deep and Pervasive Control Test

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology 124 the
Hon'ble Supreme Court overruled the decision of the Court in Sabhajit Tewary.125
The Court distinguished the narrow test as applied in Shanta Bai and broader
approach to the interpretation to Article 12 i.e. the interpretation of Article 12 from
Rajasthan Electricity Board and onwards. The Court referred the ‘voice and hands’
approach in Sukhdev Singh and R.D. Shetty and in the end Court reformulated the
agency and instrumentality test and it was held that “the picture which ultimately
emerges here is that the tests formulated 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 State within the meaning of Article 12. To the Court the question in
each case would be — whether in the light of the cumulative facts as established,
the body is financially, functionally and administratively dominated by or under the
control of the Government. Such control must be particular to the body in question
and must be pervasive and must not be merely regulatory. If this is found even if the
body is created under a statute it is State.”
As far as CSIR is concerned-it is a non-profit making body brought into

existence at the initiative of the Government to serve a definite governmental
objective of planned industrial development and Government plays a dominant role
122
(1991) 4SCC 578.
123
Id. at 21 (In the words of Court “normally, a precedent like Sabhajit Tewary which stood for a length
of time should not be reversed, however erroneous the reasoning if it has stood unquestioned, without
its reasoning being “distinguished” out of all recognition by subsequent decisions and if the principles
enunciated in the earlier decision can stand consistently and be reconciled with subsequent decisions of
this Court, some equally authoritative. In our view Sabhajit Tewary fulfils both conditions.”) para. 21).
124
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111 (The question was
whether CSIR is a State or not under Article 12. Reiterating Sabhajith Tewary the Court answered the
question in negative).
125
(In Sabhajit Tewary, a junior stenographer with CSIR filed a writ petition under Article 32 claiming
parity of remuneration with newly recruited employees of QM based on Article 14. The contention of
the employee was that CSIR is an agency of the Central Government on the basis of the CSIR Rules.
Although the Court noted that the Government takes “special care” in the activities of CSIR it
dismissed the writ petition).
110
in the governing body of CSIR. It also receives substantial funds from the
government and the assets and funds of CSIR are owned by the government. To cap
it all, the Union Government had issued the order that cases relating to service
natters of CSIR employees would be adjudicated by the Central Administrative
Tribunal. Taking into account all these factors it was held that CSIR is
administratively, financially and functionally controlled by the Government and
thus it is held as a State under Article 12 of the Indian Constitution.126
Thus with Pradeep Kumar Biswas the focus of the instrumentality or agency
test shifted from the six fold test in Ajay Hasia to the “deep and pervasive control”
test. After Pradeep Kumar in the subsequent cases Court applied the six fold test
and in addition to it the ‘deep and pervasive control’ test in Pradeep Kumar Biswas.
With the reformulation of agency or instrumentality test in Pradeep Kumar Biwas,
there is no further scope for extension of the reach of fundamental rights via Article
12 of the Constitution, the decision in is a bottleneck for all further expansion of
Article 12. Though it overruled the narrow interpretation in Sabhajit Tewary there
appears to be dim prospects of government patronized authorities bring recognized
as State after Pradeep Kumar Biswas as well as Zee Televisions.127 It is to be noted
that there is a difference between government sponsored and government patronized
authorities. According to Pradeep Kumar Biswas, mere government patronization is
not enough to hold an authority as ‘State’ under Article 12. There must be deep and
pervasive governmental control over the financial, administrative and functional
activities of the authority. If all these are cumulatively established then only an
authority becomes an instrumentality or agency of the State.
A compelling factor in the dissenting opinion was the objection to the use of
the term ‘instrumentality or agency’ as synonymous with the term ‘State’ under
Article12. The Court made rational opinion that if an entity is veiled or disguised as
a Corporation or society or in any other form found to be an instrumentality or
agency of the State then in that case it is a State in itself in narrower sense acting
through the instrumentality or agency and included in the ‘State’ in the wider sense
126
Supra 123, at para. 40.
127
UDAI RAJ UDAI, supra note 27 (Minority thus criticized the Ajay Hasia in this background by
saying that when the society was found to be an instrumentality or agency of State piercing the veil
of society what was seen was the State itself though in disguise in such a case it was not thereafter
necessary to hold that society an ‘authority’ and proceed to record that the authority is an
“instrumentality or agency” of State).
111
for the purpose of Article 12. Having found an entity, juristic or natural to be an
instrumentality or agency of the State, it is not necessary to call it as an
instrumentality or agency of the State or the Central Government and it is an
‘authority’ within the meaning of Article 12 by entirely obliterating the dividing line
between ‘instrumentality or agency of State’ and ‘other authorities.’ This trend of
the judiciary was found to have been a confusion and misdirection in the thought
process. Further it was stated that an authority must be an authority sui generis to
fall within the meaning of the expression ‘other authorities’ under Article 12. A
judicial entity, though an authority, may also satisfy the test of being an
instrumentality or agency of the State and in such cases such an authority may also
be an instrumentality or agency of State but not vice versa.
The Minority decision in the instant case altogether gives a clear picture of
the meaning of ‘other authorities’ in Article 12, that the authority should be created
by or under a statute functioning with the liability or obligation to the public.
Further, the statute creating the entity should have vested that entity with power to
make law or power to issue binding directions amounting to law within the meaning
of Article 13 (2) governing its relationship with other people or the affairs of the
people-their rights, duties, liabilities and other legal relations. In either case it
should have been entrusted with such functions as are governmental or closely
associated therewith by being of public importance or being fundamental to the life
of the people hence governmental. It is this criterion which in a given case
depending on the facts and circumstances makes an authority as an instrumentality
or agency of the State.
On the above basis various tests laid down in Ajay Hasia was put under two
categories 1st 2nd and 4th128 for determining government ownership and control and
3rd 5th and 6th 129 are the functional tests. 130 Initially the tests were considered
relevant for finding out whether an entity is an instrumentality or agency of State
128
(1) if the entire share capital of the corporation is owned by the Government; (2) when the financial
assistance given by the State is enough to cover the entire expenditure of the entity; (4) existence of
deep and pervasive State control may afford an indication that the entity is imbued with Governmental
character.
129
(3) if the Corporation enjoys a monopoly status which is either Government conferred or
Government protected; (5) if the functions of the entity are of public importance or closely related to
Governmental functions; (6) if a Government department is transferred to a corporation, it will be a
strong indicator of the fact that the entity is an instrumentality of the State.
130
(As per Lahoti J. the profounder of the test himself has used the words suggesting relevancy of those
tests for finding out if an entity is an instrumentality or agency of State).
112
but when the difference between authority and instrumentality or agency obliterated
these factors were considered relevant for testing if an ‘authority’ is a State or not.
To determine instrumentality or agency neither all tests are required to be answered
in positive nor would a positive answer to one or more tests suffice rather a
combination of one or more of the relevant factors would be relevant tin identifying
the real source of governing power, if necessary by piercing the veil.
The minority decision contains factors which are very much relevant in the
interpretation of Article 12 mainly with regard to the difference between term ‘other
authority’ under Article 12 and the test of ‘instrumentality or agency.’ Both are
different entities yet having some overlapping. The difference is mainly based on
the degree of control exercised by the government over the body in question. The
decision also reminds the alternative way of reading ‘other authorities’ with ‘within
the territory of India’ or ‘under the control of government India’ a long forgotten
phrase in Article 12. The decision also adhered to the majority view that a
cumulative effect of all the tests and a deep and pervasive control of the government
are necessary to hold an authority as an agency or instrumentality of State. The
minority view though good at some points, presents a very narrow and constricted
interpretation of ‘other authority’ and in the present scenario when the role of the
state has underwent a paradigm shift this narrow construal will not do any good for
the people. A right based approach rather than a rule oriented approach towards
Article 12 is a fundamental right is what is required today.
Followed by Pradeep Kumar Biswas, in Zee Telefilms & Ors .v. Union of
India &Ors.,131 it was contended that taking into account the broad interpretation of
Article 12 Board of Control for Cricket in India (BCCI must be held as a State. As
per the majority judgment BCCI is an autonomous body and there is little control of
government over the functions of it, and such control is purely regulatory which will
not make it a ‘State’ under Article 12 as per Pradeep Kumar Biswas so as to
indicate pervasive state control. Though the Board controls the right to profession of
131
(2005) 4 SCC 649 (In this case the petitioners were the bidders for the tender for the grant of
exclusive television rights for a period of four years. After accepting the tender for a sum of Rs. 92.5
crore, BCCI cancelled the entire process of tender arbitrarily on the ground that no concluded contract
was reached between the parties. In fact, in response to a draft letter of intent sent by the Board, the
petitioners agreed to abide by the terms and conditions of the tender. The order of the Board
terminating the contract was in question in the writ petition under Article 32 contending that the action
on the part of the Board terminating the contract was arbitrary and thus violates of Article 14 of the
Constitution).
113
cricketers under Article 19 (1)(g) of the Constitution, according to the majority
verdict unlike Article 17, 21 etc., Article 19 (1) (g) cannot be claimed against non-
state actors. 132 But despite highlighting this fact, it, was not accounted for. Thus
according to the majority the petitioners has failed to establish the prerequisite for
invoking the enforcement of fundamental right under Article 12 i.e. the violator
should be a State first.133
The Court followed the precedent in Pradeep Kumar Biswas and concluded
that the Board is not financially, functionally and administratively under the control
of the government and so it cannot be a State under Article 12 and that mere
regulatory control by the Government will not suffice to fulfill the requirements of
Article 12.134 It was held that the tests formulated in Ajay Hasia are not a rigid set
of principles so that if a body falls within any one of them it must, ex hypothesis, be
considered to be a State within the meaning of Article 12. The majority judgment
does not leave any scope for further extension of the reach of the fundamental rights
via Article 12 of the Constitution and it is pertinent to note here that due to the
strength of the Bench, the ratio in this case would be binding on all other
Constitutional Benches, comprising of five judges unless the same were to be
overruled by a larger bench. Court also noted that the State is distancing from its
socio-economic obligations and is concentrating more on governance than on
business. Therefore the situation prevailing at the time of Sukhdev Singh is not in
existence. So there is no need to expand the meaning of Article 12.
According to the minority opinion the though a private body, BCCI

discharges public duties which are in the nature of state functions like selection of
team, making rules that govern the activities of the cricket players, umpires and
other etc. These activities are all in the nature of state functions and therefore BCCI
is an instrumentality of State. It enjoys a virtual monopoly over the game of cricket.
It represents India in international tournaments. All these must be held to have
changed the character of BCCI from private to public. Instances were taken from the
judicial decisions and public laws of other countries and thereby opened a forum for
132
Id. at para 34 (But BCCI enjoys monopolistic control over not only the game of cricket but also has
pervasive control a person's overall cricket career as it has the sole authority to decide on the
membership and affiliation to any particular cricket association, which in turn would affect his right to
play cricket at any level in India as well as abroad).
133
Id. at para. 28.
134
Id. at 704.
114
judicial review of actions taken by BCCI when it encroach the fundamental rights.
The necessity to keep the law in consonance with the development taken place after
independence was also stressed by referring John Vallamattom135 and the concept of
right to development as a human right.136
By applying public functions test to the facts it was said that there cannot be
a single test for defining public functions. Statutes are not the only means of
conferring public functions in a body, it can be assumed voluntarily or through
‘prescriptive patterns of conduct.’ 137 The decision also stated tests to find State
Action, like whether the body is a public authority or has public duty to perform,
obligation to protect public duties, regulation of fundamental right to profession or
vacation of a citizen, presence of de jure or de facto monopoly, outsourcing of
state’s legislative function, presence of positive obligation of public nature.
Regarding applicability of Pradeep Kumar Biswas it was said that it would have
application only when the body is created by the State itself for different purposes
but incorporated under the Indian Companies Act or Societies Registration Act, the
questions raised questions raised in Pradeep Kumar Biswas were neither canvassed
and there was no necessity for that and therefore the case cannot be treated as a
binding precedent under 141 of the Constitution.138
The minority decision was well thought out it altogether placed BCCI as
‘other authority’ under Article 12 by drawing out new criterions like coercion test,
joint action test, public function test, entertainment test, nexus test, supplemental
governmental activity test, and the importance of sport test. The decision has thus
combined many factors and viewed BCCI as a power centre in the era of
globalization. The minority was also right in their rational behind rejecting the ratio
135
John Vallamattom & anr. v. Union of India JT 2003 (6) SC 37.
136
United Nations Covenant on Civil and Political Rights art. 18 (“To the Court right to development
and the preservation and protection of human right precede form a common platform. Both reflect the
commitment of the people to promote freedom, well-being and dignity of the individual.”).
137
(By reason of Prerogative, Charter or Franchise. To substantiate the view Court also referred A.J.
Harding on ‘Public Duties and Public Law’ wherein it was mentioned “there is for certain purposes,
particularly for the remedy of mandamus or its equivalent). a distinct body of public law, certain bodies
are regarded under that law as being amenable to it, certain functions of these bodies are regarded
under that law as opposed to merely permitting certain conduct, these prescriptions are public duties. In
BCCI v. Cricket Association of Bengal, Court encountered again with the question on the status of
BCCI as State under Article 12. It was held not a ‘state’ but reaffirmed the ration in Zee Television that
though it is not a state under Article 12 writ can be filed against it under Article 226. The Court also
recognized that the functions of BCCI as public functions).
138
CONSTITUTION OF INDIA art. 141 (“The law declared by the Supreme Court shall be binding on
all courts within the territory of India.”).
115
in Pradeep Kumar since the functions performed by BCCI cannot be compared to
an educational society or such other public corporations cannot be equated at any
cost.
After analyzing the tests it can be seen that the approach of the Court
regarding the interpretation of Article 12 is cumbersome. In US the position is
much more clear and flexible. In India irrespective of the body in question and the
nature of the rights involved the same tests are applied again and again. The test of
instrumentality or agency as a condition precedent to establish an authority as ‘other
authority’ is quite stringent especially in situations when the State is withdrawing
from the welfare activities. Thre I no clarity in determining what is a public
function, the trend adopted by the judiciary makes functions of private action/actor,
private function forever. The Court is not willing to go beyond the earlier
precedents. But in cases involving interpretation of ‘other authorities’ a case to case
analysis will be more apt rather than devising a straitjacket formula for all cases.
3.8 Bodies under ‘Other Authority’
(a) Public Corporations
A public corporation is a hybrid organization combining the features of a

business company and a government department.139 Their powers are set out in the
Acts which created them and they are empowered to make regulations subject to the
doctrine of ultra vires.140 Corporations have emerged in Indian scenario on account
of the transformations in the nature of governmental functions in a Welfare State
and they are regarded as the third arm of the government. The genesis of the
emergence of corporations in India as instrumentalities and agencies of government
can be found in the Government of India Resolution on Industrial Policy. 141 The
139
D.D. BASU, ADMINISTRATIVE LAW 345 (2000). (“A public corporation is set created by a
statute whenever it is intended to take over some industry or social service from private enterprise and
to run it in public interest. Instead of giving over the public corporation which has a separate legal
entity and can carry on the function with autonomy subject to the ultimate control of Parliament and the
Government., mainly on policy matters, so as to safeguard the interest of the public.”).
140
Id.
141
(It was in pursuance of this policy and subsequent resolutions on Industrial Policy that corporations
were created by the Government for setting up and management of public enterprises and carrying out
public functions. “With the advent of the welfare state the civil service, which traditionally carried out
functions of Government through natural persons, was found inadequate to handle the new tasks of
specialized and highly technical character. To fill the gap it became necessary to forge a new
instrumentality or administrative device for handling these new problems and that is done by public
116
reason behind this was that the civil service was found inadequate to discharge
governmental functions, which were of traditional vintage. Article 298 of the Indian
Constitution142 also empowers the State to carry on a business or trade by virtue of
its 'executive power.'143
In India, Supreme Court in a number of decisions held that Public

Corporations and Undertakings fall within the definition of State, therefore these
corporations and undertakings are subject to Part III of the Constitution. Now there
is little indeterminacy as to the status of Corporation in relation to Article 12 of the
Constitution. Thus State Bank of India, 144 Food Corporation of India, 145 State
Financial Corporation,146 Central Inland Water Transport Board,147 Steel Authority
of India Limited,148 Warehousing Corporation149 etc. would fall in the category of
‘State’ and their acts have to be in conformity with the Fundamental Rights.
In the 145th Report of the Law Commission,150 Bureau of Public Enterprises

have recommended that Public Sector Undertakings must be excluded from the
purview of Article 12 so as to ensure avoidance of judicial review and interference
by the Courts in the functioning of these Undertakings. But it was found to be-not-a
proper measure to-be adopted for-dealing with the difficulties experienced by PSU
in the matter of award of contracts, rejection of tenders, service matters and the like
arising out of the present applicability of Article 12 to such undertakings. It was also
concluded that such an amendment will be against the constitutional philosophy and
corporations which has become the third arm of the Government. They are regarded as agencies of the
Government.”) As observed in RD. Shetty.
142
CONSTITUTION OF INDIA art. 298 (“The executive power of the Union and of each State shall
extend to the carrying on of any trade or business and to the acquisition, holding and disposal of
property and the making of contracts for any purpose:
Provided that— (a) the said executive power of the Union shall, in so far as such trade or business or
such purpose is not one with respect to which Parliament may make laws, be subject in each State to
legislation by the State; and
(b) the said executive power of each State shall, in so far as such trade or business or such purpose is
not one with respect to which the State Legislature may make laws, be subject to legislation by
Parliament.”).
143
UDAI RAJ UDAI, supra note 27, at 700.
144
State Bank of India v. Kalpaka Transport Company, AIR 1979 Born. 250.
145
Workmen , Food Corporation of India v. Food Corporation of India (1985) 2 SCC 136; Satpal v.
Himachal Pradesh Food Corporation (1977) SLR 447.
146
Gujarat State Financial Corporation v. Lotus Hotels Pvt. ltd. AIR 1983 SC 848.
147
Balbir Kaur v. Steel Authority of India Ltd. (2006) 6 SCC 493.
148
Steel Authority of India ltd v. National Union Water Front (2001) 7 SCC 1.
149
K.L. Mathew v. Union of India AIR 1974 Ker.4; U. P. Warehousing Corpn. v. Vinay AIR 1980 SC
at 845-46.
150
Law Commission 145th Report150 on Article 12 of the Constitution and Public Sector Undertakings
(02/10/2015) available at http://lawcommissionofindia.nic.in/101-169/Report145.pdf.
117
would take away a large slice of activities, conducted practically under the control
of the State, from the ambit of fundamental rights especially Article 14 of the
Constitution.151
(b) Government Companies
Apart from corporations created by statute there are a number of non-

statutory companies sprung up with the advent of State into the commercial sphere.
These are to all intents and purposes, limited liability companies registered under
the Companies Act. But owing to the fact that the Government is the owner of the
share capital or the major portion thereof, these companies raise the question
whether they should be treated as government or public bodies for any purposes. It
was held by the Supreme Court that “unless entrusted with any public duties, by
statute152 or it constitutes an agency of the government,” no relief can be had against
a government company, in a proceeding against Article 32 or 226 of the
Constitution.153
Notwithstanding the predominant Government control, Government

Company was not identified with the Government and the employees could not
invoke Article 311 (2)154 The reason is that there is no relationship of master and
servant between these employees and the State: The status of a government
company is only for the purposes of that Act, namely, to confer upon it special
rights and obligations. Later the position regarding the applicability of Article 311
(2) transformed with the decision of Supreme Court in U. P. Warehousing Corpn. v.
Vinay,155 and Kalra v. Projects & Equipment Corpn.156 and it was held that even
though Article 311 (2)157 may not be attracted to a government company yet, when a
government company or a public corporation constitutes an agency or
instrumentality of the State for the purposes of Article 12 of the Constitution, the
principles underlying Article 311 (2) should be applicable to employees of this
151
CONSTITUTION OF INDIA art. 14 (“The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.”).
152
Agarwal v. Hindustan Steel AIR 1970 SC 1150 at para.10, approved in R.D Shetty v. International
Airport Authority AIR 1979 SC 1928 at para. 30; Heavy Engineering Mazdoor Union v. State of Bihar
AIR 1970 SC 1150.
153
Praga Tool Corporation v. Immanuel AIR 1969 SC 1306; CF Guru Gobindh v. Sankari Prasad AIR
1964 SC 254.
154
Supra note at 103.
155
AIR 1980 SCC at 845-46.
156
AIR 1984 SC 1361 at para. 20.
157
Supra note 103.
118
category of government companies as for principles of natural justice read with
Article 12.158
As regards Article 12 of the Constitution too, the consensus of opinion in the

High Court was that notwithstanding the share or management control by the
government, a government company did not lose its juristic entity as a company
registered under the Companies Act, 1956 so as to be identified with the State under
Article 12. But this stand was later changed with the decision of the Supreme Court
in R.D. Shetty 159 and Ajay Hasia. 160 In Som Prakash Rekhi v. Union of India 161
wherein for the first time Supreme Court encountered the question as to whether a
Government Company is a ‘State’ or not, and it was held that Government Company
is a ‘State’ under Article 12.162
For the application of state agency it is immaterial whether a corporation has

been created by or under a statute.163 What is essential is that the company must
exercise some function of the government and should be acting on behalf of the
government and not on its own behalf. 164 By applying this test Central Water
Transport Corporation ltd,v. Brojo Nath Gangulay165 a government company was
held as a ‘State’ within the meaning of Article 12. Court held an unconscionable
term in the employment contract of the respondent as invalid as per Section 16 and
158
Id.
159
(It was held that anybody or authority, whether constituted by statute or not may come within the
definition of ‘State’ under Article 12 if it acts as an ‘agent’ or ‘instrumentality of the government.’
Agency means the `factum' of such body exercising governmental powers or functions, so that its acts
may be treated under constitutional law, to be ‘Sate Action’).
160
In Ajay Hasia, V.R. Krishna Iyer J. held that the enquiry has to be not as to how the juristic person
is born but why it has been brought into existence. The same test has been applied by him in Som
Prakash Rekhi v. Union of India AIR 1981 SC 212.
161
1981 (1) SCC 449; AIR 1981 SC 222 decided on the same day (Nov. 30, 1980) on which Ajay
Hasia was decided.
162
Id.
163
(Hence a Government Company or an ordinary company or Society registered under the Society's
Registration Act would be regarded as agency or instrumentality of government for the application of
Article 12 if the tests of state control over it are established) MINHAS v. Indian Statistical Institute
AIR 1984 SC 363, Ramachandra v. Union of India AIR 1984 SC 541; Sabhajt Tewary v. Union of
India AIR 1975 SC 1`329.
164
R.D. Shetty at para. 20.
165
1986 (3) SCC 156; AIR 1986 SC 1571 (In this case the plaintiff worked in a company which was
dissolved by Court’s order and they were inducted into the defendant corporation. After serving for a
long period of time the plaintiff’s services were terminated arbitrarily on three months’ notice. The
termination was done in accordance with a clause in the terms and conditions of the employment
contract. The question was whether the term can be held void/voidable under Indian Contract Act by
declaring the term as unconscionable).
119
23 of Indian Contract Act, 1872166 as it afforded only a less bargaining power to the
employee. The term was held to be opposed to the public policy as it affected the
rights and interest of the employees and created a sense of insecurity.
In Air India Statutory Corporation & ors.v. United Labour Association &
ors., 167 the Court directed that all contract workers shall be regularized as
employees of the Air India Ltd. It is pertinent to note the view expressed by the
Court, according to the Court “while interpreting the Act, judicial orientation should
shift towards public law orientation rather than private law. Such an interpretation
would elongate the spirit and purpose of the Constitution. The individual interest
must give way to the broader purpose of establishing social and economic
justice.”168
But subsequently, this case was overruled in Steel Authority of India ltd. v.
National Union, Water Front Workers 169 wherein Court held that abolition of
prohibition of contract labour under Section of the Contract Labour (Regulation and
Abolition) Act, 1970 will not automatically become the employees of the principal
employer. The main thrust behind this decision is the New Economic Policy of 1991
and not the socio economic principles which were put into limelight in Air India.
The decision also restricted the scope of public law by holding that the divide
166
Indian Contract Act, § 16 defines undue influence wherein it says that if the relationship subsisting
between the parties are such that one of the parties is in a position to dominate the will of the other and
uses is position to obtain an unfair advantage over the other, whereas § 23 says that considerations or
object of an agreement is unlawful inter alia if it is opposed to public policy.
167
AIR 1997 SC 645 (In this case a writ petition was filed to abolish the contract labour system
adopted by the Steel Authority Steel Authority by engaging in Contract Labor for sweeping, cleaning,
dusting and watching of the building owned and occupied by the appellants. Despite the order from the
Central Government prohibiting Contract Labour under the provisions of Contract Labor Act, 1970)
appellants continued contract labour and thereafter a writ was filed to absorb the contract labourer as
employees of the corporation by the respondent).
168
Id. at para 26 (It was observed by the Court that that the instrumentality, agency or person must have
an element of public service and should be accountable to health and strength of the workmen and
women, adequate means of livelihood, the security for payment of living wages, reasonable conditions
of work, decent standard of life and opportunity to enjoy full leisure and social and cultural activities to
the workmen. Their action should be guided by public interest in exercise of public power or action
hedged with public element and is open to challenge. It must meet the test of arbitrariness, fairness and
justness and should not prescribe any unconstitutional conditions or limitations in their actions).
169
(2001) 7 SCC 1 (In this case the appellants were a Central Government Company engaged in the
manufacture and sale of iron, steel etc. in various plants in India and also their business includes import
and export of several products. The goods were handled in the stockyards by contractors rough calling
tenders. Government of West Bengal issued a notification prohibiting contract labour in stockyards
against which writ was filed. During the pendency of the petition Air India case was delivered which
stated that in case of Central Government Companies, Central Government is the appropriate
regulating authority under Contract Labour Act, 1970. Thus remedy was sought on two grounds.
120
between public law and the private law is material only with regard to the remedies
availed for enforcing rights and not in regard to interpretation of the statute.
In BALCO v. Union of India170 it was held disinvestment which is a policy

decision of the government have consistently refrained from interfering economic
decisions because of the fact that economic expediencies lack administrative
adjudication. It was also held that Article 12 does not place any embargo on an
instrumentality from changing its character. By holding so Court invalidated the
claim of the employees of the BALCO that the disinvestment policy of the Union to
disinvest and transfer 51% of shares of Bharat Aluminum Company ltd. is invalid. It
was the claim of the employees that disinvestment affects the rights given to them
under Article 14 and 16 of the Constitution.
As far as the economic or political policy decision is concerned government

enjoys immunity and the Court can strike down a policy decision only if it is
arbitrary, discriminatory or mala fide.171 This position was affirmed in the recent
case of State of Madhya Pradesh & ors. v. Mala Banerjee172 wherein it was held
that “where a policy is contrary to law or is in violation of the provisions of
Constitution or arbitrary or irrational the Courts must perform their constitutional
duties by striking it down.”
In Mysore Paper Mills ltd. v. Mysore Paper Mills Officers'

Association173Mysore Paper Mills was held to be a State since more than 97% of the
share capital was contributed by the state government and the company was
entrusted with important public duties obliging to undertake, permit, and sponsor
rural development. Besides out of 12 directors 5 are government and department
persons and other directors were also to be appointed with the concurrence of the
government which shows that the state government has deep and pervasive control
over the said company. In Balmer Lawrie & Co. Ltd & ors. v. Partha Sarathi Sen
170
2002 (2) SCC 333.
171
Permian Basin Area Rate cases 390 U.S. 747 (1968)
172
2015 (3) SCALE 721 (In this case discriminatory conditions in the pay scale was challenged by the
petitioner who was working as teachers in the Educational and Tribal Welfare Department,
Government of Madhya Pradesh).
173
AIR 2002 SC 609 at para. 6; Federation of Railway Officers Association v. Union of India 2003(4)
SCC 289.
121
Roy & ors.,174 by applying the test in Pradeep Kumar Biswas Court held that the
company is an ‘authority’ amenable to writ jurisdiction of the High Court.175
Thus we have seen the cases where the public policy of the realm and the
fundamental rights of the individual came face to face. Though Court can strike out
public policy it can be done sparingly. In the era of LPG most of the policy
decisions are done through executive actions and with least consideration of the
individual rights. In such situations by giving leeway to the policy decisions, the
judiciary should be giving wide scope for public policy at the cost of fundamental
rights of the individual. It can also be seen that after Pradeep Kumar Biswas the
cumulative effect of all the criteria is a mandatory condition to hold an authority as
‘State’ and it limits the scope of Article 12 as well as of fundamental rights.
(c) Registered Societies
Applying the rationale in Ajay Hasia several non-statutory bodies were also
held to be authorities under Article 12. The Council for Indian School Certificate
Examinations (CBSE), a society for imparting education and holding examinations
was held to be an authority in Vibhu Kapoor v. Council of ISC Examinations176
Indian Council of Agricultural Research 177 Sainik School were held to be an
authority since it was ‘fully funded’ by the Central and state Government and the
Central Government exercises complete control over it. Similarly, in Sheela Barse v.
Secretary, Children Aid Society, 178 a registered body having Chief Minister of
Maharashtra as the ex-officio President and the Minister of Social Welfare as the
Vice President was held to be amenable to Article 12.
In Tekraj v. Union of India179 the Supreme Court has held the Institute of
Constitutional and Parliamentary Studies as not being an ‘authority’ under Article
12. The institute was receiving grants from the Central Government and has the
President of India, Vice-President and the Prime Minister among its honorary
174
2013 (2) SCJ 818 (In this case the question was whether the appellant a public limited company is a
State or not. It was a subsidiary of Indo-Burma Petroleum C. ltd. which was also a government
company holding 61.8 % of the shares of the appellant company).
175
In deciding so the Court taken into account the objectives, functions, management and control,
extent of domination by the government, and control by Government being not regulatory and
cumulative effect of all these factors.
176
AIR 1985 Del 142.
177
P.K. RamachandraIyer v. Union of India AIR 1984 SC 541.
178
(1987) 3 SCC 50.
179
AIR 1988 SC 469.
122
members. The Central Government exercises a good deal of control over the
Institute. But in spite of Government funding and control, the Court has refused to
hold it as an authority with the remark that “ICPS is a case of its type-typical in
many ways and the normal tests may perhaps not properly apply to test its
character.”
Similarly, in Chander Mohan Khanna v. NCERT, 180 National Council of

Educational Research and Training, a largely autonomous body was held to be
outside the purview of Article 12 since its activities are not wholly related to
governmental functions; government control is mostly confined to ensuring that its
funds are properly utilized and because its funding is not entirely from the
government sources. In Zee Telefilms the Court held that ‘BCCI’ is not a State
taking into account the fact that it is not financially, functionally and
administratively under the control of the Government. Subsequently in Sindhi
Education Society v. Chief Secretary, Govt. of NCT of Delhi 181 it was held that
unless all the three aspects of state control viz; ‘financial control,’ ‘managerial
control’ and ‘administrative control’ are exercised by the State over any other
authority, society, organization or private body it will not be permissible to term that
society, organization or body is State. Thus it can be seen that in the case of
registered societies extensive state control is mandatory. The functional test, grant-
in-aid cannot play a prominent role here.
(d) Nationalized Banks
The question whether banks are ‘state’ or not had been answered in a number
182
of cases. As per various decisions nationalized banks are purely an
instrumentality of state under Article 12 of the Constitution. In State Bank of India,
Canara Bank v. Ganesan,183 Madras High Court held that “nationalized banks are
falling within the ambit of the other authority, the right to get salary is a right to
property and the nationalized banks shouldn’t act arbitrarily and illegally
180
(1991) 4 SCC 578.
181
I.T. 2010 (7) SC 98 (In this case the question was whether the provisions of Delhi School Education
Act, 1973 violates the minority character of Sindhi School Education Society).
182
Krishna Reddy v. Canara Bank AIR 2002 Kant. 100.
183
(1981) 1 LLJ 64 (In this case the employees of the Canara Bank held a strike and during the
proposed strike hours they did not do the allotted work. As a result the Bank withheld the pay and
allowances for the whole day during which they conducted the strike).
123
withholding the salary of their employees for the period during which they had
worked.”184
In the case of nationalized banks the test which is applied is ‘test of control.’
As mentioned in the 145th Report of Law Commission of India “tests are not
exhaustive sometimes one or other factor may come to be emphasized but
essentially, it is the totality of the circumstances which would be taken into
account. 185 The fact that share contribution of the government is very dominant
may, along with other factors become material, as happened in the case of
Hyderabad Commercials v. Indian Bank & ors. 186 wherein Court has recognized
Indian Bank as ‘instrumentality of state’ and directed to perform its function
honestly to serve its customers.
3.9 Scope of Article 32 and 226 vis-a-vis Article 12

The language used in Article 32 187 and 226 188 of the Constitution is very
wide. Under Article 226 every High Court has the power to issue directions, orders
184
Ranjit Kumar Rajak v. Union of India (2009) 5 Bom CR 227.
185
Supra note 149.
186
1991 (2) Supp. SCC 340 (In this case the appellant had been depositing money through cheques in
its current account from time to time without authorization).
187
CONSTITUTION OF INDIA art. 32 (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 clauses (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.”).
188
CONSTITUTION OF INDIA art. 226 (1) (“Notwithstanding anything in article 32 every High
Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority
or person may also be exercised by any High Court exercising jurisdiction in relation to the territories
within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such person is not
within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any
other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such
interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the
vacation of such order and furnishes a copy of such application to the party in whose favour such order
has been made or the counsel of such party, the High Court shall dispose of the application within a
124
or writs to any person or authority including in appropriate cases any Government
within the territories in relation to which it exercise its jurisdiction. It can also be
issued for “for the enforcement of any of the fundamental rights and for any other
purpose.” The term authority used in Article 226 has a wider ambit than the term
authorities in Article 32. It is because Article 12 is relevant only for the purpose of
enforcement of fundamental rights under Article 32 whereas Article 226 confers
power on the High Courts to issue writs for the enforcement of fundamental rights
as well as non-fundamental rights.189
When Article 32 is silent about against whom a remedy would lay against
Article 226 expressly allows the High Court to issue such remedies against ‘any
person or authority, including any government. 190 This wide definition of Article
226 often helps the Court in enforcing fundamental rights against bodies performing
functions in public interest or against bodies performing public duties without
invoking Article 12 and 32.
In Anandi Mukta Sadguru it was held that; the words “any person or
authority” used in Article 226 are, therefore not to be confined only to statutory
authorities and instrumentalities of the State. They may cover any other person or
body performing public duty. The form of the body concerned is not very much
relevant. What is relevant is the nature of the duly imposed on the body. The duly
must be judged in the light of positive obligation owed by the person or authority to
the affected party. No matter by what means the duty is imposed. If a positive
obligation exists mandamus cannot be denied.”
3.10 Private Actors as State: Position in India and US

In the above mentioned cases the question encountered by the Court was the
applicability of Article 12 as against public corporations, registered societies,
government companies etc. The Court found enough nexus between the
period of two weeks from the date on which it is received or from the date on which the copy of such
application is so furnished, whichever is later, or where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case
may be, the expiry of the said next day, stand vacated.”).
189
Shri Anandi Mukta Sadguru Trust v. V.R. Rudani AIR (1989) 2 SCC at 1097-98 (In this case a
dispute between teachers association and university and teachers were referred to the Vice-chancellor
and he ordered for payment to the teachers. In view of this order the college run by the trustees of the
appellant college retrenched it employees. The retrenched employees filed writ petition demanding
arrears of salary, gratuity, and provident fund).
190
State of Orissa v. Ram Chandra Dev AIR 1964 SC 685.
125
authority/body in question and the government. Both in Indian and in the US
context some nexus between the two is very much essential to constitute State
Action. The cases are also decided in the background of the political and economic
developments taken place during those times and the same is reflected in the
decisions as well. For instance the decision in Sukhdev Singh was decided taking
into account the ‘Welfare State’ functions and R.D. Shetty reflects the recognition of
new forms of government wealth in the form of largess which was in the backdrop
of ‘License Raj’ Government.
This attitude of the judiciary is a testimony to the fact that judiciary played
its part as a ‘social engineer’ in the changing ‘politico-legal’ scenario. But the
situations have further changed due to the foray of neo-liberalism developments in
India. The judiciary has to move again one step further if it wants to dispense with
the constitutional responsibility as the protector and guarantor of the fundamental
rights of the people despite the fact that other organs are distancing away from the
constitutional obligations. In India in none of the cases there was a declaration to the
effect that private actors are state.
In M.C. Mehta v. Union of India191 the Court had the opportunity to hold
Shriram Gas and Fertilizer Industry as ‘State Actor’ since it was performing a public
function which and the activities of it involved great public interest since it could
affect the lives of large number of people. But Court declined to give such a verdict.
The Court gave an opinion that the historical context in which the doctrine evolved
in US is not applicable to Indian situation but US doctrine of State Action can serve
as useful guide and the principles behind various doctrines of state action can be
Indianised and harmoniously blended with Indian Constitutional jurisprudence.192
In US, the doctrine is mainly applicable to state and authorities who

violate the mandate of Bill of Rights. It is also held applicable to situations
where state officials acted either in violation of or in excess of their authority
191
AIR 1987 SC 1086 (The question that arose in MC Mehta was whether victims of a gas leak from a
private chemical and fertilizer plant could sue for compensation under Article 32 of the Constitution).
192
Id. at para. 825 (“The historical context in which the American doctrine of State action evolved in
the united States is irrelevant for the purpose of Indian Courts, especially in view of Art. 15 (2) of the
Indian Constitution. But, it is the principle behind the doctrine of State aid, control and regulation so
impregnating a private activity as to give it the colour of State action which can be applied to the
limited extent to which it can be can be Indianised and harmoniously blended with Indian constitutional
jurisprudence.”).
126
under ‘colour of law theory’ and also against the acts of private persons under
particular circumstances under ‘instrumentality theory.’ 193 Thus the prohibitions
under the Fourteenth Amendment are also applicable even to the acts of private
persons. 194 But the major difficulty posed by this doctrine is the problem of
identifying the standards by which ‘private action’ is converted to state action
without obliterating the two.195
The State Action doctrine focuses upon actions which are subject to
constitutional review namely actions that are attributable to the government. 196
All the cases involving, state action issue has an essentially similar fact pattern.
In these cases the aggrieved party feels that his rights or freedoms have been
violated by the actions of another. The issue is regarding which party's rights are
of the greater constitutional significance. This question is answered by
determining whether the challenged party's activities involve sufficient
governmental action so that they are subjected to the values and limitations reflected
in the Constitution and its amendments.197
If the Court finds sufficient connections to the government it will declare

that the aggrieved party's rights must prevail. If the Court finds that the alleged
party does not have sufficient contacts with the government to justify subjecting
him to constitutional limitations, his activity will be free from-constitutional
limitations and his rights will prevail. Thus the concept of state action is about
finding governmental element in the act which is done by the alleged party so as to
make it fall under the purview of the constitutional limitations. 198 If the alleged
activity happens to be one which is traditionally performed by the government
193
E. Chemirinsky, Rethinking State Action, 80 NW. UL. REV. 504 (1985).
194
(Marsh v. Alabama 326 US 501, (1946); Rice v. Elmore 165 F.2d387 (4th Cir. 1945) 326 US 721
(1945); Kerr v. Enoch Pratt Free Library 149 F.2d 212 1948; Kern v. City Comm'rs of Newton, 151
Kan. 565, 100 P.2d 709 (1940); Culver v. City of Warren, 84 Ohio App. 373, 83 N E. 2d 82 (1948).
195
JOHN E. NOWAK, RONALDL D. ROTUNDA, NELSON J. YOUNG, CONSTITUTIONAL
LAW, 497-498 (1983) (In US whether a private authority is ‘state’ or not is determined by analyzing
the answers to the questions such as (i) did the government grant any aid to the private person? (ii) did
the government give any authority to him? (iii) Is he carrying on a function of a governmental nature?
If these questions are answered in affirmative then lastly whether there is enough aid or `authority' or
‘function’ to make the private person into some sort of 'instrumentality' by reason of an affinity to the
movement).
196
Wilson R. Huhn, The State Action Doctrine and the Principles of Democratic Choice, 34
HOFSTRA LAW REVIEW 1379, 1379-1460 (2006).
197
Donald M. Cahen, The Impact of Shelly v. Kraemer in the State Action Concept, 4 CAL. L. REV.
718-720 (1956).
198
JOHN E. NOWAK, supra note 196, at 497-498.
127
then it will be a case fit for applying the doctrine of state action.199 The doctrine
was effectively used to prohibit racial discrimination in US.
3.11 Conclusion
The words ‘State’ and ‘Authority’ used in Article 12 remain as great

generalities of the Constitution the content of which has been and continuously
supplied by the Court from time to time. Initially the definition was treated as
exhaustive and confined to the authorities or those which could be read ejusdem
generis with the authorities mentioned in the definition of Article 12. The next stage
was reached when the ‘State’ came to be identified with the conferment of sovereign
power by law. A considerable change happened when Mathew J. applied the test of
instrumentality and agency i.e. ‘the voice and hands approach’ in Sukhdev Singh,
according to which the government must be acting through the body in question. R.D.
Shetty and Ajay Hasia took the test to another level and established that the
cumulative effect of the entire test i.e. government monopoly, public functions,
financial and administrative control, transfer of a government department as necessary
to call an entity as an ‘instrumentality or agency’ and thereby ‘other authority’ under
Article 12. These tests were crystallized and became a single test in Pradeep Kumar
Biswas which stated that if a body or entity if financially functionally and
administratively controlled by the government, then the body or authority can be held
as a state.
Constitution should be kept adept to meet the social transformation. This role
is in the hands of the judiciary. Now non-state actors are the power-centers in the
society. Most of the essential services are at their hands and there is a diminution in
the role of the state as ‘service provider.’ In this context the judiciary needs to relook
into the feasibility of tests are devised by the Court under Article 12 to enforce
fundamental rights against private actors. A declaration of private actors as ‘State’ is
necessary because of the changing role of State in the light of the neo-liberal reforms
inducted from 1991 onwards. Now the most of the functions traditionally performed
by the states are performed by private actors. If the fundamental rights are rendered
ineffective against private bodies when they violate fundamental right it is a clear
negation of constitutional values and principles. The US doctrine of state action can
199
Id.
128
serve as a tool to interpret and include private actors as ‘State’ under Article 12. For
the same purpose the following chapter analyses the US doctrine of State Action by
giving emphasis to the various tests employed by the Court in finding state action in
private actions and actors.
129
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Volume 3; Issue 6; November 2017; Page No. 10-13
Expanding scope of article 12 of the constitution of India and recent developments

Dr. Mita Poddar
Assistant Professor, National University for Study and Research in Law, Ranchi, Jharkhand, India
Abstract
The concept of State has been discussed by many political thinkers and defined in different ways under various literatures. This
article discusses about the scope of the definition of the State under article 12 of the Constitution of India. The scope of article 12
has been expanded throughp judicial decisions from time to time. The term other authorities has been widely interpreted by the
judiciary in a number of cases. The discussion also includes the recent developments and the role of judiciary in this field. In this
paper it is mentioned that how the fundamental rights are protected through judicial activism. It is important to note that any
company or institution and cooperative societies may also be included within article 12 if they satisfy the test of agency or
instrumentality of the State.
Keywords: definition of the state, constitution of India, fundamental rights
Introduction fundamental rights conferred by the 14th amendment. In

Virginia v. Rives [4], the Supreme Court observed that a State
…….It is the business of the State………to maintain the acts by its legislative, its executive, or its judicial authorities.
conditions without which a free exercise of the human It can act in no other way.
faculties is impossible. T.H. Green
Definition of the State under article 12 of the Indian
The term ‘State’ has been defined in various ways by different Constitution
political philosophers. After making a study on the various The Constitution of India defines the State under article 12. It
ideas and opinions of different classical, medieval and modern is said under this article that State means and includes the
philosophers one can better understand the importance and Government and the parliament of India and all the State
significance of the relationship between the individual and the Governments as well as the Legislatures of each state in India
State. The political thinkers from ancient time through middle and all local authority and other authorities inside the territory
age and modern time have provided divergent and sometimes of India or under the control of the Government of India. In
diametrically opposite ideas about the nature, purpose, this definition everything is clear except the term other
functions and relationship with the individuals and the State. authorities. Therefore, for the protection of the fundamental
The Greeks mentioned polis for City States because at that rights it is important that the definition of the state must be a
ancient time there were City States existing in Greece. very comprehensive one. Therefore, article 12 gives an
Aristotle’s ‘Polis’ refers to a city community. MacIver was of extended meaning to the words ‘the state’ wherever they occur
the opinion that the Greek city communities were existing as in Part III of the Constitution. Under this definition not only
transitional forms rather than a complete State. MacIver said the Executive and Legislative organs of the Union and the
“perhaps they should not be included within the classification States, but also local bodies for example municipality and
of States any more than the pithecanthropus is to be included ‘other authorities’ which include the instrumentalities or
among the races of man [1]. agencies of the State.
Professor Gilchrist defines the State as: “The State is a
concept of political science and a moral reality which exist Scope of Article 12
where a number of people living on a definite territory, are The term “State” has been very widely defined with a view to
unfit under a Government which in internal matters is the securing the guarantee of fundamental rights in respect of all
organ for expressing their sovereignty and in external matters possible institutions. The scope of this definition has been
is independent of the Governments [2]. further expanded by judicial interpretation of the term ‘other
Robert A. Dahl defined the State as: “The political system authorities’. This expansive interpretation promotes the
made up of the residents of the territorial area is a State [3]. expansion of administrative law as more bodies are covered
In the United States, a judicial decision is included in the under its scope. It helps in the expansion of judicial review as
concept of state action for the purpose of enforcement of the many more bodies become subject to the writ jurisdiction, and
it also makes bodies amenable to the restrictions of
1
MacIver,The Modern State,at 338
2
Professor Gilchrist:”Principles of Political Science” at 17, 1957.
3
Robert A.Dahl: “Modern Political analysis”, at 12. 4
Virginia v. Rives, (1880)100 U.S. 313 (318).
10
fundamental rights. The expression local authorities include a ‘Panchayat’ a ‘Port

For better understanding the expanded meaning of the term trust’ or other bodies coming within the definition of ‘local
“other authorities” in article 12, it is necessary to trace the authority’ in S.3 (31) of the General Clauses Act, 1897.
origin and scope of article 12 in the Indian Constitution. A local authority is a representative body. Merely because the
Present article 12 was introduced in the Draft Constitution as Housing Board, constituted under S.3 of Haryana Housing
article 7. The Court quoted with approval the observation of Board Act, 1971, is authority under article 12 and it cannot be
Dr. Ambedkar in the Constituent Assembly. While initiating a treated as a local authority. So also are Calcutta State
debate on this article in the Draft Constitution in the Transport Corporation and U.P. Forest Corporation.
Constituent Assembly, Dr. Ambedkar Described the Scope of The expression other authorities has different dimensions and,
this article and the reasons why this article was placed in the thus, must be a liberal interpretation.
Chapter on fundamental rights as follows: In Concise Oxford English Dictionary [10] the word ‘authority’
“The object of the fundamental rights is twofold. First, that has been defined as under:
every citizen must be in a position to climb those rights. “1,the power or right to give orders and enforce obedience.2, a
Secondly, they must be binding upon every authority. I shall person or organization exerting control in a particular political
presently explain what the word ‘authority’ means – upon or administrative sphere.3, the power to influence others based
every authority which has got either the power to make loss or on recognized knowledge or expertise.”
the power to have discretion vested in it. Therefore, it is quite Broady, there are three different concepts which exist for
clear that if the fundamental rights are to be clear, then they determining the question which fall within the expression
must be binding not only upon the Central Government, they “other authorities”:
must not only be binding upon the Provincial Government, 1. The corporations and the societies created by the State for
they must not only be binding upon the Governments carrying on its trading activities in terms of article 298 of
established in the Indian States, they must also be binding the Constitution wherefrom the capital infrastructure,
upon District Local Boards Municipalities, even village initial investment and financial aid etc. are provided by the
panchayats and taluk boards, in fact, every authority which State and it also exercises regulation and control thereover.
has been created by law and which has got certain power to 2. Bodies created for research and other developmental
make laws, to make rules or make bye-laws. works which is otherwise a governmental function but may
………………….. There are two ways of doing it. One way is or may not be a part of the sovereign function.
to use a composite phrase such as ‘the State’, as we have done 3. A private body is allowed to discharge public duty or
in article 7; or, to keep on repeating every time, the Central positive obligation of public nature and furthermore is
Government, the Provincial Government, the State allowed to perform regulatory and controlling functions
Government, the Municipality, the Local Board, the Port and activities which were otherwise the job of the
Trust, or any other authority. It seems to me not only most government.
cumbersome but stupid to keep on repeating this phraseology
every time we have to make a reference to some authority. The rule of ejusdem generis cannot be applied to interpret this
The wisest course is to have this comprehensive phrase and to expression in as much as there is no common feature running
economise in words [5]. through the named bodies [11].
This definition of State under article 12 of the Constitution of The expression “other authorities” also includes
India applies only for the purpose of provisions mentioned instrumentalities [12] or agencies [13], of the Government and
under Part III of the Constitution. So if a body of persons not Government Departments [14]. But every instrumentality of the
coming under the definition but still a writ under article 226 Government is not necessarily a Government Department [15],
may lie against it on non-constitutional grounds or on the The instrumentalities or agencies, even though performing
ground of contravention of any provision of the Constitution some of the functions of the State, cannot be equated with a
outside Part III that means where such body has some public government department and if they have an independent status
duty to perform or where its acts are supported by the State or distinct from the State e.g. government companies and public
Public Officials [6]. undertakings though for the purpose of enforcing fundamental
Under article 12 the word ‘includes’ indicates that this rights, they could be held to be State [16].
definition of the ‘State’ is not confined to a Government
Department and the legislature but extends to any
administrative [7] action which may be either statutory or non- 10
Concise Oxford English Dictionary, 10th Edition.
11
statutory, judicial or quasi-judicial. And those actions can be Rajasthan State Electricity Board v. Mohanlal, AIR 1967 SC 1857(1861-
63): Railway Board v. Observer Publications Private Limited, AIR 1972 SC
said to be the State action [8] in case of violation of 1792.
fundamental rights [9]. Hence in this way the scope of the State 12
R.D. Shetty v. I.A.A.I, AIR 1979 SC 1628(1638): State of Punjab v. Raja
has been widened by interpretation of words mentioned under Ram, AIR 1981 SC 1694.
13
article 12. Som Prakash Rekhi v. Union of India, AIR 1981 SC 212; Tejender Singh v.
B.P.C., AIR 1987 SC 51
14
Bidi Supply Co.v. Union of India, AIR 1956 SC 479.
5 15
Constituent Assembly Debates, Volume. VII 1948 at 610, Quoted in Zee State of Punjab v. Raja Ram, AIR 1981 SC 1694, not a Government
Telefilms Ltd. V. Union of India, AIR 2005 SC 2677 at 2685. Department, Steel Authority of India Ltd. V. Sri. Ambica Mills Ltd. AIR
6
Kartik Chandra Nandi v. W.B.S.I. corpn., AIR1967Cal.231(234). 1998 SC 418, following S.L. Agarwal (Dr.) v. G.M. Hindustan Steel Ltd,
7
Gulam Abbas v. State of U.P., AIR 1981 SC 2198. AIR 1970 SC 1150 and Western Coal Fields Ltd. Special Area
8
R. D. Shetty v. I.A.A.I.,AIR1979 SC 1628 Development Authority, AIR 1982 SC 697.
9 16
Som Prakash Rekhi v. Union of India, AIR 1981 SC 212 Mohd. Hadi Raza v. State of Bihar, (1998) 5 SCC 91.
11
In determining whether a corporation or a Government part of the judiciary [27]. In the words of Justice J.S.Verma,
Company [17] or a private body is an instrumentality or agency Judicial Activism must necessarily mean “the active process
of the State, the following tests would be applicable: [18] of implementation of the rule of law, essential for the
1. Whether the entire share capital is held by the preservation of a functional democracy”.
Government. The judiciary operates as a mechanism for correction and
2. Whether the corporation enjoys monopoly status conferred judicial activism serves as strong trendsetter to correct as far
by the State. as possible, malfunctioning in violation of the Constitutional
3. Whether the Functions of the corporation are mandates and to stimulate the State organs to function in the
governmental functions or functions closely related right direction. Balanced judicial activism is necessary for
thereto. establishing the rule of law in a welfare state [28].
4. If a department of the government has been transferred to In a series of cases like S.P. Gupta v. Union of India [29], The
the corporation. Supreme Court through public interest litigation, has
5. The volume of financial assistance received from the State liberalized the locus standi and inspired the public spirited
[19]
. citizens to invite judicial intervention against abuse of power
6. The quantum of State Control [20]. or misuse of power or inaction of the government. The Apex
7. Whether any statutory duties are imposed upon the Court has come to the rescue a grossly under –paid workers
corporation [21]. [30]
, bonded labour, [31] prisoner, [32] pavement dwellers [33],
8. The character of the corporation may change with respect under-trial detenues, [34] inmates of protection homes, [35]
to its different functions [22]. Victims of Bhopal Gas disaster [36] and many other cases from
time to time.
Any private educational institution cannot become the The Courts through judicial activism are encroaching upon the
instrumentality of the State just because of the reason that it exclusive domain of the other instrumentalities because the
received the recognition or affiliation from the State [23]. ultimate goal of the Court is to render justice. It is the primary
Regarding Judiciary it can be said that while the inclusive duty of the executive to provide a fair and just government. It
definition of the State includes judiciary [24], in some earlier is not for the Courts to function as an extended arm of the
cases, it was observed that a judicial order could not possibly executive [37].
violate fundamental right [25] and no remedy under article to Judicial activism is not just a matter of serial affirmation of
can be enforced on the ground that a judicial order violated a judicial power over other domains and instrumentalities of
fundamental right [26]. State power; it is as much a narrative of evolution of new
constitutional culture of power [38].
Judicial Activism
Judicial activism has no statutory definition. It means the Recent Important Judgements
function of the judiciary representing its active role in In the course of time, the Supreme Court has been expanding
promoting justice. It is the assumption of an active role on the the horizon of the term “other authority” in article 12. A large
number of bodies statutory and non-statutory, have been held
to be ‘authorities’ for the purpose of article 12. Even if the
entire share capital of a company is subs cribbed by the
government, it cannot yet be treated as a government
17
Central Inland Water Corporation v. Brojo Nath Ganguly,AIR 1986 SC department. The company has its own corporate personality
1571,24,69; Bhandari O.P. v. I.T.D.C., AIR 1987 SC 111. distinct from the government. But such a government
18
Central Inland Water Corporation v. Brojo Nath Ganguly,AIR 1986 SC company can still be treated as an authority under article 12
1571,24,69; Bhandari O.P. v. I.T.D.C., AIR 1987 SC 111. Ajay Hasia v. [39]
. Government Companies, such as Bharat Earth Movers
Khalid Mujib Sehravardy, AIR 1981 SC 487 (496); LIC v. Escorts, AIR
1986 SC 1370; Gujarat State Financial Corporation v. Lotus Hotels Pvt.
Ltd., AIR 1987 SC 848; Kalra A.L. v. P & E Corporation, AIR 1984 SC 27
Chaterji, Susanta, “For Public Administration: is judicial activism Really
1361. deterrent to legislative anarchy and executive tyranny?”, The Administrator
19
Manmohan Singh v. Commr. U.T. Chandigarh, AIR 1985 SC 364; Volume XLII, April-June 1997, at 9,11.
Workmen Food Corporation v. Food Corporation of India, AIR 1985 SC 28
Bhattacharjee, G.R. “ Judicial Activism: Its message for administrator”.
670; Ganapati national Middle School v. M. Durai Kannan, AIR 1996 SC The Administrator,”Volume XLII April-June 1997, at 31,32.
29
2803. AIR 1982 SC 149.
20
Manmohan Singh v. Commr. U.T. Chandigarh, AIR 1985 SC 364; 30
People’s Union for Democratic Right v. Union of India, AIR 1982 SC 1473.
31
Workmen Food Corporation v. Food Corporation of India, AIR 1985 SC Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
32
670. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
21 33
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487(496); LIC v. Escorts, AIR Olga Tellis v. Bombay Municipal Corporation, (1985)3 SCC 545.
34
1986 SC 1370; Gujarat State Financial Corporation v. Lotus Hotels Pvt. Hussainara Khatun v. State of Bihar, AIR 1979 SC 1360.
35
Ltd., AIR 1983 SC 848; Kalra A.L. v. P. & E. Corporation AIR 1984 SC Upendra Baxi v. State of U.P., (1983)2 SCC 308; (1986) 4 SCC 106.
36
1361. Union Carbide Corporation v. Union of India, (1991) 4 SCC 584.
22
M.C. Mehta v. Union of India, AIR 1987 SC 1086; LIC v. Escorts, AIR 37
Palkhiwala, Nani, “Role of Judiciary; Government by the Judiciary “.
1986 SC 1370. CMLJ, Vol. 31, October- December 1995 at 193.
23 38
Unnikrishnan J.P. v. State of A.P., AIR 1993 SC 2178. Prof. U. Baxi, Preface to Sathe, S.P., Judicial activism in India;
24
Budhan choudhury v. State of Bihar, AIR 1955 SC 191. Transgressing Borders and Enforcing limits, Oxford University Press, 2005
25
Amirabbas Abbasi Sehabzada Saiyed Muhammed v. State of M.B. AIR 1960 edition,at xvi
39
SC Hindustan Steel Works Construction Ltd. V. State of Kerala, AIR 1997 SC
26
Ujjam Bai v. State of U.P. AIR 1962 SC 1621; Antulay, A.R. v. Nayak, R.S. 2275; Steel Authority of India Ltd. V. Sri. Ambica Mills Ltd., AIR 1998 SC
AIR 1988 SC 1531. 418.
12
Ltd., Indian Telephone Industries Ltd., in which the interests of the individual that the State came into existence.
government holds 51% share capital, and which are subject to The State, being a sovereign authority, may any time turn into
government conrol have been held to be “other authorities” tyrannical way and the basic rights of the individual may be
under article 12 of the Constitution of India [40]. endangered and under this circumstances the fundamental
In U.P. State Coop. Land Development Bank Ltd. V. Chandra rights are the only weapon in the hands of the individual
Bhan Dubey [41], the Court held that, U.P. State Cooperative through which they can seek justice against arbitrariness of the
land development Bank Ltd. Was a cooperative society but it State. Therefore, it is suggested that more and more private
was under the control of the State Government and was an institutions and other bodies should be included within the
extended arm of the government. So it was an instrumentality sweep of article 12. Lastly, I would like to conclude that a
of the State. In Biman Kishore Bose v. United India Insurance number of judicial decisions by the Supreme Court on
Co. Ltd. [42] The Court was of the opinion that a company fundamental rights have established that the Court have
enjoying the monopoly of carrying on a business under an Act looked at the Constitution as a living document and have gone
of Legislature is an authority under article 12. Mysore paper beyond the literal interpretation of words occurring in the
mills, a government company was held to be an specific articles on fundamental rights. The Constitution is
instrumentality of the State Government and therefore decided drafted not only to take care of the present but also to protect
as an authority under article 12 [43]. the future of a nation.
The expansive interpretation of the expression “other
authorities” in article 12 is furnished by the recent decision of References
the Supreme Court in Pradeep Kumar Biswas v. Indian 1. All India Reporter Constituent Assembly Debates Supreme
Institute of Chemical Biology [44]. In this case The Supreme Court Cases.
Court has overruled Sabhajit Tewary [45] and held that the 2. Austin, Granville, The Indian Constitution: Cornerstone of
Council of Scientific and Industrial Research is an authority a Nation, London, Oxford University Press, 1966.
under article 12. 3. Rao Shiva B. The framing of India’s Constitution, Volume
In Zee Telefilms Ltd. V. Union of India [46], a five-judges IV, The Indian Institute of Public Administration, New
bench of the Supreme Court examined the question whether Delhi, 1968.
BCCI comes under the definition of the State or not. It was 4. Banerjee DN. Our Fundamental Rights their nature and
contended before the Court that the BCCI should be treated as extent as Judicially determined, World Press Pvt. Ltd,
“State” because it controlled and regulated cricketers right 1960.
guaranted under article 19 (1) (g). Rejecting the contention 5. Basu DD. Constitutional Law of India, 7th edition, Prentice
outright, the Court held that this right could be claimed only Hall of India Pvt. Ltd., New Delhi, 1998.
against the State. Article 19(1) (g) applied only when it was 6. Black Shield, Tony and Williams, George, Australian
established that the regulating authority in question fell within Constitutional Law and Theory, 4th edn, 2006.
the scope of ‘State’ under article 12. 7. David Easton, The Political system, Alfred A. Knopf,
In Punjab Water Supply and Sewerage Board v. Ranjodh 1953.
Singh [47] the Court held that the Punjab Water Supply and 8. Dicey AV. Introduction to the Study of the Law of
Sewerage Board was a ‘State’ as per the definition given Constitution, Universal Law Publishing Co. Pvt. Ltd. 10 th
under the Constitution of India. The statutory bodies are edn, 2000.
bound to apply the rules of recruitment mentioned under 9. Fitzgerald PJ. Salmond on Jurisprudence, 12th edition,
statutory rules. Therefore this body is bound to follow the Universal Law Publishing Co. Pvt. Ltd. Indian Economy,
constitutional scheme of equality. Reprint, 2004.
In the year 2014 the Supreme Court observed in K.K. Saxena 10. Maxmuller F. Manusmriti, Sacred Book of East Series.
v. International Commission on Irrigation and Drainage Reprint. 1967, XXV.
(ICID) case that it was not discharging any public duty. ICID 11. Poddar Mita. Definition of the State and The enforcement
is a private body which has no State funding. Functions are of Fundamental Rights Under the Constitution of India,
voluntary in nature and no statutory duty was imposed on that Ph. D. Thesis, University of North Bengal, 2008.
body. Hence it held not to be the ‘State’ or ‘other authority’ as 12. Pylee MV. An Introduction to the Constitution of India,
per article 12 of the Constitution. Second Revised Edition, Vikas Publishing House Pvt.
Ltd., New Delhi, 1997, 1998.
Conclusion 13. Seervai HM. Constitutional Law of India, Volume I, 4 th
Thus, the State cannot exist without individuals as the king edn. NM. Tripathi Pvt. Ltd. Bombay, 1991.
cannot rule without his subjects. It is for the protection of the
40
M. kumar v. Earth Movers Ltd., AIR 1999 Kant 343.
41
AIR 1999 SC 753.
42
(2001) 6 SCC 477.
43
Mysore Paper Mills Ltd. V. The Mysore Paper Mills Officer’s Association,
AIR 2002 SC 609.
44
(2002) 5 SCC 111.
45
AIR 1975 SC 1329.
46
(2005) 4 SCC 649
47
AIR 2007 SC 1082
13

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Volume 4; Issue 3; May 2018; Page No. 91-96
Article 13 and Pro Tanto Supremacy of the constitution of India

Adithya Anil Variath
Student of Law, University of Mumbai, School of Law, Mumbai, India
Abstract
Article 13 is one of the most fasciculus articles which are comprised in the Part III of the Constitution headed “Fundamental
Rights”. Doubtless with the adoption of a written constitution and incorporation of fundamental rights therein, the validity of all
laws have to be tested on the touchstone of the Constitution, the framers of the Constitution, nevertheless, unlike the American
Constitution, did not wish to leave it to the judiciary to assume for itself that power. Accordingly, the justiciability of the
fundamental rights has been explicitly provided in the provisions of Article 13 of the Constitution. “The Inclusion of Articles 13(1)
and 13(2) in the Constitution”, according to Kania, CJ., appears to be a matter of abundant caution. Even in their absence, if any of
the fundamental rights was infringed by any legislative enactment, the court has always the power to declare the enactment to the
extend it transgresses the limit, invalid. Article 13 deals with both the post-constitutional and pre-constitutional laws and further
defines one of the most important concepts in Constitutional Jurisprudence, “Law” and “Laws in force”. The significance of
Article 13 lies in the fact that the doctrine of judicial review inheres in this article and there can be no doubt as to the
indispensability of the very control of the constitutionality of laws.
Keywords: constitution of India, article 13, judicial review, severability, fundamental rights
Introduction constitution was void. The particular phraseology of the US

“The greatest of all the means for ensuring the stability of Constitution confirmed and strengthened the principle that a
Constitutions – but one which is nowadays neglected – is the law repugnant to the Constitution was void. The Judiciary is
education of the citizens in the spirit of their Constitution. thus to act as the guardian of the fundamental rights
There is no profit in the best of laws, even when they are guaranteed by the Constitution and in exercising that function,
sanctioned by the general civic consent, if the citizens it has the power to set aside an Act of the Legislature of it is in
themselves have not been attuned by force of habit and the violation of those rights [2].
influence of teaching, to the right constitutional temper. The But as observed by the Supreme Court in the case of A.K.
mere existence of the Constitution does not ensure Gopalan v. Union of India [3] “The inclusion of Article 13(1)
constitutionalism, constitutional morality or a constitutional and 13(2) in the Constitution appears to be a matter of
culture. It is the political maturity and traditions of a people abundant caution. Even in their absence, if any of the
that impart to a Constitution and help develop Constitutional fundamental rights was infringed by any legislative
culture. It is in this depth of this ocean that the Constitution enactment, the Court has always the power to declare the
finds its meaning (Aristotle) enactment to the extend it transgresses the limits, invalid. The
Supremacy of the Constitution in a democratic legal order existence of Article 13(1) and Article 13(2) in the Constitution
does not result from an abstract legal postulate, but rather therefore is not material for the decision of the question what
from the importance the Constitution has as a political act fundamental right is given and to what extend it is permitted
with corresponding democratic contents and determined class to be abridged by the Constitution itself.” The reason is that
substance, which precisely make it the most important act in a the very adoption of a written Constitution with a Bill of
State. In this way, the Constitution represents the act, by Rights and Judicial Review implies that the Courts shall have
means which, as it has been observed in the theory, politics is power to strike down a law which contravenes a fundamental
transferred into law. In this sense, the laws are nothing but the right or some other limitation imposed by the Constitution [4].
instrument of realization and application of the Constitution The present paper is an attempt to interpret one of the most
and by the very fact, also of the politics which the latter interpreted articles of the Constitution of India, to define the
expresses. The US Constitution contains no express provision prospect and retrospect of Article 13 and to analyze how he
that a law contravening the Constitution is pro tanto void. But Supreme Court acts as the “sentinel on the qui vive” in
the position was established by Marshall CJ in Marbury v. relation to fundamental rights.
Madison [1]. He said that those who framed written
constitution contemplated them on forming the fundamental International Perspective and Other Constitution
and paramount law of the nation and the theory of every such “We are under a Constitution, but the Constitution is what the
government must be that an act of legislature repugnant to the Judges say it is.”
91
Governor Charles Evan Hughes provision of the Chapter shall prevail.”

In Trop v. Dulles [5] Earl Warren CJ American Supreme Court The principle of judicial review on the ground of
said, “We are oath bound to defend the Constitution. The unconstitutionality is now firmly established in Eire [7] The
delegation requires that congressional enactments be judged power to declare invalid any repugnant law under Article
by the standards of the Constitution. The judiciary has the 15(4) of the Ireland Constitution is vested in the High Court
duty of implementing the constitutional safeguards that protect under Article 34(2) [8].
individual rights. When the Government acts to take away the Article 1(3) of the West German Constitution says, “The
fundamental right of the citizen, the safeguards of the following basic rights shall be binding as directly valid law on
Constitution should be examined with special diligence. The legislation, administration and judiciary.” Article 19(2) says
provisions of the Constitution are not timeworn adages or that in no case may the essence of a basic right be infringed.
hollow shibboleths. They are living principles that authorize
and limit governmental powers in our nation. They are rules of Article 13
the Government. When the constitutionality of an act of Laws inconsistent with or in derogation of the fundamental
Congress is challenged in the court, we must apply these rules. rights;
If we do not, the words of the Constitution become little more 1. All laws in force in the territory of India immediately
than good advice. When it appears that an Act of the before the commencement of this Constitution, in so far as
Constitution become little more than good advice. When it they are inconsistent with the provisions of this Part, shall,
appears that an Act of the Congress conflicts with one of those to the extent of such inconsistency, be void;
provisions, we have no choice but to enforce the paramount 2. The State shall not make any law which takes away or
commands of the Constitution. We are sworn to do no less. abridges the rights conferred by this Part and any law
We cannot push back the limits of the Constitution merely to made in contravention of this clause shall, to the extent of
accommodate challenged legislation. We must apply those the contravention, be void;
limits as the Constitution prescribes them, bearing in mind 3. In this article, unless the context otherwise requires law
both the broad scope of legislative discretion and the ultimate includes any Ordinance, order, bye law, rule, regulation,
responsibility of Constitutional adjudication.” notification, custom or usages having in the territory of
Brown, Chief Justice of Nigeria, interpreting the effect of India the force of law; laws in force includes laws passed
Article 13 said, “The point that I wish to make is that by or made by Legislature or other competent authority in the
Article 13 of the Constitution, all laws which are inconsistent territory of India before the commencement of this
with the Part III of the Constitution of India are to declared to Constitution and not previously repealed, notwithstanding
be void by the Constitution itself. The task of the Courts is to that any such law or any part thereof may not be then in
determine whether the law is inconsistent. Having found that operation either at all or in particular areas;
it is nothing more in strictness remains to be done, because the 4. Nothing in this article shall apply to any amendment of
Constitution has already declared the law to be void and the this Constitution made under Article 368 Right of Equality
court’s declaration that the law is void merely reaffirms what [9]
.
the Constitution has already declared [6].
Article 8(1) of the Constitution of Pakistan says, “Any law, or Article 13 clears the doubt as to the indispensability of the
any custom or usage having the force of law, in so far as it is very control of the constitutionality of laws. It acts as a
inconsistent with the rights conferred by the Chapter, shall to protection of our reservations which we have granted to
the extent of such inconsistency, be void. The State shall not ourselves with the enactment of Constitution. Article 13 has
make any law which takes away or abridges the rights so played a pivotal role to protect the basic structure of the
conferred and any law made in the contravention of the clause, Constitution by granting a legal protection to individual rights
shall to the extent of such contravention be void.” and withholding the principle of “lex superior” of the
Article 36 of the Constitution of Switzerland says, “Any Constitution. Article 13 has been a crucial instrument to
limitation of a fundamental right must be justified by public protect and preserve Constitutionalism in India.
interest or serve for the protection of fundamental rights of
other person. Limitation of the fundamental right must be Analyzing Article 13
proportionate to the goals pursued.” 1. The Constitution of India has no retrospective effect
Article 4 of the Singapore Constitution says, “This The legislative competence of an enactment is to be
Constitution is the Supreme law of the Republic of Singapore determined with reference to the constitutional provisions as
and any law enacted by the Legislature after the they stood at the time when the Act was made, expect where
commencement of this Constitution, which is inconsistent an amendment of the Constitution is given retrospective effect
with the Constitution shall, to the extend be void.” [10]
. A person may be prosecuted and punished under a pre-
Article 98 of the Japan Constitution states that the Constitutional law even after the commencement of the
Constitution of Japan is the Supreme law of the State and no Constitution, for an offence committed before the Constitution
public law or ordinance contrary to the provisions of the came into force, even though the law which made the offence
Constitution shall have no legal force or validity. punishable is inconsistent with Part III of the Constitution [11].
Article 25(a) of the Constitution of Sri Lanka explains the The procedure for such prosecution after the commencement
provision of any law inconsistent with this chapter to be of the Constitution must not however be repugnant to the
repealed, “In this event of any inconsistency between the Constitution. Where though the statute is a pre-constitution
provisions of any law and this provisions of this chapter, the law, it is sought to be enforced after the commencement of the
92
Constitution, the validity of the executive action can be in clause (2) makes the State as much incompetent to make
challenged without involving a challenge as to the validity of law taking away or abridging the fundamental rights as it
the pre-Constitution statute. The Constitution has no would be where law is made against the distribution of powers
retrospective effect [12]. contained in the Seventh Schedule to the Constitution between
All inconsistent existing laws, therefore, becomes void only Parliament and the Legislature of a State. Further, Article
from the commencement of Constitution. Acts done before 13(2) provides that the law shall be void to the extent of the
such commencement in pursuance or in contravention to the contravention. Now contravention in the context takes place
provision of any law which after the commencement becomes only once which takes away or abridges the fundamental
void because of inconsistency with the fundamental rights are rights. Therefore, where there is a question of a post-
not affected. The inconsistent law is not wiped out in as much constitution law, there is a prohibition against the state from
as the past acts are concerned. taking away rights under Part III and there is a further
provision that if the prohibition is contravened the law shall be
2. Pre-Constitution laws inconsistent with the Constitution void to the extent of the contravention. In view of this clear
In Saghir Ahmed v. State of UP [13] Court held that Article provision, it must be held that unlike a law covered by Article
13(1) by reason of its language cannot be read as having 13(1) which was valid when made, the law made in
obliterated the entire operation of the inconsistent law or contravention of the prohibition contained in Article 13(2) is a
having wiped it out altogether from the statute book. Such law still born law either wholly or partially depending upon the
existed for all the past transactions and for the enforcement of extent of the contravention [19]
rights and liabilities before the date of the Constitution as was 5. Constitutional limitation in Indian Constitution can be
held in the case of Keshava Madhava Menon v. State of classified as (1) Express and Implied [20], and (2) Direct
Bombay [14]. and Indirect [21].
3. Doctrine of Eclipse 6. Grounds of unconstitutionality

If the Constitution is amended subsequently, so as to remove A law may be made unconstitutional on the following
the repugnancy, the impugned law becomes free from all grounds,
blemishes from the date when the amendment of the 1. Contravention of any fundamental right, specified in Part
Constitution takes place [15]. The doctrine of eclipse was III of the Constitution [22].
formulated by Das CJ., in the case of Bhikaji v. State of 2. Legislating on a subject which is not assigned to the
Madhya Pradesh. The doctrine of eclipse can be invoked in relevant Legislature by the distribution of powers made by
the case of a pre-Constitution law which was valid when it had the Seventh Schedule read with the connected Articles [23]
been enacted, but the shadow was cast by a supervening event, 3. Contravention of any of the mandatory provisions of the
namely, inconsistency with the Constitution which came into Constitution which impose limitations upon the powers of
existence subsequently; if and when the shadow is removed, a Legislature, e.g., Article 301 [24].
the pre-Constitution becomes free from all infirmity [16]. H.M. 4. In the case of a State law, it will be invalid in so far as it
Seervai in the Constitutional Law of India says that the seeks to operate beyond the boundaries of the State [25].
doctrine applies to both the pre-constitutional and post 5. That the legislature concerned has abdicated its essential
constitutional law relying upon the judgment of Supreme legislative function as assigned to it by the Constitution or
Court in the case of State of Gujarat v. Ambica Mills [17]. has made an excessive delegation of that power to some
other body [26].
4. Post- Constitutional laws which are inconsistent shall be
void ab initio In absence of the foregoing conditions, the Court will not
Constitution is the will of the people whereas statutory laws interfere with the wisdom of the Legislature or matters
are the creation of legislators who are the elected involving Government policy or legislative policy, e.g., in the
representatives of the people. Where the will of the legislature matter of classification under Article 14, or on the ground of
- declared in the statutes - should in opposition to that of the malice, or intrude upon non- justiciable matters. In effecting
people - declared in the Constitution the - will of the people the constitutionality of laws, the constitutional court does not
must prevail [18]. evaluate the opportunity of laws, and, therefore, there exists
In the case of Mahendra v. State of U.P., the Supreme Court no possibility of evaluating a policy which the representative
explained the difference of clause (2) of Article 13 with clause body determines as the supreme organ of authority.
(1) as, “Article 13(2) begins with an injunction to the State not Consequently the court is not transformed nor can it be
not to make a law which takes away or abridges the rights transformed into the organ which directs policy, though the
conferred by Part III. There is thus a constitutional prohibition decision of Constitutional Courts can be more or less of
to the State against making laws taking away or abridging political significance [27].
fundamental rights. The legislative power to Parliament and In absence of The foregoing conditions , The Court will not
the legislatures of States under Article 245 is subject to the interfere with the wisdom with the wisdom of the Legislature
other provisions of the Constitution and therefore subject to or matters involving Government policy or legislative policy
article 13(2), which specifically prohibits the State from in the matter of classifications udrer Article or so The ground
making any law taking away or abridging the fundamental of malice or interude upone non justciab
rights. Therefore, it seems to us that the prohibition contained In Sivamurthy v. State of Andhra Pradesh [28], court declared
93
that “broadly a policy decision is subject to judicial review on History of Legislation would be admissible for ascertaining
the following grounds:- the legislative intent when the question is one of severability.
a. If it is unconstitutional, But Statement of Objects and Reasons is not admissible as it is
b. If it is de hors the provisions of the Act and regulation, not part of history of legislation. The question of severability
c. If the delegate has acted beyond its powers of delegation, has to be judged on the intention of legislature as expressed in
d. If the executive policy is contrary to statutory or larger the Bill passed. But the statement of the mover of the Bill is
policy.” not admissible, just as a speech made on the floor of the
Power to frame policy by executive or legislative decision House is not admissible. The test is not of textual severability,
includes the power to withdraw the same and judicial review but of substantial severability, which permits even
is excluded unless the same is affected by mala fide exercise modification of the text in order to achieve severance, but, this
of power or the said decision is an abuse of power [29], can be done only when the court is satisfied that it is effecting
no change in the substantial purpose and effect of the
7. The Doctrine of Severability impugned provision [35].
In the case of Mahendra v. State of Uttar Pradesh [30]. the It was in the case of Re. Hindu Women’s Right to Property
Supreme Court held that, “The words – to the extent of Act, the Federal Court considered the question of severability
[36]
inconsistency or contravention- makes it clear that when some .
of the provisions of a statute become unconstitutional on
account of inconsistency with a fundamental right, only the 8. Law
repugnant provisions of the law on question shall be treated by The definition of Law contained under Article 13(3) (a) is,
the courts as void, and not the whole statute, subject of course, thus, wider than the ordinary connotation of law, which refers
to the doctrine of severability.” The doctrine of severability to enacted law or legislation. It includes subordinate
means that when some provisions of a statute offends against legislation made in exercise of powers conferred by statute [37].
a constitutional limitation, but that provision is severable from It was held that Constitution of India is not a statute and it is
the rest of the statute, only that offending provision will be the foundation of all laws. Expression “law” ordinarily does
declared void by the Court and not the entire statute. not include the Constitution. Expression “law” as used in
The American doctrine of severability is explained by Dr. Article 13 would be law other than constitution, in other
C.D. Jha in his book Judicial Review of Legislative Acts as, words, law enacted in the exercise of legislative powers [38].
“If a statute is constitutional in part and unconstitutional in
part and the two are separable and independent, the 24th Constitution (Amendment) Act, 1971
constitutional part will be given effect, otherwise the whole Clause 4 of Article 13 was introduced in the Constitution by
statute will be declared invalid [31]. In AG for Albertas v. AG the Constitution (24th Amendment) Act, 1971, with effect
for Canada, it was observed that; “The real question is, from 5-11-71, to override the decision of Supreme Court in
whether what remains is so inextricably bound up with the the case of Golak Nath v. State of Punjab [39]. that, a
part declared invalid that what remains cannot independently Constitution Amendment Act, passed according to Article
survive, or as it has sometimes been put, whether on a fair 368, is a ‘law’ within the meaning of Article 13 and would,
review of the whole matter, it can be assumed that the accordingly, be void if it contravenes a fundamental right. The
legislature would have enacted what survives, without question of whether a Constitution Amendment Act is a law
enacting the part is ultra vires at all [32]. was answered in affirmative by the Supreme Court in the case
The Three principles governing severability were considered of A.K.Gopalan v. State of Madras [40].
by the Supreme Court in R.M.D. Chamarbaugwalla v. The The validity of this Amendment Act was upheld by the
Union of India [33]. Supreme Court in the case of Keshavananda Bharti v. State of
1. In determining whether the valid parts of, statute are Kerala [41]. the apex Court observed that, “The basic features
separable from the invalid parts thereof, it is the intention of the Constitution could not be amended by exercise of the
of the legislature that is the determining factor. The test to power of amendments under Article 368.”
be applied is whether the legislature would have enacted
the valid part if it had known that the rest of the statute Judicial Review
was invalid. Judicial review is not a usurped power, but a part of the grand
2. If the valid and invalid provisions are so inextricably design to ensure supremacy of the Constitution. The principle
mixed up that they cannot be separated from one another, of equilibrium required that judges be more than puppets of a
then the invalidity of a portion must result in the invalidity legislature. In the constitutional scheme of things, it was
of the Act in its entirety. On the other hand if they are "so imperative that some institutions exist to protect the fabric of
distinct and separate that after striking out what is invalid, the Constitution, to ensure that a legislature and the executive
what remains is in itself a complete code independent of would not convince together, to break the equilibrium of
the rest then it will be upheld notwithstanding that the rest powers.
has become unenforceable. (John P. Roche, Courts and Constitution, 1966, p.22)
3. Even when the provisions which are valid are distinct and In Black Law Dictionary (7th Edition 1999) it is stated thus:
separate from those which are invalid, if they all form part a. A court’s power to review the action of other branches or
of a single scheme which is intended to be operative as a levels of Government especially the Court’s power to
whole, then also the invalidity of a part will result in the immediate legislative and executive actions as being
failure of the whole [34]. unconstitutional,
94
b. The Constitutional doctrine providing for this power, is a basic feature of the Constitution of India [50]. Of course, in
c. A court’s review of a lower court’s or an administration determining the constitutional validity of a statute, the Court
body’s factual or legal findings [42] should so interpret it as to confirm to the dynamic changes in
the social background to which the legislation relates [51].
Judicial Review is a great weapon in the hands of the judges. Dr. C.D. Jha in his book Judicial Review of Legislative Acts
It comprises the power of a court to hold unconstitutional and [52]
has said that, “In the Constitution founded on popular
unenforceable any law or order based upon such law or any sovereignty, the power of judicial review is inherent and
action by a public authority which is inconsistent or in conflict natural. It is a matter of considerable importance to consider
with the basic law of the land [43] Judicial review means whether in India, judicial review could be completely
overseeing by the judiciary of the exercise of power by the annihilated or substantially curbed by Constitutional
other coordinate organs of the government with a view to amendments. A right which is natural and inherent cannot be
ensure that they remain confined to the limits drawn upon destroyed by Constitutional amendments. There are implied
their powers by the Constitution. It is an exercise of judicial limitations on such amending power by the Constitution of
power of the State and consequently the function of judiciary India. Exercise of such wide amending powers destroys the
alone to interpret the written law. Thus, interpretation is at the natural rights of citizens. It appears apparently clear that the
heart of judicial review and judicial review so to say, is power to annihilate the right to judicial review is beyond the
essential a matter of interpretation. jurisdiction of Indian Parliament.”
Judicial review in India comprises three aspects Conclusion

a. Judicial review of legislative action, Article 13 is not a dogmatic rule allergic to logic and reason; it
b. Judicial review of judicial action, is flexible principle of law operating in the province of
c. Judicial review of administrative action [44]. precedents providing room to collaborate with the demands of
changing times dictated by social needs state policy and
Judicial review is believed to be an essential power for the judicial conscience. In India, during the span of 70 years since
courts of a free India, and an India with a federal constitution. the commencement of the Constitution, the Supreme Court
The Constituent Assembly’s aim, when framing the judicial has overruled many earlier decisions on the basis of
provisions, was to establish clearly the foundations of the constitutional dynamism and invalidated by many legislative
Judiciary’s review power and its duty to uphold the acts and executive orders on the basis of constitutional
Constitution. The Constitution was criticized in the validity. Continuity and certainty are essential ingredients of
Constituent Assembly by some members for bring a potential rule of law and it is only on the basis of the provisions of
lawyer’s paradise [45]. Dr. B.R. Ambedkar defended the Article 13 that the judiciary keeps the balance between the
provision of judicial review as absolutely necessary and need of certainty and continuity and desirability of growth and
rejected the above criticism. According to him, the provision development of law. The judiciary which is designated as the
of judicial review and particularly for the writ jurisdiction that guardian of Constitution should not be much hesitated to
gave quick relief against the abridgement of fundamental abandon an untenable position. The Constitution which we
rights constituted the heart of the Constitution, the very soul of have given to ourselves is the fundamental law of the land.
it [46]. The judiciary, under the Constitution, is designed to be an
The role of Court in this regard was explained by Justice intermediary body between people on one side and the
Robert Jackson as, “We are not final because we are infallible, executive on the other. It belongs to the judiciary to ascertain
but we are infallible only because we are final [47]. Unlike the the meaning of the Constitutional provisions and the laws
United States, judicial review in India was provided for enacted by the legislature. Ambedkar was perhaps the greatest
expressly in the Constitution. Granville Austin in his book apostle in the Assembly of what he described as ‘one single
“The Indian Constitution – Cornerstone of a Nation” said that; integrated Judiciary having jurisdiction and providing
“The Members of the Constituent Assembly brought to the remedies in all cases arising under the constitutional law, the
framing of judicial provision of the Constitution, an idealism civil law, or the criminal law’. For him, such a judicial system,
equaled only by that shown towards Fundamental Rights. plus uniformity of law, were ‘essential to maintain the unity of
Indeed, the Judiciary was seen as an extension of the Rights, the country [53]
for, it was the court that would give the rights force. The In order to keep the executive/legislature within the limits
judiciary was to be the arm of social revolution, upholding the assigned to their authority under the Constitution the
equality which Indians had longed for during Colonial days, interpretation of laws is the proper and peculiar province of
but had not gained – not simply because the regime was the judiciary [54]. The two terms used in Article 13 clauses (1)
colonial and per force repressive, but largely because the and (2) – ‘inconsistency’ and ‘contravention’ has played an
British had feared that social change would endanger their rule impactful role to determine the true nature of the legislation.
[48]
. Any law which [55] is illegal and offending the roots of the
Judicial review in its broadest context is the self-assured right Constitution cannot be allowed to be perpetuated even by a
of the court to pass upon the constitutionality of legislative constitutional amend [56] ment and neither the Parliament nor
acts. Judicial review of the constitutionality of statues is a State Legislature can make such law. Article 13 is often said
peculiarly American phenomenon which has been copied with to be the touchstone by which validity of oppressive
varying degrees of success by other nations also [49]. It is now legislations is checked. Popularly known as the heartbeat of
firmly established in India that the concept of judicial review the Constitution, Article 13 has played a varied and
95
fundamental role in reshaping the constitutional jurisprudence 42. AIR 1950 SC 27

and legal theory. 43. AIR 1973 SC 1461
44. 7th Edition, 1999
References 45. R. v. Secretary of State for the Environment exp.
1. Durga Das Basu, Commentary on the Constitution of Nottinghamshire County Council, (1989) AC 240
India, 9th Edition, p. 962 46. L. Chandra Kumar v. Union of India , AIR 1997 SC 3616
2. Gopalan AKK. v. State of Madras, AIR 1950 SC 27 47. The Framing of India’s Constitution – A Study
3. 1 Cranch 137: 2 L Ed 60, 1803. 48. CAD Volume VII pp. 700,953
4. Chintamanrao V. State of Madras SCR 759 (765). 1950; 49. American Constitutional Law-Powers and liberties-
150-51 CC 74 (76). Chapter I, Judicial Review and Constitutional Structures,
5. Basu’s DD. tagore Law Lectures on Limited Government 3.
and Judicial Review 50. 9th Impression, 2005, p. 164-165
6. 356 US 86, 1957. 51. Martin Shapire. The Supreme Court and Administration
7. NRNLR 53 Thomas M. Frank, Comparative Agencies, 1968, 22.
Constitutional Process, in 52. Bommai SR. Union of India, AIR SC 1918 (Paragraphs,
8. Dr. C.D. Jha, Judicial Review of Legislative Acts, 1994, 135-136.
LexisNexis, 2nd Edition, 2009,313. 53. State of Karnataka v. Appu, SCC Cr. 1994-1762.
9. King VAG. IR 233; M v. An Bord; Mc Gee v. A.G.,LR 54. 2nd Edition 2009, 171.
284, 1974-1975. 55. CAD VII, 1, 37.
10. Mulloy V. Minister IR 88, 1975. 56. Supreme Court Advocates on Record Association v.
11. Constitution of India Union of India, AIR 1994 SC 268.
12. Mahendra V. State of Uttar Pradesh, AIR 1963 SC, 1019.
13. Keshavan V. State of Bombay SCR 228, 1951.
14. Bhikaji V. State of Madhya Pradesh (1955) 2 SCR 589
15. AIR 1954 SC 728
16. AIR 1951 SC 12 8
17. Bhikaji V. State of MP (1955) 2 SCR 589 (599)
18. Deep Chand v. State of UP., AIR 1959 SC 649
19. AIR 1974 SC 1300
20. Supreme Court Advocates on Record Association v.
Union of India, AIR 1994 SC 268
21. AIR 1963 SC 1019 (1029-30) CB
22. Article 245
23. Specifically provided in the Chapter of Fundamental
Rights
24. Ref. Under Article 143, AIR 1965 SC 123 (145)
25. State of Bombay v. Education Society. (1955) 1 SCR 568
26. Atibari Tea Co. v. State of Assam, AIR 1961 SC 232
27. State of Bombay v. Chamarbaughwala, AIR 1957 SC 699
28. Hamdard Dawakhana v. Union of India, AIR 1960 SC
544 (568)
29. Kaul V. Union of India, 4 SCC 73, 1995.
30. 13 SCC 730, 2008.
31. Bajaj Hindustan Ltd. v. Sri Shadi Lal Enterprises Ltd., 1
SCC 640, 2011.
32. Supp. 1 SCR 912, 1963.
33. Dr. Jha CD. Judicial Review of Legislative Acts,
LexisNexis, 2nd Edition, 2009, 427.
34. AC 503, 1947.
35. In determining the legislative intent on the question of
separability, it will be legitimate to take into account the
history of the legislation, its object, the title and the
preamble to it.
36. Corporation of Calcutta v. Calcutta Tramways (AIR 1964
SC 1279)
37. Jailal V. Delhi Administration, AIR 1962 SC 1781
38. AIR 1941 FC 72, 1941 MWN 556
39. Bidi Supply Co. v. Union of India, (1956) SCR 267 (277)
40. Nayak RS, Antulay AR. AIR 1984 SC 684
41. AIR 1967 SC 1643
96
1
ANNEXURE II
1. EQUALITY RIGHTS (ARTICLES 14 – 18)
1.1 Article 14 of the Constitution of India reads as under:
“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”
1.2 The said Article is clearly in two parts – while it commands the State not to deny
to any person ‘equality before law’, it also commands the State not to deny the
‘equal protection of the laws’. Equality before law prohibits discrimination. It is a
negative concept. The concept of ‘equal protection of the laws’ requires the State
to give special treatment to persons in different situations in order to establish
equality amongst all. It is positive in character. Therefore, the necessary
corollary to this would be that equals would be treated equally, whilst un-equals
would have to be treated unequally
Article 15 secures the citizens from every sort of discrimination by the State, on the
grounds of religion, race, caste, sex or place of birth or any of them. However,
this Article does not prevent the State from making any special provisions for
women or children. Further, it also allows the State to extend special provisions
for socially and economically backward classes for their advancement. It applies
to the Scheduled Castes (SC) and Scheduled Tribes (ST) as well.
Article 16 assures equality of opportunity in matters of public employment and

prevents the State from any sort of discrimination on the grounds of religion,
race, caste, sex, descent, place of birth, residence or any of them. This Article
also provides the autonomy to the State to grant special provisions for the
backward classes, under-represented States, SC & ST for posts under the State.
Local candidates may also be given preference is certain posts. Reservation of
posts for people of a certain religion or denomination in a religious or
denominational institution will not be deemed illegal.
1.3 Articles 14, 15 and 16 form part of a scheme of the Constitutional Right to
Equality. Article 15 and 16 are incidents of guarantees of Equality, and give effect
to Article 14. However, initially, Articles 15(4) and 16(4) were considered
exceptions to Articles 15(1) and 16(1).
1.4 The Hon’ble Supreme Court, in G.M. Southern Railways v. Rangachari, AIR
1962 SC 36 held Article 15(4) of the Constitution of India to be an exception to
Article 15(1). The relevant portion is reproduced hereunder:
“Article 15(4) which provides, inter alia, for an exception to the

prohibition of discrimination on grounds specified in Article 15(1) lays
down that nothing contained in the said Article shall prevent the State
2
from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes”
1.5 It was further held that Article 16(4) is an exception to Article 16(1):
“I have already said that it is implicit in the Article that reservation
cannot be of all appointments or even of a majority of them, for that
would completely destroy the fundamental right enshrined in Article
16(1) to which Article 16(4) is in the nature of a proviso or an exception or
at any rate make it practically illusory.”
1.6 In M.R. Balaji v. State of Mysore, AIR 1963 SC 649, this view was followed, and
it was held that:
“Thus, there is no doubt that Article 15(4) has to be read as a proviso or

an exception to Articles 15(1) and 29(2).”
1.7 This view, that Articles 15(4) and 16(4) were exceptions to Articles 15(1) and
16(1), was again reiterated in Triloki Nath v. State of Jammu and Kashmir, AIR
1969 SC 1, and in State of A.P. v. U.S.V. Balram, (1972) 1 SCC 660.
1.8 The majority of a 7-Judge Bench of the Hon’ble Supreme Court, in State of
Kerala v. N.M. Thomas, (1976) 2 SCC 310, introduced a change in the concept of
equality. It held that Articles 14, 15, and 16 are all equality rights, and that the
scheme of equality sought to achieve real equality. It was held that Articles 15(4)
and Article 16(4) are not exceptions to Articles 15(1) and 16(1) respectively. The
relevant portions of the majority judgments are reproduced hereunder:
Ray, C.J.
37. Article 16(4) clarifies and explains that classification on the basis of
backwardness does not fall within Article 16(2) and is legitimate for the
purposes of Article 16(1). If preference shall be given to a particular
under-represented community other than a backward class or under-
represented State in an all-India service such a rule will contravene
Article 16(2). A similar rule giving preference to an under-represented
backward community is valid and will not contravene Articles 14, 16(1)
and 16(2). Article 16(4) removes any doubt in this respect.
Mathew, J
78. I agree that Article 16(4) is capable of being interpreted as an

exception to Article 16(1) if the equality of opportunity visualized in
Article 16(1) is a sterile one, geared to the concept of numerical equality
which takes no account of the social, economic, educational background
of the members of Scheduled Castes and scheduled tribes. If equality of
opportunity guaranteed under Article 16(1) means effective material
equality, then Article 16(4) is not an exception to Article 16(1). It is only
an emphatic way of putting the extent to which equality of opportunity
could be carried viz., even up to the point of making reservation.
Krishna Iyer, J
3
“136. The next hurdle in the appellant’s path relates to Article 16(4). To
my mind, this sub-article serves not as an exception but as an emphatic
statement, one mode of reconciling the claims of backward people and
the opportunity for free competition the forward sections are ordinarily
entitled to…
Fazal Ali, J
184. … Clause (4) of Article 16 of the Constitution cannot be read in

isolation but has to be read as part and parcel of Article 16(1) and (2).
...That is to say clause (4) of Article 16 is not an exception to Article 14 in

the sense that whatever classification can be made can be done only
through clause (4) of Article 16. Clause (4) of Article 16, however, is an
explanation containing an exhaustive and exclusive provision regarding
reservation which is one of the forms of classification.
...It is true that there are some authorities of this Court that clause (4) is an
exception to Article 16(1) but with due respect I am not in a position to
subscribe to this view for the reasons that I shall give hereafter.
1.9 A 9-Judge Bench of the Hon’ble Supreme Court settled this issue in Indra
Sawhney v. Union of India, 1992 (Supp) 3 SCC 217, where the majority upheld
the principle laid down in Thomas’ case that Articles 15(4) and 16(4) were not
exceptions to Articles 15(1) and 16(1), but were an emphatic statement of
equality.
1.10 Therefore, equality, as guaranteed in our Constitution, not only conceives of

providing formal equality but also to provide for real and absolute equality.
Articles 14 and 15(1) enable and contemplate classification to achieve the
Constitutional Objective of real equality. Articles 15(4) and 16(4) flow out of
Articles 15(1) and 16(1) respectively, and can never be considered as exceptions
to Article 15(1) and Article 16(1).
1.11 Once this is established, that Article 15(4) and 16(4) are not exceptions to the
mandate of equality but are concrete measures to bring about the mandate of
equality enshrined in Article 14, the effect of this is that the State is obliged to
remove inequalities and backwardness. This obligation of the State has its source
in the mandate of equality itself under Article 14.
1.12 In Thomas’ case, it was held that Government has an affirmative duty to eliminate
inequalities and to provide opportunities for the exercise of human rights and
claims Fundamental rights as enacted in Part III of the Constitution are, by and
large, essentially negative in character. In Indira Sawhney’s case, Sawant, J
concurring with the majority observed that to bring about equality between the
unequals, it was necessary to adopt positive measures to abolish inequality. The
equalising measures would have to use the same tools by which inequality was
4
introduced and perpetuated. Otherwise, equalisation will not be of the unequals.

These equalising measures would be validated by Article 14 which guarantees
equality before law.
1.13 Article 15 is an instance and particular application of the right of equality

provided for in Article 14. While Article 14 guarantees the general right, Articles
15 and 16 are instances of the same right in favour of citizens in some special
circumstances. (Dasaratha v. State of A.P., AIR 1961 SC 564).
1.14 Therefore, the equality contemplated by Article 14 and other cognate Articles like
15(1), 16(1), 29(2), and 38(2) are secured not only by treating equals equally, but
also by treating un-equals unequally. This empowers positive discrimination in
favour of the disadvantaged, particularly the SCs and STs.
1.15 In E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, it was held that a legislation
may not be amenable to challenge on the ground of violation of Article 14 if its
intention is to give effect to Articles 15 and 16 or when the differentiation is not
unreasonable or arbitrary.
1.16 Articles 15 and 16 prohibit discriminatory treatment, but not preferential

treatment of women, which is a positive measure in their favour. Affirmative
action including by way of reservation is enabled by the equality clause in the
Constitution.
1.17 In Preeti Srivastava (Dr) v. State of M.P., (1999) 7 SCC 120, it was observed as
under:
“12. Article 15(4), which was added by the Constitution First Amendment
of 1951, enables the State to make special provisions for the advancement,
inter alia, of Scheduled Castes and Scheduled Tribes, notwithstanding
Articles 15(1) and 29(2). The wording of Article 15(4) is similar to that of
Article 15(3). Article 15(3) was there from the inception. It enables special
provisions being made for women and children notwithstanding Article
15(1) which imposes the mandate of non-discrimination on the ground
(among others) of sex. This was envisaged as a method of protective
discrimination. This same protective discrimination was extended by
Article 15(4) to (among others) Scheduled Castes and Scheduled Tribes.
As a result of the combined operation of these articles, an array of
programmes of compensatory or protective discrimination have been
pursued by the various States and the Union Government…”
13. Since every such policy makes a departure from the equality norm,
though in a permissible manner, for the benefit of the backward, it has
to be designed and worked in a manner conducive to the ultimate
building up of an egalitarian non-discriminating society. That is its
final constitutional justification. Therefore, programmes and policies of
compensatory discrimination under Article 15(4) have to be designed and
pursued to achieve this ultimate national interest. At the same time, the
programmes and policies cannot be unreasonable or arbitrary, nor can
they be executed in a manner which undermines other vital public
5
interests or the general good of all. All public policies, therefore, in this
area have to be tested on the anvil of reasonableness and ultimate public
good. In the case of Article 16(4) the Constitution-makers explicitly spelt
out in Article 335 one such public good which cannot be sacrificed,
namely, the necessity of maintaining efficiency in administration. Article
15(4) also must be used and policies under it framed in a reasonable
manner consistently with the ultimate public interests.
1.18 It has been held, in Govt. of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520, that:
8. What then is meant by “any special provision for women” in Article

15(3)? This “special provision”, which the State may make to improve
women's participation in all activities under the supervision and control
of the State can be in the form of either affirmative action or
reservation.
1.19 In the Thomas case, it was held:
74. The concept of equality of opportunity in matters of employment is

wide enough to include within it compensatory measures to put the
members of the Scheduled Castes and scheduled tribes on par with the
members of other communities which would enable them to get their
share of representation in public service. How can any member of the so-
called forward communities complain of a compensatory measure made
by the Government to ensure the members of Scheduled Castes and
scheduled tribes their due share of representation in public services?
75. It is said that Article 16(4) specifically provides for reservation of posts
in favour of Backward Classes which according to the decision of this
Court would include the power of the State to make reservation at the
stage of promotion also and therefore Article 16(1) cannot include within
its compass the power to give any adventitious aids by legislation or
otherwise to the Backward Classes which would derogate from strict
numerical equality. If reservation is necessary either at the initial stage or
at the stage of promotion or at both to ensure for the members of the
Scheduled Castes and scheduled tribes equality of opportunity in the
matter of employment, I see no reason why that is not permissible under
Article 16(1) as that alone might put them on a parity with the forward
communities in the matter of achieving the result which equality of
opportunity would produce. Whether there is equality of opportunity can
be gauged only by the equality attained in the result. Formal equality of
opportunity simply enables people with more education and
intelligence to capture all the posts and to win over the less fortunate in
education and talent even when the competition is fair. Equality of
result is the test of equality of opportunity.
1.20 Article 17 of the Constitution abolishes the practice of untouchability. Practice of

untouchability is an offense and anyone doing so is punishable by law. The
Untouchability Offences Act of 1955 (renamed the Protection of Civil Rights Act
in 1976) provided penalties for preventing a person from entering a place of
worship or from taking water from a tank or well.t
6
1.21 This is a self-operating Article, and read with Article 39(a)(ii), it becomes clear
that untouchability has been abolished and its practice forbidden.
1.22 This Article is levelled more against private conduct, than against conduct of the
State. The chances of the State promoting or supporting untouchability is rare.
2. FREEDOM RIGHTS (ARTICLES 19 – 22)
2.1 Article 19(1) of the Constitution reads as under:

“19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade
or business “
2.2 Articles 19(2) to 19(6) contain reasonable restrictions on the rights enshrined
under Article 19(1).
2.3 The inter-relationship between Articles 14, 19, and 21 was carefully examined in
Maneka Gandhi v. Union of India, (1978) 1 SCC 248. Discussing this
relationship, it was observed that:
“6. The law, must, therefore, now be taken to be well settled that Article
21 does not exclude Article 19 and that even if there is a law prescribing
a procedure for depriving a person of “personal liberty” and there is
consequently no infringement of the fundamental right conferred by
Article 21, such law, insofar as it abridges or takes away any
fundamental right under Article 19 would have to meet the challenge of
that article. This proposition can no longer be disputed after the
decisions in R.C. Cooper case, Shambhu Nath Sarkar case and Haradhan Saha
case Now, if a law depriving a person of “personal liberty” and
prescribing a procedure for that purpose within the meaning of Article
21 has to stand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation,
ex-hypothesi it must also be liable to be tested with reference to Article
14. “
2.4 In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, Chandrachud, C.J., as
he then was, observed:
“74. Three Articles of our Constitution, and only three, stand between the
heaven of freedom into which Tagore wanted his country to awake and
the abyss of unrestrained power. They are Articles 14, 19 and 21.”
7
2.5 This was the first mention of what was later to be termed as the Golden Triangle,
i.e. Articles 14, 19, and 21. As observed in Bachan Singh v. State of Punjab,
(1982) 3 SCC 24:
“11. There are three Fundamental Rights in the Constitution which are of
prime importance and which breathe vitality in the concept of the rule of
law. They are Articles 14, 19 and 21 which, in the words of Chandrachud,
C.J. in Minerva Mills case constitute a golden triangle. “
2.6 Hansaria, J. very aptly observed in T.R. Kothandaraman v. T.N. Water Supply
& Drainage Board, (1994) 6 SCC 282 that, “The golden triangle of our Constitution
is composed of Articles 14, 19 and 21. Incorporation of such a trinity in our paramount
parchment is for the purpose of paving such a path for the people of India which may see
them close to the trinity of liberty, equality and fraternity.”
2.7 It is apparent that the right to information was not spelt out as a separate right
under Article 19. However, it is now well-settled in a catena of cases that the
right to freedom of speech and expression enshrined in Article 19(1)(a) includes
the right to information.
2.8 In State of U.P. v. Raj Narain, (1975) 4 SCC 428, it was observed that the right to
know is derived from the concept of freedom of speech. It was held that:
“74. In a Government of responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can be but few
secrets. The people of this country have a right to know every public act,
everything that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public transaction in all
its bearing. The right to know, which is derived from the concept of
freedom of speech, though not absolute, is a factor which should make
one wary, when secrecy is claimed for transactions which can, at any rate,
have no repercussion on public security.”
2.9 This was further confirmed in S.P. Gupta v. Union of India, 1981 Supp SCC 87,
where it was held that:
“The concept of an open Government is the direct emanation from the
right to know which seems to be implicit in the right of free speech and
expression guaranteed under Article 19(1)(a). Therefore, disclosure of
information in regard to the functioning of Government must be the rule
and secrecy an exception justified only where the strictest requirement of
public interest so demands.”
2.10 The law in this regard has been developed over the years, in Union of India v.
Association for Democratic Reforms, (2002) 5 SCC 294 and in PUCL v. Union of
India, (2003) 4 SCC 399.
8
2.11 In consonance with its duty, Parliament enacted the Right to Information Act in
2005. The Preamble of the Act reads as under:
“An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the control
of public authorities, in order to promote transparency and accountability
in the working of every public authority, the constitution of a Central
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto.”
2.22 Article 20 of the Constitution is with respect to protection in respect of conviction

of an offence. It imposes limitations on the powers of the State, which it
otherwise possesses under Article 21, to enact and enforce criminal laws.
2.23 The case of Kalpnath Rai v. State, (1997) 8 SCC 732 discussed Article 20(1) with
respect to the Terrorist and Disruptive Activities Prevention Act, 1987, which
was amended in 1993. By the said amendment, all ingredients would have to be
satisfied against the accused for being convicted as a terrorist under Section 3(5)
of the Act. It was held that:
“34. Sub-section 3(5) was inserted in TADA by Act 43 of 1993 which came
into force on 23-5-1993. Under Article 20(1) of the Constitution “no person
shall be convicted of any offence except for violation of a law in force at
the time of the commission of the act charged as an offence”. So it is not
enough that one was member of a terrorists' gang before 23-5-1993.”
2.24 Article 20(2) is aimed at protecting an individual from being subjected to

prosecution and conviction for the same offence more than once. (See Maqbool
Hussain v. State of Bombay, AIR 1953 SC 325)
2.25 Article 20(3), which protects an individual against self-incrimination, has been
termed a ‘humane’ Article. It gives protection to a person accused of an offence
against compulsion to be a witness against himself. This is in consonance with
the expression ‘according to procedure established by law’, enshrined in Article
21, within the ambit of which just and fair trials lie.
2.27 Article 21 of the Constitution reads as under:

“21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except
according to procedure established by law “
2.28 From the wording of the Article, it is obvious that the language is negative.
However, Article 21 confers on every person the fundamental right to life and
9
personal liberty. It is the most fundamental of human rights, and recognizes the
sanctity of human life.
2.29 Initially, the approach to Article 21, as in A.K. Gopalan v. State of Madras, AIR
1950 SC 27 was restricted to a rather literal interpretation of the Article. It was a
circumscribed approach. The majority held that Article 22 was a self-contained
code, and that the law of preventive detention did not have to satisfy the
requirements of Articles 14, 19, and 21. A narrow interpretation was placed on
the words “personal liberty”, to confine the protection of Article 21 to freedom of
the person against unlawful detention. This judgment led to a theory wherein the
freedoms under Articles 19, 21, 22, and 31 were considered to be exclusive. The
basis for this was the thought process that certain Articles in the Constitution
exclusively deal with specific matters and in determining if an infringement of
fundamental rights had occurred, the object and form of State action alone
needed to be considered, and the effect of the law on the fundamental rights of
the individuals in general would be ignored.
2.30 This was overruled in, R.C. Cooper v. Union of India, (1970), where it was
held that even where a person is detained in accordance with the procedure
prescribed by law, as mandated be Article 21, the protection conferred by the
various clauses of Article 19(1) does not cease to be available to him and the law
authorising such detention has to satisfy the test of the applicable freedoms
under Article 19(1).
2.31 The concept of “personal liberty” gradually began to be liberally interpreted by

the judiciary. The Hon’ble Supreme Court of India, in Kharak Singh v. State of
UP, AIR 1963 SC 1295, held, with respect to ‘personal liberty’, that “We feel unable
to hold that the term was intended to bear only this narrow interpretation but on the
other hand consider that “personal liberty” is used in the Article as a compendious term
to include within itself all the varieties of rights which go to make up the “personal
liberties” of man other than those dealt with in the several clauses of Article 19(1). In
other words, while Article 19(1) deals with particular species or attributes of that
freedom, “personal liberty” in Article 21 takes in and comprises the residue.”
2.32 In the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the Court
examined the judgments in A.K. Gopalan’s case, R.C. Cooper’s case, and Kharak
Singh’s case in detail. It was observed that:
10
“The expression “personal liberty” in Article 21 is of the widest

amplitude and it covers a variety of rights which go to constitute the
personal liberty of man and some of them have been raised to the status
of distinct fundamental rights and given additional protection under
Article 19.”
2.33 It was further observed that any law interfering with personal liberty of a person
must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must
withstand the test of one or more of the fundamental rights conferred under
Article 19 which may be applicable in a given situation; and (iii) it must also be
liable to be tested with reference to Article 14. As the test propounded by Article
14 pervades Article 21 as well, the law and procedure authorising interference
with personal liberty and right of privacy must also be right and just and fair and
not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy
the requirement of Article 14 it would be no procedure at all within the meaning
of Article 21.
2.34 In today’s world, new needs of a person for liberty in different spheres of life can
now be claimed as a part of “personal liberty”, and these cannot be restricted,
apart from satisfying Articles 14 and 19.
2.35 Some of the rights which could fall under the ambit of Article 21 have been
clearly spelt out by the judiciary in various judgments, to be a part of Article 21:
(i) Right to counsel [M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544]
(ii) Right of a person to not be subjected to bonded labour [PUCL v. Union of
India, (1982) 3 SCC 235]
(iii) Right to livelihood [Olga Tellis v. Bombay Municipal Corpn, (1985) 3 SCC 545
– also see DTC v. DTC Mazdoor Congress, AIR 1991 SC 101]
(iv) Right to immediate medical aid [Parmanand Katara v. Union of India, (1989)
4 SCC 286]
(v) Right to free legal aid [State of Maharashtra v. MP Vashi, AIR 1996 SC 1]
2.36 The right to education has also been held to be a part of Article 21. A series of
decisions, including Mohini Jain v. State of Karnataka, (1992) 3 SCC 666,
Unnikrishnan J.P. v. State of A.P., AIR 1993 SC 2178, etc. culminated in an
amendment to the Constitution being moved in 1997, leading to the
incorporation of Article 21-A, which reads as under:
“The State shall provide free and compulsory education to all children of
6 to 14 years in such manner as the State, may by law determine”
2.37 Following this, the Right of Children to Free and Compulsory Education Act,
2009 was enacted.
11
2.38 Article 22 provides for protection against arrest and detention in certain cases. It
is not a complete code of constitutional safeguards with respect to preventive
detention. Points which are expressly or implicitly not dealt with by Article 22,
are covered under Article 21.
2.39 The reasoning behind the inclusion of Article 22 in Part III of the Constitution
was discussed in Pankaj Kumar Chakrabarty v. State of W.B., (1969) 3 SCC 400,
where it was held that:
“8. Article 21 guarantees protection against deprivation of personal

liberty save that in accordance with the procedure established by law. At
first sight it would appear somewhat strange that the Constitution should
make provisions relating to preventive detention immediately next after
Article 21. That appears to have been done because the Constitution
recognises the necessity of preventive detention on extraordinary
occasions when control over public order, security of the country etc. are
in danger of a breakdown. But while recognising the need of preventive
detention without recourse to the normal procedure according to law, it
provides at the same time certain restrictions on the power of dentention
both legislative and executive which it considers as minimum safeguards
to ensure that the power of such detention is not illegitimately or
arbitrarily used. The power of preventive detention is thus acquiesced
in by the Constitution as a necessary evil and is, therefore, hedged in
by diverse procedural safeguards to minimise as much as possible the
danger of its misuse. It is for this reason that Article 22 has been given a
place in the Chapter on guaranteed rights.
2.40 Sawant, J. in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt),
1992 Supp (1) SCC 496 made it clear that Article 22 had to be tested on the anvil
of Articles 14, 19, and 21. It was stated as under:
“8. …After the decision of this Court in Rustom Cavasjee Cooper v. Union of
India which is otherwise known as the Bank Nationalisation case and in
Maneka Gandhi v. Union of India, it is now well settled (if ever there was
any doubt) that the fundamental rights under Chapter III of the
Constitution are to be read as a part of an integrated scheme. They are not
exclusive of each other but operate, and are, subject to each other. The
action complained of must satisfy the tests of all the said rights so far as
they are applicable to individual cases. It is not enough, that it satisfies
the requirements of any one of them. In particular, it is well settled that
Article 22(5) is not the sole repository of the detenu's rights. His rights
are also governed by the other fundamental rights particularly those
enshrined in Articles 14, 19 and 21. Article 14 guarantees to all persons
equality before the law and equal protection of the laws. Articles 19, 20,
21 and 22 are grouped under the broad heading “Right to Freedom”.
Article 19 is breached if any citizen is deprived whether, temporarily or
permanently, of any of the rights which are mentioned therein. Although
Article 19 confers freedoms mentioned therein only on citizens, neither
Article 14 nor Articles 20, 21 and 22 are confined to the protection of
freedoms of citizens only. They extend the relevant freedoms even to
non-citizens. The freedoms given to the citizen by Article 19 are, as if,
further sought to be guaranteed by Articles 20, 21 and 22 in particular.
Hence while examining action resulting in the deprivation of the liberty
of any person, the limitations on such action imposed by the other
fundamental rights where and to the extent applicable have to be borne in
mind.”
12
It was further observed that:

“11. The provisions of Articles 21 and 22 read together, therefore, make it
clear that a person can be deprived of his life or personal liberty
according to procedure established by law, and if the law made for the
purpose is valid, the person who is deprived of his life or liberty has to
challenge his arrest or detention, as the case may be, according to the
provisions of the law under which he is arrested or detained. This
proposition is valid both for punitive and preventive detention. The
difference between them is made by the limitations placed by sub-clauses
(1) and (2) on the one hand and sub-clauses (4) to (7) on the other of
Article 22, to which we have already referred above. What is necessary to
remember for our purpose is that the Constitution permits both punitive
and preventive detention provided it is according to procedure
established by law made for the purpose and if both the law and the
procedure laid down by it, are valid.”
3. RIGHTS AGAINST EXPLOITATION (ARTICLES 23-24)
3.1 Article 23 enacts a very important fundamental right in the following terms:
“23. 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 purposes, 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.”
3.2 This Article has been clearly designed to protect the individual not only against
the State, but also against private individuals. It prohibits not only forced labour,
but also ‘traffic in human beings’, which includes trafficking women for immoral
or other purposes.
3.3 The reasoning behind the inclusion of this Article in Part III is examined in
People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
12. …The reason for enacting this provision in the Chapter on

Fundamental Rights is to be found in the socio-economic condition of
the people at the time when the Constitution came to be enacted. The
Constitution-makers, when they set out to frame the Constitution, found
that they had the enormous task before them of changing the socio-
economic structure of the country and bringing about socio-economic
regeneration with a view to reaching social and economic justice to the
common man. Large masses of people, bled white by wellnigh two
centuries of foreign rule, were living in abject poverty and destitution,
with ignorance and illiteracy accentuating their helplessness and despair.
The society had degenerated into a status-oriented hierarchical society
with little respect for the dignity of the individual who was in the lower
13
rungs of the social ladder or in an economically impoverished condition.

The political revolution was completed and it had succeeded in bringing
freedom to the country but freedom was not an end in itself, it was only a
means to an end, the end being the raising of the people to higher levels
of achievement and bringing about their total advancement and welfare.
Political freedom had no meaning unless it was accompanied by social
and economic freedom and it was therefore necessary to carry forward
the social and economic revolution with a view to creating socio-
economic conditions in which every one would be able to enjoy basic
human rights and participate in the fruits of freedom and liberty in an
egalitarian social and economic framework. It was with this end in
view that the Constitution-makers enacted the directive principles of
state policy in Part IV of the Constitution setting out the constitutional
goal of a new socio-economic order. Now there was one feature of our
national life which was ugly and shameful and which cried for urgent
attention and that was the existence of bonded or forced labour in large
parts of the country. This evil was the relic of a feudal exploitative society
and it was totally incompatible with the new egalitarian socio-economic
order which “we the people of India” were determined to build and
constituted a gross and most revolting denial of basic human dignity. It
was therefore necessary to eradicate this pernicious practice and wipe it
out altogether from the national scene and this had to be done
immediately because with the advent of freedom, such practice could not
be allowed to continue to blight the national life any longer. Obviously, it
would not have been enough merely to include abolition of forced labour
in the directive principles of state policy, because then the outlawing of
this practice would not have been legally enforceable and it would have
continued to plague our national life in violation of the basic
constitutional norms and values until some appropriate legislation could
be brought by the legislature forbidding such practice. The Constitution-
makers therefore decided to give teeth to their resolve to obliterate and
wipe out this evil practice by enacting constitutional prohibition against it
in the Chapter on Fundamental Rights, so that the abolition of such
practice may become enforceable and effective as soon as the Constitution
came into force. This is the reason why the provision enacted in Article 23
was included in the Chapter on Fundamental Rights. The prohibition
against “traffic in human beings and begar and other similar forms of
forced labour” is clearly intended to be a general prohibition, total in its
effect and all pervasive in its range and it is enforceable not only against
the State but also against any other person indulging in any such practice.
3.4 The Court further went on to elaborate on ‘forced labour’, and stated that:
“14. …Any factor which deprives a person of a choice of alternatives and

compels him to adopt one particular course of action may properly be
regarded as “force” and if labour or service is compelled as a result of
such “force”, it would be “forced labour”.
3.5 The rights of the ‘fallen women and their children’ were very succinctly traced in
Gaurav Jain v. Union of India, (1997) 8 SCC 114 as under:
“4. Let us, therefore, first consider the rights of the fallen women and
their children given by the Constitution and the Directive Principles, the
Human Rights and the Convention on the Right of Child, before
considering the social ignominy attached to them and before looking for
the remedy to relieve them from the agony and make them equal
participants in a normal social order. Article 14 provides for equality in
general. Article 21 guarantees right to life and liberty. Article 15 prohibits
14
discrimination on the grounds of religion, race, caste, sex or place of birth,

or of any of them. Article 15(3) provides for special protective
discrimination in favour of women and child relieving them from the
moribund of formal equality. It states that “nothing in this article shall
prevent the State from making any special provision for women and
children”. Article 16(1) covers equality of opportunity in matters of public
employment. Article 23 prohibits traffic in human beings and forced
labour and makes it punishable under Suppression of Immoral Traffic
in Women and Girls Act, 1956 which was renamed in 1990 as the
Immoral Traffic (Prevention) Act (for short the “ITP Act”). Article 24
prohibits employment of children in any hazardous employment or in
any factory or mine unsuited to their age.
5. Article 38 enjoins the State to secure and protect, as effectively as it
may, a social order in which justice — social, economic and political, shall
inform all the institutions of national life. It enjoins, by appropriate
statutory or administrative actions, that the State should minimise the
inequalities in status and provide facilities and opportunities to make
equal results. Article 39(f) provides that children should be given
opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity; and that childhood and youth are
protected against exploitation and against moral and material
abandonment. Article 46 directs the State to promote the educational and
economic interests of the women and weaker sections of the people and
to protect them from social injustice and all forms of exploitation. Article
45 makes provision for free and compulsory education for children,
which is now well settled as a fundamental right to children up to the age
of 14 years; it also mandates that facilities and opportunities for higher
educational avenues be provided to them. Social justice and economic
empowerment are firmly held as fundamental rights of every citizen
3.6 Article 24 prohibits the employment of children in factories, etc., and reads as
follows:
“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”
3.7 In the case of M.C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756, the Hon’ble
Supreme Court took judicial notice of child labour in Sivakasi, where the
provisions of Article 24 were being violated. It was held that abolition of child
labour is definitely a matter of great public concern and importance. Poverty was
held to be the driving force behind the evil of child labour.
3.8 This was affirmed in Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC
549. Certain directions were given in this case to ameliorate the problems faced
by children, and to eradicate child labour:
13. We are of the view that a direction needs to be given that the
Government of India should convene a meeting of the Ministers
concerned of the respective State Governments and their Principal
Secretaries holding Departments concerned, to evolve the principles of
policies for progressive elimination of employment of the children below
the age of 14 years in all employments governed by the respective
enactments mentioned in M.C. Mehta case; to evolve such steps consistent
15
with the scheme laid down in M.C. Mehta case, to provide (1) compulsory
education to all children either by the industries themselves or in
coordination with it by the State Government to the children employed in
the factories, mine or any other industry, organised or unorganised
labour with such timings as is convenient to impart compulsory
education, facilities for secondary, vocational profession and higher
education; (2) apart from education, periodical health check-up; (3)
nutrient food etc.; (4) entrust the responsibilities for implementation of
the principles. Periodical reports of the progress made in that behalf be
submitted to the Registry of this Court. The Central Government is
directed to convene the meeting within two months from the date of
receipt of the order. After evolving the principles, a copy thereof is
directed to be forwarded to the Registry of this Court.
3.9 Article 21-A, providing for free and compulsory education to children, was
introduced into the Constitution as a fundamental right vide the 86th
Amendment Act, 2002.
4. FREEDOM OF RELIGION (ARTICLES 25 – 28)
4.1 Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides
religious freedom to all citizens of India. The objective of this right is to sustain
the principle of secularism in India. According to the Constitution, all religions
are equal before the State and no religion shall be given preference over the
other. Citizens are free to preach, practice and propagate any religion of their
choice.
4.2 It has repeatedly been held that the constitutional scheme guarantees equality in
the matter of religion. The majority of a 5-Judge Bench in the case of M. Ismail
Faruqui (Dr) v. Union of India, (1994) 6 SCC 360 held that:
“37. It is clear from the constitutional scheme that it guarantees equality

in the matter of religion to all individuals and groups irrespective of
their faith emphasising that there is no religion of the State itself. The
Preamble of the Constitution read in particular with Articles 25 to 28
emphasises this aspect and indicates that it is in this manner the concept
of secularism embodied in the constitutional scheme as a creed adopted
by the Indian people has to be understood while examining the
constitutional validity of any legislation on the touchstone of the
Constitution. The concept of secularism is one facet of the right to
equality woven as the central golden thread in the fabric depicting the
pattern of the scheme in our Constitution.”
4.3 The Hon’ble Supreme Court, in Commissioner of Police v. Acharya

Jagadishwarananda Avadhuta, (2004) 12 SCC 770, has extensively examined the
scope and ambit of Articles 25 and 26.
4.4 In Acharya’s case, the Court also touched upon the freedom of religion with
respect to Article 14, and held that:
16
“49. …If one religious denomination is allowed to carry on its religious

practice but another religious denomination is restrained from carrying
on religious practice and almost similar religious practices, the same
makes out a clear case of discrimination in violation of the principles of
Article 14 of the Constitution.”
4.5 A very interesting question of law arose in Sri Venkataramana Devaru v. State
of Mysore, AIR 1958 SC 255 as to whether the right of a religious denomination
to manage its own affairs in matters of religion guaranteed under Article 26(b) is
subject to, and can be controlled by, a law protected by Article 25(2)(b), by
throwing open a Hindu public temple to all classes and sections of Hindus.
4.5 The Hon’ble Court observed that the two provisions were of equal authority.
Following the rule of harmonious construction, it was held that Article 26(b)
must be read subject to Article 25(2)(b). The relevant portion of the judgment
reads as under:
“29. The result then is that there are two provisions of equal authority,
neither of them being subject to the other. The question is how the
apparent conflict between them is to be resolved. The rule of construction
is well settled that when there are in an enactment two provisions which
cannot be reconciled with each other, they should be so interpreted that,
if possible, effect could be given to both. This is what is known as the rule
of harmonious construction. Applying this rule, if the contention of the
appellants is to be accepted, then Article 25(2)(b) will become wholly
nugatory in its application to denominational temples, though, as stated
above, the language of that Article includes them. On the other hand, if
the contention of the respondents is accepted, then full effect can be given
to Article 26(b) in all matters of religion, subject only to this that as
regards one aspect of them, entry into a temple for worship, the rights
declared under Article 25(2)(b) will prevail. While, in the former case,
Article 25(2)(b) will be put wholly out of operation, in the latter, effect can
be given to both that provision and Article 26(b). We must accordingly
hold that Article 26(b) must be read subject to Article 25(2)(b).”
4.6 The reason behind the enactment of Articles 25 to 30 of the Constitution was
discussed at length in the case of Bal Patil v. Union of India, (2005) 6 SCC 690.
Dharmadhikari, J. speaking for the Court, observed:
24. It is against this background of partition that at the time of giving final
shape to the Constitution of India, it was felt necessary to allay the
apprehensions and fears in the minds of Muslims and other religious
communities by providing to them a special guarantee and protection of
their religious, cultural and educational rights. Such protection was found
necessary to maintain the unity and integrity of free India because even
after partition of India communities like Muslims and Christians in
greater numbers living in different parts of India opted to continue to live
in India as children of its soil.
25. It is with the above aim in view that the framers of the Constitution
engrafted group of Articles 25 to 30 in the Constitution of India. The
minorities initially recognised were based on religion and on a national
level e.g. Muslims, Christians, Anglo-Indians and Parsis. Muslims
constituted the largest religious minority because the Mughal period of
17
rule in India was the longest followed by the British Rule during which
many Indians had adopted Muslim and Christian religions.
33. … India is a world in miniature. The group of Articles 25 to 30 of the
Constitution, as the historical background of partition of India shows,
was only to give a guarantee of security to the identified minorities and
thus to maintain the integrity of the country. It was not in the
contemplation of the framers of the Constitution to add to the list of
religious minorities. The Constitution through all its organs is
committed to protect religious, cultural and educational rights of all.
Articles 25 to 30 guarantee cultural and religious freedoms to both
majority and minority groups. Ideal of a democratic society, which has
adopted right to equality as its fundamental creed, should be elimination
of majority and minority and so-called forward and backward classes.
5. CULTURAL RIGHTS (ARTICLES 29-30)
Article 29. Protection of interests of minorities.—(1) Any section of the citizens

residing in the territory of India or any part thereof having a distinct language, script
or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only of religion,
race, caste, language or any of them.
(ii) Article 30. Right of minorities to establish and administer educational

institutions.—(1) All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their choice. (1A) In
making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.
(2) Article 30 (2) is another prohibition against discrimination by the State.

In granting aid to educational institutions, the State shall not discriminate
against institutions managed by any minority-religious or linguistic. Hence,
minority institutions will be entitled to State aid in the same way as other
institutions. Where aid is denied on the ground that the educational institution
is under the management of a minority, then such a denial would be invalid.
Also, the receipt of aid cannot be a reason for altering the nature or character of
the recipient institution. Article 30(2) recognizes that the minority nature of the
institution should continue, notwithstanding the grant of aid
5.1 In Sidhajbhai Sabbai v. State of Gujarat, (1963) 3 SCR 837, the Court considered
the validity of an order issued by the Government of Bombay whereby from the
academic year 1955-56, 80% of the seats in the training colleges for teachers in
non-government training colleges were to be reserved for the teachers nominated
by the Government. The petitioners, who belonged to the minority community,
were, inter alia, running a training college for teachers, as also primary schools.
The said primary schools and college were conducted for the benefit of the
18
religious denomination of the United Church of Northern India and Indian

Christians generally, though admission was not denied to students belonging to
other communities. The petitioners challenged the government order requiring
80% of the seats to be filled by nominees of the Government, inter alia, on the
ground that the petitioners were members of a religious denomination and that
they constituted a religious minority, and that the educational institutions had
been established primarily for the benefit of the Christian community. It was the
case of the petitioners that the decision of the Government violated their
fundamental rights guaranteed by Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f)
and (g). While interpreting Article 30, it was observed by the Court as under:
“All minorities, linguistic or religious have by Article 30(1) an absolute
right to establish and administer educational institutions of their choice;
and any law or executive direction which seeks to infringe the substance
of that right under Article 30(1) would to that extent be void. This,
however, is not to say that it is not open to the State to impose
regulations upon the exercise of this right. The fundamental freedom is
to establish and to administer educational institutions: it is a right to
establish and administer what are in truth educational institutions,
institutions which cater to the educational needs of the citizens, or
sections thereof. Regulation made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality, public order and the
like may undoubtedly be imposed. Such regulations are not restrictions
on the substance of the right which is guaranteed: they secure the proper
functioning of the institution, in matters educational.”
5.2 It was further held:

“The right established by Article 30(1) is a fundamental right declared in
terms absolute. Unlike the fundamental freedoms guaranteed by Article
19, it is not subject to reasonable restrictions. It is intended to be a real
right for the protection of the minorities in the matter of setting up of
educational institutions of their own choice. The right is intended to be
effective and is not to be whittled down by so-called regulative measures
conceived in the interest not of the minority educational institution, but of
the public or the nation as a whole”
5.3 In State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, the Court
held that the minority institutions could not be allowed to fall below the
standards of excellence expected of educational institutions, or under the guise of
the exclusive right of management, allowed to decline to follow the general
pattern. The Court stated that while the management must be left to the
minority, they may be compelled to keep in step with others. It was pointed out
that an exception to the right under Article 30 was the power with the State to
regulate education, educational standards and allied matters.
5.4 The Hon’ble Supreme Court, in Ahmedabad St. Xavier’s College Society v.
State of Gujarat, (1974) 1 SCC 717, considered the scope and ambit of the rights
of the minorities, whether based on religion or language, to establish and
19
administer educational institutions of their choice under Article 30(1) of the

Constitution. In dealing with this aspect, Ray, C.J., observed as follows:
“9. Every section of the public, the majority as well as minority has
rights in respect of religion as contemplated in Articles 25 and 26 and
rights in respect of language, script, culture as contemplated in
Article 29. The whole object of conferring the right on minorities under
Article 30 is to ensure that there will be equality between the majority
and the minority. If the minorities do not have such special protection
they will be denied equality.”
5.5 Elaborating on the meaning and intent of Article 30, the learned Chief Justice
further observed as follows:
“12. The real reason embodied in Article 30(1) of the Constitution is the
conscience of the nation that the minorities, religious as well as
linguistic, are not prohibited from establishing and administering
educational institutions of their choice for the purpose of giving their
children the best general education to make them complete men and
women of the country. The minorities are given this protection under
Article 30 in order to preserve and strengthen the integrity and unity of
the country. The sphere of general secular education is intended to
develop the commonness of boys and girls of our country. This is in the
true spirit of liberty, equality and fraternity through the medium of
education. If religious or linguistic minorities are not given protection
under Article 30 to establish and administer educational institutions of
their choice, they will feel isolated and separate. General secular
education will open doors of perception and act as the natural light of
mind for our countrymen to live in the whole.”
5.6 While advocating that provisions of the Constitution should be construed

according to the liberal, generous and sympathetic approach, and after
considering the principles which could be discerned by him from the earlier
decisions of the Court, Khanna, J., observed as follows:
“89... The minorities are as much children of the soil as the majority
and the approach has been to ensure that nothing should be done as
might deprive the minorities of a sense of belonging, of a feeling of
security, of a consciousness of equality and of the awareness that the
conservation of their religion, culture, language and script as also the
protection of their educational institutions is a fundamental right
enshrined in the Constitution. The same generous, liberal and
sympathetic approach should weigh with the courts in construing
Articles 29 and 30 as marked the deliberations of the Constitution-
makers in drafting those articles and making them part of the
fundamental rights. The safeguarding of the interest of the minorities
amongst sections of population is as important as the protection of the
interest amongst individuals of persons who are below the age of
majority or are otherwise suffering from some kind of infirmity. The
Constitution and the laws made by civilized nations, therefore, generally
contain provisions for the protection of those interests. It can, indeed, be
said to be an index of the level of civilization and catholicity of a nation
as to how far their minorities feel secure and are not subject to any
discrimination or suppression.”
5.7 In St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558, the right
of minorities to administer educational institutions and the applicability of
Article 29(2) to an institution to which Article 30(1) was applicable came up
20
for consideration. The Court referred to the earlier decisions, and with
regard to Article 30(1), observed as follows:
“54. The minorities whether based on religion or language have the right to
establish and administer educational institutions of their choice. The
administration of educational institutions of their choice under Article 30(1)
means ‘management of the affairs of the institution’. This management must
be free from control so that the founder or their nominees can mould the
institution as they think fit, and in accordance with their ideas of how the
interests of the community in general and the institution in particular will be
best served. But the standards of education are not a part of the management
as such. The standard concerns the body politic and is governed by
considerations of the advancement of the country and its people. Such
regulations do not bear directly upon management although they may
indirectly affect it. The State, therefore has the right to regulate the standard
of education and allied matters. Minority institutions cannot be permitted to
fall below the standards of excellence expected of educational institutions.
They cannot decline to follow the general pattern of education under the
guise of exclusive right of management. While the management must be left
to them, they may be compelled to keep in step with others.”
5.8 According to the learned Judges, the question of the interplay of Article 29(2)
with Article 30(1) had arisen in that case for the first time, and had not been
considered by the Court earlier; they observed that “we are on virgin soil, not on
trodden ground”. Dealing with the interplay of these two articles, it was observed,
as follows:
“96. The collective minority right is required to be made functional and
is not to be reduced to useless lumber. A meaningful right must be
shaped, moulded and created under Article 30(1), while at the same
time affirming the right of individuals under Article 29(2). There is need
to strike a balance between the two competing rights. It is necessary to
mediate between Article 29(2) and Article 30(1), between letter and spirit
of these articles, between traditions of the past and the convenience of
the present, between society’s need for stability and its need for
change.”
5.9 It was further noticed that the right under Article 30(1) had to be read subject to
the power of the State to regulate education, educational standards and allied
matters. In this connection, , it was observed as follows:
“59. The need for a detailed study on this aspect is indeed not necessary.
The right to minorities whether religious or linguistic, to administer
educational institutions and the power of the State to regulate academic
matters and management is now fairly well settled. The right to
administer does not include the right to maladminister. The State being
the controlling authority has right and duty to regulate all academic
matters. Regulations which will serve the interests of students and
teachers, and to preserve the uniformity in standards of education
among the affiliated institutions could be made. The minority
institutions cannot claim immunity against such general pattern and
standard or against general laws such as laws relating to law and order,
health, hygiene, labour relations, social welfare legislations, contracts,
torts etc. which are applicable to all communities. So long as the basic
right of minorities to manage educational institution is not taken away,
the State is competent to make regulatory legislation. Regulations,
however, shall not have the effect of depriving the right of minorities to
educate their children in their own institution. That is a privilege which
is implied in the right conferred by Article 30(1).”
21
5.10 In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, an 11-Judge
Bench of the Supreme Court considered the entire scope of Articles 25 to 30 of the
Constitution:
“82. Article 25 gives to all persons the freedom of conscience and the right
to freely profess, practise and propagate religion. This right, however, is
not absolute. The opening words of Article 25(1) make this right subject to
public order, morality and health, and also to the other provisions of Part
III of the Constitution. This would mean that the right given to a person
under Article 25(1) can be curtailed or regulated if the exercise of that
right would violate other provisions of Part III of the Constitution, or if
the exercise thereof is not in consonance with public order, morality and
health….
83. Article 25(2) gives specific power to the State to make any law
regulating or restricting any economic, financial, political or other secular
activity, which may be associated with religious practice as provided by
sub-clause (a) of Article 25(2). This is a further curtailment of the right to
profess, practise and propagate religion conferred on the persons under
Article 25(1). Article 25(2)(a) covers only a limited area associated with
religious practice, in respect of which a law can be made….
84. The freedom to manage religious affairs is provided by Article 26.

This article gives the right to every religious denomination, or any section
thereof, to exercise the rights that it stipulates. However, this right has to
be exercised in a manner that is in conformity with public order, morality
and health. ….. Therefore, while Article 25(1) grants the freedom of
conscience and the right to profess, practise and propagate religion,
Article 26 can be said to be complementary to it, and provides for every
religious denomination, or any section thereof, to exercise the rights
mentioned therein. This is because Article 26 does not deal with the right
of an individual, but is confined to a religious denomination. Article 26
refers to a denomination of any religion, whether it is a majority or a
minority religion, just as Article 25 refers to all persons, whether they
belong to the majority or a minority religion. Article 26 gives the right to
majority religious denominations, as well as to minority religious
denominations, to exercise the rights contained therein.
85. Secularism being one of the important basic features of our

Constitution, Article 27 provides that no person shall be compelled to pay
any taxes, the proceeds of which are specifically appropriated for the
payment of expenses for the promotion and maintenance of any
particular religion or religious denomination. The manner in which the
article has been framed does not prohibit the State from enacting a law to
incur expenses for the promotion or maintenance of any particular
religion or religious denomination, but specifies that by that law, no
person can be compelled to pay any tax, the proceeds of which are to be
so utilized. In other words, if there is a tax for the promotion or
maintenance of any particular religion or religious denomination, no
person can be compelled to pay any such tax.
86. Article 28(1) prohibits any educational institution, which is wholly

maintained out of State funds, to provide for religious instruction. Moral
education dissociated from any denominational doctrine is not
22
prohibited; but, as the State is intended to be secular, an educational

institution wholly maintained out of State funds cannot impart or provide
for any religious instruction.
87. The exception to Article 28(1) is contained in Article 28(2). Article

28(2) deals with cases where, by an endowment or trust, an institution is
established, and the terms of the endowment or the trust require the
imparting of religious instruction, and where that institution is
administered by the State. In such a case, the prohibition contained in
Article 28(1) does not apply. If the administration of such an institution is
voluntarily given to the Government, or the Government, for a good
reason and in accordance with law, assumes or takes over the
management of that institution, say on account of maladministration,
then the Government, on assuming the administration of the institution,
would be obliged to continue with the imparting of religious instruction
as provided by the endowment or the trust.
88. While Article 28(1) and Article 28(2) relate to institutions that are
wholly maintained out of State funds, Article 28(3) deals with an
educational institution that is recognized by the State or receives aid out
of State funds. Article 28(3) gives the person attending any educational
institution the right not to take part in any religious instruction, which
may be imparted by an institution recognized by the State, or receiving
aid from the State. Such a person also has the right not to attend any
religious worship that may be conducted in such an institution, or in any
premises attached thereto, unless such a person, or if he/she is a minor,
his/her guardian, has given his/her consent. The reading of Article 28(3)
clearly shows that no person attending an educational institution can be
required to take part in any religious instruction or any religious worship,
unless the person or his/her guardian has given his/her consent thereto,
in a case where the educational institution has been recognized by the
State or receives aid out of its funds. ….
89. Articles 29 and 30 are a group of articles relating to cultural and

educational rights. Article 29(1) gives the right to any section of the
citizens residing in India or any part thereof, and having a distinct
language, script or culture of its own, to conserve the same. Article 29(1)
does not refer to any religion, even though the marginal note of the article
mentions the interests of minorities. Article 29(1) essentially refers to
sections of citizens who have a distinct language, script or culture, even
though their religion may not be the same. The common thread that runs
through Article 29(1) is language, script or culture, and not religion. For
example, if in any part of the country, there is a section of society that has
a distinct language, they are entitled to conserve the same, even though
the persons having that language may profess different religions. Article
29(1) gives the right to all sections of citizens, whether they are in a
minority or the majority religion, to conserve their language, script or
culture.
90. In the exercise of this right to conserve the language, script or culture,
that section of the society can set up educational institutions. The right to
establish and maintain educational institutions of its choice is a necessary
concomitant to the right conferred by Article 30. The right under Article
30 is not absolute. Article 29(2) provides that, where any educational
institution is maintained by the State or receives aid out of State funds, no
23
citizen shall be denied admission on the grounds only of religion, race,

caste, language or any of them. The use of the expression “any
educational institution” in Article 29(2) would (sic not) refer to any
educational institution established by anyone, but which is maintained by
the State or receives aid out of State funds. In other words, on a plain
reading, State-maintained or aided educational institutions, whether
established by the Government or the majority or a minority community
cannot deny admission to a citizen on the grounds only of religion, race,
caste or language.
91. The right of the minorities to establish and administer educational

institutions is provided for by Article 30(1). To some extent, Article
26(1)(a) and Article 30(1) overlap, insofar as they relate to the
establishment of educational institutions; but whereas Article 26 gives the
right both to the majority as well as minority communities to establish
and maintain institutions for charitable purposes, which would, inter alia,
include educational institutions, Article 30(1) refers to the right of
minorities to establish and maintain educational institutions of their
choice. Another difference between Article 26 and Article 30 is that
whereas Article 26 refers only to religious denominations, Article 30
contains the right of religious as well as linguistic minorities to establish
and administer educational institutions of their choice”
5.11 After tracing the evolution of Articles 25 to 28, and after considering the entire
case-law on the subject, it was observed:
“138. As we look at it, Article 30(1) is a sort of guarantee or assurance to

the linguistic and religious minority institutions of their right to establish
and administer educational institutions of their choice. Secularism and
equality being two of the basic features of the Constitution, Article
30(1) ensures protection to the linguistic and religious minorities,
thereby preserving the secularism of the country. Furthermore, the
principles of equality must necessarily apply to the enjoyment of such
rights. No law can be framed that will discriminate against such
minorities with regard to the establishment and administration of
educational institutions vis-à-vis other educational institutions. Any law
or rule or regulation that would put the educational institutions run by
the minorities at a disadvantage when compared to the institutions run
by the others will have to be struck down. At the same time, there also
cannot be any reverse discrimination.
148. Both Articles 29 and 30 form a part of the fundamental rights chapter
in Part III of the Constitution. Article 30 is confined to minorities, be it
religious or linguistic, and unlike Article 29(1), the right available under
the said article cannot be availed by any section of citizens. The main
distinction between Article 29(1) and Article 30(1) is that in the former,
the right is confined to conservation of language, script or culture. As
was observed in Father W. Proost case the right given by Article 29(1) is
fortified by Article 30(1), insofar as minorities are concerned. In St.
Xavier's College case it was held that the right to establish an educational
institution is not confined to conservation of language, script or culture.
When constitutional provisions are interpreted, it has to be borne in mind
that the interpretation should be such as to further the object of their
incorporation. They cannot be read in isolation and have to be read
harmoniously to provide meaning and purpose. They cannot be
24
interpreted in a manner that renders another provision redundant. If

necessary, a purposive and harmonious interpretation should be given.”
5.12 The issues of equality and secularism were discussed in the judgment from para
156, and the Court observed:
“159. Each of the people of India has an important place in the formation
of the nation. Each piece has to retain its own colour. By itself, it may be
an insignificant stone, but when placed in a proper manner, goes into the
making of a full picture of India in all its different colours and hues.
160. A citizen of India stands in a similar position. The Constitution

recognizes the differences among the people of India, but it gives equal
importance to each of them, their differences notwithstanding, for only
then can there be a unified secular nation. Recognizing the need for the
preservation and retention of different pieces that go into the making of a
whole nation, the Constitution, while maintaining, inter alia, the basic
principle of equality, contains adequate provisions that ensure the
preservation of these different pieces.
161. The essence of secularism in India is the recognition and preservation

of the different types of people, with diverse languages and different
beliefs, and placing them together so as to form a whole and united India.
Articles 29 and 30 do not more than seek to preserve the differences that
exist, and at the same time, unite the people to form one strong nation.”
5.13 The Supreme Court, in P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537,
considered the inter-relationship between Articles 19(1)(g), 29(2) and 30(1) of the
Constitution. It was observed that the right to establish an educational
institution, for charity or for profit, being an occupation, was protected by Article
19(1)(g). Notwithstanding the fact that the right of a minority to establish and
administer an educational institution would be protected by Article 19(1)(g) yet
the founding fathers of the Constitution felt the need of enacting Article 30,
which was intended to instill confidence in minorities against
executive/legislative encroachment.
5.14 An important distinction was drawn between elementary and higher education,
and the Court observed that:
107. Educational institutions imparting higher education i.e. graduate

level and above and in particular specialised education such as technical
or professional, constitute a separate class. While embarking upon
resolving issues of constitutional significance, where the letter of the
Constitution is not clear, we have to keep in view the spirit of the
Constitution, as spelt out by its entire scheme. Education aimed at
imparting professional or technical qualifications stands on a different
footing from other educational instruction. Apart from other provisions,
Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51-
A. Education up to the undergraduate level aims at imparting knowledge
just to enrich the mind and shape the personality of a student. Graduate-
level study is a doorway to admissions in educational institutions
imparting professional or technical or other higher education and,
therefore, at that level, the considerations akin to those relevant for
25
professional or technical educational institutions step in and become

relevant. This is in the national interest and strengthening the national
wealth, education included.
5.15 This Court recognized that Articles 29 and 30 confer absolutely unfettered rights
to minorities to determine the manner of instruction and administration in their
educational institutions.
“119. A minority educational institution may choose not to take any

aid from the State and may also not seek any recognition or
affiliation. It may be imparting such instructions and may have
students learning such knowledge that do not stand in need of any
recognition. Such institutions would be those where instructions
are imparted for the sake of instructions and learning is only for the
sake of learning and acquiring knowledge. Obviously, such
institutions would fall in the category of those who would exercise
their right under the protection and privilege conferred by Article
30(1) “to their hearts' content” unhampered by any restrictions
excepting those which are in national interest based on
considerations such as public safety, national security and national
integrity or are aimed at preventing exploitation of students or the
teaching community. Such institutions cannot indulge in any
activity which is violative of any law of the land.”
6. Right to Constitutional Remedies (Articles 32-35)
(i) Article 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 clauses (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.
(ii) Article 226. Power of High Courts to issue certain writs.—(1)

Notwithstanding anything in article 32 every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III (Fundamental Rights)and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
26
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those
territories.
****
46
2 LEGAL ASPECT OF EQUALITY
The concept of equality demands universal treatment the constitution provides only
partial treatment. How after all with this paradox an egalitarian society can be built? This
question prompted the researcher to dig deep the foundation of constitutional equality as
provided in the Indian constitution and this justifies the preparation of this chapter. The
Indian constitution guarantees to every person the right' to equality. In the series of the
provisions of the constitution which deal with the right to equality, Article 14 makes a just
beginning towards a determined goal. To quote it verbatim:
The State shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.1
This article, as observed by the Supreme Court, lays down the general rule and in effect
provides that: all persons similarly circumstanced must be treated equally both in the
privileges conferred and in the liabilities imposed by the laws.2
Equality before the law is no doubt an essential principle of jurisprudence, as is evident, the
term 'State' has the same meaning as in Article 12, meaning thereby, that all the executive
and legislative authorities of the Union and States as also the local and other authorities are
likewise covered by this provision. A citizen is protected against any discriminatory action
of executive, legislative or judicial authority.
In the opinion of Dicey:
―….equality before the law does not mean an absolute equality of men, which is a
physical impossibility.‖
He further states:
―…..but the denial of any specia' privilege by reason of birth, creed or the like in favour
of any individual and also the equal subjection of all individuals and classes to the
ordinary law of the land administered by the ordinary law courts.‖3
1
The constitution of India (Manager of Publications, Government of India, New Delhi, 1960), p.8
2
Satish Chandra vs. The Union of India, AIR 1953 SC 250, 252.
3
Law of the Constitution, 1939, p. 193.
47
Every law which violates this principle is a negation of this basic fight arid comes within the
purview of judicial review.
It means that law and not discretion or arbitrary power of any authority is the prime
factor of the concept of 'Rule of Law'— equality before law. Every person is subject to the
same law of the land irrespective of his race, religion, wealth, social status or political
influence. In India 'equality before law' has a reflection of the English doctrine of'rule of
law', though it has somewhat a different meaning as compared to the latter. It is on account
of two distinct factors of the sovereignty of parliament in Great Britain and that of the
written constitution in India.
In India, where the constitution intends to establish a Welfare State, actually "it is the
role of law which adds to the relevance and validity of the rule of law." 4 Therefore, the
concept of the rule of law is a dynamic one which not only aims at safeguarding and
advancing the civil and political rights of the citizens of the country but also at establishing
social, economic, educational and cultural conditions under which their legitimate
aspirations and dignity may be realised.5
In this reference the former Chief Justice of the Supreme Court of India P. B.
Gajendragadkar, has elaborated that: wherever social inequality exists or economic injustice
is found, a democratic state enters the arena, and with the aid of law, establish social
equality and removes economic injustice.6
As such Article 14, according to the Chief Justice Subba Rao is:
―a necessary corollary to the high concept of the rule of law7 Also Chief Justic Patanjali
Shastri and Justice S, R. Das held it "as the basic principle of republicanism"8 and "as
founded on a sound public policy recognised and valued in all civilised states
respectively9‖.
4
Gajendragadkar, P. B.: The Indian Parliament and the Fundamental Rights (Eastern Law House, Calcutta,
1972), p. 190.
5
Ibid.
6
Ibid, p. 191
7
Satwant Singh vs. Passport Officer (1967), 3 SCR 525, 542.
8
State of West Bengal vs. Anwar Ali Sarkar (1952) SCR, 284, 293.
9
Basheshar Nath vs. C.I. T. (1959) Supp. (I) SCR 528, 551
48
An interpretation of article 14 reveals two different expressions: 'equality before the law'
and 'equal protection of the laws'. These expressions appear to be identical but in fact they
mean different things. The former is a familiar feature of the 'rule of law' of England. Thus
'equality before the law' owes its origin in English Common Law. As to the latter
connotation, it is the outcome of the Constitution of the United States of America. Section 1
of the 14th Amendment of the U. S. constitution uses the term "equal protection of the
laws". There it has been interpreted to mean subjection to equal laws applying to all in the
same circumstances.
The Indian constitution, on the other hand, uses both these expressions. As the
Preamble of the constitution states both these phrases aim at providing one and the same
thing—the 'equality of status'. While 'equality before the law' appears a negative concept
implying the absence of any special privilege in favour of any individual and the equal
subjection of all classes,10 the 'equal protection of the laws' is a more positive concept
implying equality of treatment in equal circumstances. Justice Subba Rao has observed that:
―two concepts are inherent in this guarantee—one of 'equality before law', a negative
one...and the other equal protection of law' a positive one...The negative aspect is in the
prohibition against discrimination and the positive content is the equal protection under
the law to all who are situated similarly and are in like circumstances.11 However, the
object of both the expressions is basically the same viz., equality of treatment, thereby
equal justice. Jennings' observations of the principle of equality before the law contain
the idea of equality of treatment: ... Equality before the law means that among equals the
law should be equal and should be equally administered, that like should be treated
alike.‖12
In a country where the legislative enactments are subject to the judicial review, the
constitutional provisions are always bound to receive varied meanings in the courts of law.
That is why no constitutional provision is supposed to be redundant. Several judicial
interpretations of Article 14 have acknowledged the existence of these two expressions. The
separate entity of the phrase 'equality before the law' has been accepted by a number of
10
Dicey, op. cit., p. 47.
11
State of U. P. vs. Deoman Upadhyaya (1961) 1 SCR 14 at p. 34; and Justice Reddy in Keshvanand
Bharthi vs. State of Kerala in Palkhiwala, N. A.: Supreme Court on Amendment of Fundamental Rights
in Indian Constitution (1973) (Law Publishing House, Allahabad-3), p. 472.
12
Law of the Constitution, 3rd Ed., p. 49.
49
High Courts in several decisions.13 At the same time the Indian Supreme Court, prior to the
decision in State of U.P. Vs. Deoman, had not found any distinction between the two
expressions. It was in this case that Justice Subba Rao opined differently:
―All persons are equal before the law is fundamental to every civilized constitution.
Equality before the law is a negative concept; equal protection of laws is a positive
one.‖14
He further observed:
―The former declares that everyone is equal before the law, that no one can claim
special privileges and that all classes are equally subjected to the ordinary law of the
land; the latter postulates an equal protection of all a lke in the same situation and under
like circumstances.‖15
If this distinction is accepted, a question arises as to what is the propriety of

incorporating in a written constitution both these analogous guarantees. In V.G. Row vs.
State of Madras, Madras High Court considered as meaningless the inclusion of 'equality
before law as a fundamental right. The court observed:
―The principle of equality before the law does not come into play in any controversy as
to the legality of a law enacted by the State. It comes into play really in the sphere of its
enforcement. This is obvious from the fact that Prof. Dicey who treats it as one of the
fundamentals of the British Constitution was well aware of the supremacy of the British
Parliament in the making of laws. No question can arise in Britain of an Act of Parliament
being invalid; because it contravenes the principle of equality before the law.‖16 The court
further added that:
―….so when Prof. Dicey speaks of the principle being an essential part of the
constitution; it only means that the laws of the land shall be enforced against all persons
13
Asiatic Eng. Co. vs. Acchru Ram, A. 1951 All. 746; Sheoshankar vs. M.P. Govt., A. 1951 Nag. 58 (86);
Suryapal Singh vs. U.P. Govt., A. 1951 All 674 (69); V.G. Row vs. State of Madras, A. 1951 Mad. 147
(F.B.); Shrikrishan vs. Dattu, A. 1953 Nag. 14 (15); S.I. Bank vs. Pichuthayaphan, A. 1953 Mad. 326 (241).
14
A. 1960 SC 1125 (1134).
15
Ibid.
16
A. 1951, Mad. 147 (F.B.)
50
equally without any distinction being made on any ground whatsoever. In my opinion,
it is in this sense that the phrase 'equality before the law' is used in Article 14. ―17
The doctrine of 'equality before the law‘ is equally operative against the legislature
itself. If it dares to enact an enactment inconsistent with any provisions of fundamental
rights, the courts are competent enough to pronounce it unconstitutional. In Lachman Das
vs. state of Punjab18 Justice Subba Rao, in his minority observations, confirmed this view.
Since this guarantee has been superadded to the guarantee of 'equal protection', a
harmonious interpretation of these two principles by the courts is essential if there is a law
impugned as violative of equal protection. He contended that:
―it shall also be remembered that a citizen is entitled to a fundamental right of equality
before the law and that the doctrine of classification is only a subsidiary rule evolved
by courts to give a practical content to the doctrine.‖19
Indeed, he is of the view that by over emphasizing classification of the two principles, the
courts can lead the legislatures to offend against the guarantee of equality before the law.
This process may ultimately tend to challenge even Section 197 of the Criminal Procedure
Code as violative of Article 14, by reasonable classification, make it possible, for certain
categories of public officials, to claim concession in their prosecution or trial. On the whole
Article 14 does, in no way, forbid reasonable classification for the sake of legislation. It is
permissible if it is based on a rational classification.20 This is the judicial interpretation of
Article 14.
2.1 Equality before the Law
By nature itself an absolute equality of man is nothing but impossibility. No one should
think of this in terms of the principle of equality before the law - which means the denial of
any special privilege. Article 14 has been interpreted by several High Courts and the
Supreme Court of India in several judicial decisions. Allahabad High Court observed that:
"equality before the law means equal subjection of all persons to the law."21 It further
17
Ibid.
18
A. 1963 S.C. 222 (240).
19
Ibid.
20
Harnam Singh vs R. T. A. Calcutta Region, AIR 1954 SC 190
21
Suryapal Singh vs. U.P; AIR 1951 A1J.674
51
means that among equals law shall be equal and shall be equally administered.22 To be
clearer it means that all are equally subject to the law, though the law to which some are
subject may be different from the law to which others are subject. Here 'others' denote
public officers who are entrusted with the duty of maintaining public order. These
additional powers for them, however, do not constitute privilege and the doctrine of equality
before the law' is not contravened. It is rather necessary for the public officials to possess
power wider than those of private citizens so as to enable them to discharge their duties
effectively. Such additional powers, definitely, put them on a slightly higher footing than
ordinary citizens.
Of course, every State, from the administrative point of view, has to recognize some
exceptions. These are essential and they may be based on the comity of nations, political
grounds or public interest. The Indian Constitution also contains provisions in this respect.
Article 361 provides certain exceptions to the rule of "equality before law."23 Apart from
this the foreign sovereigns and ambassadors are entitled to enjoy certain immunities and
are, therefore, exempted from the jurisdiction of the courts of the foreign country, criminal
or civil. On the other hand, the alien enemies can be tried in respect of ordinary crimes in
the ordinary courts. But for their acts of war, they can be tried only under martial law and
not by the ordinary courts.
For the violation of the Constitution, the President can be impeached in accordance
with the procedure laid down in Article 61. Likewise, such legal immunity to the President
or the Governor, in no way, restricts the right of a citizen to sue the Union or State
Governments. The constitution also guarantees certain exemptions to the Judges for the acts
done in the discharge of their juridical duties. The Judges have been provided this special
position so that impartial administration of the law may be ensured. Apart from this,
Legislators-members of Parliament as well as of State Legislatures have also are ensured
certain safeguards.24 These are called Parliamentary Privileges which are deemed essential
for the free and fearless deliberations in the Legislatures; otherwise they are subject to the
same rule of law.
22
In re. B.N. Ram Kishore, AIR 1955 Mad. 100; Shiva Shanker vs. M.P. State Government, AIR 1951 Nag.58
23
Appendix 'B'.
24
Articles 105, 106 and 194, 195 have guaranteed certain Parliamentary Privileges to the Members of
Parliament and State Legislatures respectively. See Appendix 'C.
52
2.1.1 General Application of Article 14
A rule of procedure comes as much within the purview of Article 14 as any rule of
substantive law.25 With the result this article condemns "discrimination not only by a
substantive law but by a law of procedure also."26 As already discussed 'equality before the
law' means the denial of any special privileges to any person to sue or be sued and to
prosecute or be prosecuted, for the same kind of action. Though some exceptions are in
favour of public officials owing to the special circumstances are deemed unavoidable. If
any special procedure offending article 14 was prescribed by law before the coming into
force of the constitution, that special procedure cannot stand in the way of the exercise of
enjoyment of post-constitution rights. The constitution is fully entitled to strike down the
discriminatory procedure.27
Section 197 Cr. P. C. speaks a different language. To a person it denies the equality to
be prosecuted alike. It is because of this section that an officer who commits a murder in the
course of his official duty may not be tried for the Offence in case the President or the
Governor (as the case may be) refuses to sanction his prosecution under section 197- A
Public officer can escape punishment for homicide if it is Well proved that the offence was
committed during the course of his official duties. This exception depends upon his
bonafides that he was actually bound by law to do it as a public officer. It is simply soma
sort of special provision for the due discharge of official duties and in no way does this
exception place the particular official above the law. Therefore, such different procedure for
prosecution of Government servants is valid since they in discharge of their duties require
such safeguards.28 As is obvious in this case the court referred only to the 'equal protection'
test and the application of the 'equality' clause was rather ignored. No doubt it is true that
public officials, in the garb of such safeguards, may harass or torture the innocent citizens.
But they cannot escape the clutches of law as is evident from a shooting incident at
Shahdara (Delhi) where a Police Sub-Inspector murdered a private citizen on the pretext of
25
Meenakshi Mills Ltd. vs A.V. Visvanath Sastri, AIR SC 13; Budhan Chaudhari and others vs State of
Bihar; AIRSC195
26
State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75; Kathi Ranning Rawat vs. The state of
Saurashtra, AIR 1952 SC 123
27
Lachmandas Kevalram Ahuja and other vs. The State of Bombay, AIR 1952 SC 25
28
Matajog vs. Bhari; AIR 1956 SC 44.
53
harbouring the dacoits in his house. The case had resulted in the death punishment to the
Sub-Inspector.
The Chief Justice patanjali Shastri had observed earlier in respect of Section 197 of Cr. P.
C:
―…..which provides immunity from prosecution without sanction of the Government

for offences by public servants in relation to their official acts, the policy of the law
being that public officials should not be unduly harassed by private prosecution unless,
in the opinion of the Government, there were reasonable grounds for prosecuting the
public servant?‖29
By the observation the Chief Justice, it appears, had not intended for 'creating by the law a
privileged class of persons' in the matter of prosecution for the same kind of offence. A
homicide is nothing but a homicide irrespective of its commission by an ordinary person or
an official of the Government. It is a matter for the judicial consideration of a court of law at
the trial to judge for itself the circumstances in which the accused was placed owing to his
official position and duties. It is not the function of the executive or the legislature to
determine the acquittal without prosecution.30 Besides, Section 27 of Indian Evidence Act
also, for admitting as valid evidence, makes a difference between statement of an accused
given by him while in the Police custody to a Police Officer, and by those not in such
custody. The former is not considered admissible as evidence while the latter is. This is not
in any way discriminatory and hit by Article 14 because Section 27 hits the evil where it is
most felt.31
The principle of 'equality before law' has a direct reference to justice which implies the
former. Both speak the same meaning. Without the one, the other is worthless. To ensure
equality it is but natural that justice is available to all. The judicial process cannot guarantee
any real equality in the right to sue and be sued, unless legal advice is available to the poorer
both in civil or criminal proceedings. If it is .not so, equal justice to the people will be a
difficult process as a poor can hardly stand at par with a man of wealth. And the very
29
Kedar Nath vs State of West Bengal (1953) SC A. 835 (846).
30
State of West Bengal, vs. Anwar Ali (1952) SCB 284.
31
State of U. P. vs. Deoman Upadhya, AIR 1960 SC 1125.
54
purpose of Article 14, without free advice, at least to the poor, fails. How a man with
insufficient means of livelihood can obtain legal aid to get justice in a court of law. It is a
virtual denial of justice to him.
In India, except section 340 (1) of Cr. P. C, there is no provision in any of the several
enactments which provides legal aid to an accused at the cost of the State. Section 340(1)
lays down: Any person accused of an offence before a criminal court, or against whom
proceedings are instituted under this code in any such court, may of right be defended by a
pleader. Nothing more than this an accused can obtain. But at the same time the Supreme
Court has made the matter more clearly by interpreting Section 340(1):
―The right conferred by Section 340(1) does not extend to a right in an accused person
to be provided with a lawyer by the State or by the Police or by the Magistrate. That is
a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one
himself or get his relations to engage one for him. The only duty cast on the Magistrate
is to afford him the necessary opportunity.‖32
Thus it is evident that, an accused, in a capital case, having no means, will have to depend
entirely at the mercy of the State. His case will not even be vitiated if he is not defended by
a lawyer. Is it equality for him? Certainly not.
Likewise in civil suits order 33 of the Civil Procedure Code gives an opportunity to a
pauper who has the privilege to institute a suit without advance payment of court fee
required on the plaint. Except this there is no other provision to help a poor litigant to have
free legal advice. In its 14th Report, the Law Commission recommended for the
representation of an accused having no means in a session‘s court by a lawyer at the cost of
the State 33 Besides, the Law Commission has also recommended a wide provision in the
Cr. P. C. Bill in regard to legal aid to the poor in criminal cases. It means that all accused
persons must be provided with counsel for their defense at State expense. In its 48th report,
this Commission has observed:
―…in the light of the philosophy reflected in the constitutional provision for equal
treatment before law.‖34
32
Tara Singh vs. The State (1951) SCR 729.
33
Vol. I (Reforms of Judicial Admn.): Paras 17, 20.
34
July, 1972, Government of India, Ministry of Law and Justice, Para 27, p.
55
Every accused person should be assisted as a matter of policy. Making a reference to

clause 40 of Magnacharta which provided that 'to no one will we see, to no one will be
refuse, or delay, right of justice', the Commission suggested that:
―….if the law is to be open to everyone on the same terms; the law must be the
guardian of its own gates‖35.
Apart from the law courts, in recent times, the Administrative Tribunals, with the
rapid growth insubordinate legislation, also protect the concept of ‗rule of law‘. The
subordinate legislation denotes the rules, orders and regulations framed and issued by the
Government or its administrative departments. Similarly the local bodies are conferred
such powers by the legislatures to frame for themselves certain bye-laws. If any of such
rules or enactments of subordinate legislation is not in tune with parental law of the land
and is discriminatory to any people on any ground, it will be deemed to have perverted the
very purpose of Article 14, hence can be challenged in a court of law. Article 13(3) of the
Indian Constitution clearly includes such rules and orders in the definition of law. On
account of ever increasing pressure for legislation, the functions of the State have been
mounting enormously. It is inevitable in the present democratic setup. In other words it is
called 'delegated legislation'.
Like the subordinate legislation which gives enough relief to the State legislatures, the
Administrative Tribunals provide a remarkable help to the already over-burdened courts.
But like the law courts these tribunals have to maintain the concept of 'equality before law.
In case they detract from this doctrine, the ultimate remedy lies in the court of law. Several
statutes in India have so far created certain Administrative authorities like the Transport
Authorities under the Motor Vehicles Act, 1939, the Rent Controller under the State Rent
Control Acts, and the Custodian of Evacuee Property under the Administration of Evacuee
Property Act, 195U. The Supreme Court has observed an Industrial Tribunal as 'Special
Tribunal' which, though not regular court, has judicial authority just as a court has in a
Welfare State like India.36 The number of such Tribunals has been increasing rapidly. The
Law Commission has accepted this fact.37 These Tribunals are expected to deliver
35
Ibid.,-para 23, p. 8.
36
Bharat Bank vs. Employees of Bharat Bank (1950), SCR 459 (1950-51) C.C. 255.
37
14th Report of the Law Commission (Reforms of Judicial Administration), vol. II, Para 38 (1958).
56
administrative judgments which should confirm to the principles of natural justice and
should act with openness, fairness and impartiality. However, it is also essential that the
authority of the ordinary courts of law should have an upper hand over the judgments of
such Tribunals so that fair dealings may be ensured to all the people. It cannot be possible
unless the actions and the decisions of the Administrative authorities are made subject to the
judicial review.
The Indian Constitution has adopted the principle of 'judicial review' of administrative
action. It is on the lines of the Constitution of the United States. It is this process which
redresses the grievances of all the people in case they get any discrimination or unequal
treatment by executive functions. A statutory order is presumed to be a law within the
meaning of Article 13(3) and "the Court is bound to annul it if it violates a fundamental
38
right." Besides, an order of non-statutory nature will be void if it contravenes a
fundamental right. The Supreme Court has held that:
―….if by an order of transfer of income tax cases from one area to another...individuals
have been denied equal protection, the court is bound to annul such order as violative
of Article 14.‖39
However, it is the language and the nature of the constitutional mandate itself which
makes an administrative act invalid. It was on this account that the Supreme Court had to
strike down an order of the Mysore Government.40 By an order the State Government had
reserved as much as 68% of the seats in educational institutions for backward classes. It was
a reservation solely on the basis of caste and religion completely contrary to the
consideration of social and educational' backwardness which is a specific and true criterion
for reservation under Articles 15(4) and 16(4).
The modes of judicial review of administrative order may conveniently be divided in
two kinds i.e. Statutory or Non-Statutory (or common law). As regards the former to ensure
justice the Indian Constitution by its several provisions, has tried to bring the administrative
tribunals under the control and supervision of the Supreme Court. Through Articles 32(2)-
(3) and 226(1) the people have been provided a great relief in the form of certain
38
State of.M. P. vs. Mandawar (1954) SCR 599 (604).
39
Bidi Supply Co. vs. Union of India (1956) SCR 267 (277); Pannalal vs. Union of India, A. 1957 SC 397
(410).
40
Balaji vs. State of Mysore (1962), SC (Sep. 1962).
57
'prerogative writs against all sorts of administrative discrimination. The Supreme Court and
the High Courts under Articles 32 and 226 respectively have been authorized to issue the
writs i.e. Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. But the
Courts have to keep in view the doctrine of 'equality before the law'.
Apart from these writs, another constitutional remedy to the people to knock the doors
of the Supreme Court against the decision of a 'court' or a 'tribunal', is provided in article
136 which lays down a procedure of appeal to the Supreme Court by Special Leave. But
the remedy under this article is not available against purely administrative action, even
though the authority may be called a tribunal.41
Only the quasi-judicial authorities come within the purview of this article. Besides,
article 227 also gives ample supervisory powers to the High Courts. Since the word
'tribunal' finds place in both the articles a High Court can exercise its supervisory
jurisdiction equally both on junior courts and tribunals.
Certain other remedies under the ordinary law of the land are also available to the
aggrieved person to approach the courts against Government action. Some Declaratory
Suits can be instituted in. a court on the ground that an administrative action is null and
void as the authority concerned has acted without jurisdiction or it was not properly
constituted. Before the enforcement of the constitution of India, a suit for declaration was
the only form of judicial review available against the Government action. Section 34 of the
Specific Relief Act, 1963 provides for declaratory suits. It is the discretion of the court
whether and not to allow the claimed remedy. It can even be refused if there has been no
substantial injury or the conduct of the plaintiff is found fraudulent. Besides other grounds,
it can also be refused if the matter is not of a 'civil nature' within the meaning of Section 9 of
the C. P. C.42
Injunction is another remedy to prevent a statutory authority from doing an unlawful
act. When public rights are involved, a private person may easily sue for injunction on the
ground that his personal interests have been affected. Section 40 of the Specific Relief Act,
1963 provides for an injunction against the Government in the same manner as the
41
Durga Shanker vs. Raghuraj (1955) 1 SCR 267, Jaswant vs. Lakhmichand. A 1963 SC 677: Engineering
Mazdoor Sabha vs. Hind Cycles, A 1963 SC 874.
42
Cf. Umrao Singh vs. Bhagwan; A. 1956 SC 15.
58
prerogative writs are issued. An injunction can be granted to restrain "acts contrary to law or
in excess of its statutory powers."43 Similarly it can be available to restrain the levy or
collection of illegal tax; or the basis of the assessment of the tax is not authorised by the
Statute44 or the rule or byelaw authorising the tax is ultra-vires45 or unconstitutional.
Besides, there are also some other special methods for judicial review. Within this
sphere comes the provision of appeals, reference or revision on specific points of law.
Section 30 of the Workmen's Compensation Act, 1923 provides for an appeal from the
decisions of a tribunal to the High Court on points of law only. Likewise there are certain
other statutes which instead of providing for an appeal to the High Court contain provisions
for a reference to the High Court on question of law.46 It depends on the aggrieved party
concerned to seek remedy. The tribunal of its own is also empowered, in certain cases to
make a reference to the High Court e.g. the Commissioner under section 27 of the
Workmen's Compensation Act, 1923, has got such powers. But it is discretionary. It is done
not for the benefit of the tribunal but the party concerned. Similarly, a reference can also be
made under section 18 of the Land Acquisition Act, 1894 to a 'principal civil court of
original jurisdiction' against the award of the Collector.
2.1.2 Doctrine of Natural Justice and Equality before Law
It would be essential to have a look at the famous principle of natural justice' before
closing the deliberations in the concept of 'equality before law' which is related to the
present study. It would be well to know the meaning and implications of this doctrine of
natural justice and the extent to which a person can get 'equality' through it in case denied by
the statute. The doctrine has its own historical background in England. The roots of its
origin go back to two Latin maxims i.e. Nemo debet esse judex in properia causa and
Audi alteram partem. The common law had drawn them from the natural law—jus
naturale. While the meaning of the former is that 'no one should be a judge in his own
cause or that the tribunal must be impartial and without bias,' the latter means that 'hear the
43
Administrator vs. Abdul Majid, A. 1945 Lah. 81 F.B.
44
Govardhandas vs. Municipal Commissioner, A. 1964 SC 1742 (1752).
45
Lokmanya Mills vs. Bursi Borough Municipality, A. 1961 SC 1358 (1361).
46
Meenakshi Mills vs. Commissioner of Income Tax (1956) SCR 691 (720).
59
other side or that both sides in a case should be heard.' To be clear it means that before
delivering the final adjudication both parties should be given an opportunity to be heard.'
Otherwise the very concept of natural justice is lost.
The Constitution of India does not specifically mention the concept of natural justice.
Since it is a written constitution the specific supervisory powers, conferred upon the
superior courts with regard to the inferior courts and tribunals require certain basic ess-
entials. In every judicial or quasi judicial decision these fundamental requirements must be
observed by the courts or tribunals concerned, otherwise that judgment will be vitiated.47
The Supreme Court has observed that there is no universal or uniform standard of natural
justice applicable to all cases coming within the purview of the doctrine.48
It is the justice which is required by an aggrieved person without having any
considerations prejudicial to his rights. If the judicial or quasi-judicial authority adopts a
partial and biased attitude to the affected person, it is nothing but the denial of 'natural
justice —the 'equality before law'. So long as it is considered merely a maxim there is
flexibility in this concept hence can be adopted by the courts to changing circumstances.
When it is made a constitutional guarantee, every law and action which violates this
principle becomes invalid.
2.2 Equal Protection of Laws

As mentioned earlier Article 14 of the Indian Constitution deals with both 'equality
before law' and 'the equal protection of law'. The verbal meaning of equal protection of the
laws means subjection to equal laws applying alike to all in the same situation. It means the
absence of any arbitrary discrimination by the laws themselves as well as in their
administration. No one should be favoured and none should be placed under any
disadvantage, in circumstances that do not admit of any reasonable justification for a
different treatment. Undue favour and individual or class privilege on the one hand, and a
hostile discrimination or the oppression of equality on the other is the very denial of the con-
cept of 'equal protection of the laws. According to the Supreme Court:
―……it implies an equal protection to all persons situated in like circumstances.‖49
47
Manohar Lai vs. Prem Chand (1957) SCR 575 (580-1)
48
N. P. T. Co. vs. N.S.T. Col. (1957) SCR 98.
49
Chiranjit Lai vs. Union of India, AIR 1951 SC 41.
60
In other words, it means the security under the laws to everyone: under similar terms, in
his life, freedom, property and the pursuit of happiness. It signifies that 'equal rights to all
special privileges to none'. The law shall be enforced against all equally without any
distinctions are made on any grounds whatsoever. Article 13(2) clearly states that the States
shall not make any law which takes away or abridges the rights conferred by Part III of the
Constitution. As a result, any law made in contravention of any of the fundamental rights is
void to the extent to which it contravenes a right. Calcutta High Court has upheld that:
―Article 14 of the Constitution is a fundamental right and is a protection in favour of
a person as against the State. It is not a fundamental right for the State to denounce
and disclaim its own Acts and statutes but is a fundamental right for the person who
is aggrieved by the inequality or unequal protection of the laws made by the
State.‖50
It means the right to equal treatment in similar circumstances.51 This treatment may relate
both to the privileges conferred and to the liabilities imposed by the laws.52 Hence, the
doctrine embodied here is the doctrine of human needs depending on the economic and
social status of the individual. What is, therefore, "guaranteed under Act 14 is not equality
in society but equality in class?" 53
2.2.1 Article 14 and Classified Legislation
Equal protection of the laws does not mean that all laws must have universal
application, for all persons are not, by nature, in the same position. The varying needs of
different classes of person often require separate treatment.54 This is what article 14 intends.
It forbids class legislation and not reasonable classification for the purpose of legislation.
50
The State vs. Keshab Chandra Nasker, AIR 1962 Cal. 338.
51
Shri Kishan vs. State of Raj. (1955) 2 SCR (531).
52
State of W. Bengal vs. Anwar Ali (1952) SCR 214 (320).
53
Gupta, M. G.: Modern Governments—Theory and Practice (Central Book Depot, Allahabad, 2nd Ed.,
1969), p. 333.
54
Dhirendra vs. Legal Remembrancer (1952-54), 2 CC 111 (114); (1955) 1 SCR 224; Chiranjit Lai vs. Union
of India (1950) SCR 869; State of Bombay vs. Balsara; (1951) SCR 862 (708-9); State of M. P. vs. Bhopal
Sugar Industries, A. 1964 S.C. 1179 (1181).
61
"Legislation which is based on a rational classification is permissible."55 It is, well

established by judicial decisions that the equal protection clause does not take away from
the State the power to classify persons for legislative purposes, though the classification
may be on different basis. While commenting on Section 4(1) of the Prevention of
Corruption Act, 1947, Justice Gajendragadkar in a case corroborated this opinion. He
opined that:
―Article 14 does not forbid reasonable classification for the purposes of legislation; no
doubt it forbids class legislation; but if it appears that the impugned legislation is based
on a reasonable classification founded on intelligible differentia and that the said
differentia have a rational relation to the object sought to be achieved by it, its validity
cannot be successfully challenged under Article 14.‖56
He also upheld these views in another case in the Supreme Court.57 In the same case
Chief Justice Patanjali Shastri by referring to some earlier cases tried to make the point
more clear. He opined that:
―if the impugned legislation indicates the policy which inspired it and the object which
it seeks to attain, the mere fact that the legislation does not itself make a complete and
precise classification of the persons or things to which it is to be applied, but leaves the
selective application 01 the law to be made by the executive authority in accordance
with the standard indicated or the underlying policy and object disclosed is not a
sufficient ground for condemning it as arbitrary and, therefore, obnoxious to Article
14.‖58
Justice Subba Rao in his dissenting judgment in Lachhman Das on behalf of Firm Tilak
Ram Bux vs. State of Punjab has observed that:
―….it shall also be remembered that a citizen is entitled to a fundamental right of
equality before the law and that the doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said doctrine. Over emphasis on the
55
Harnam Singh vs. R. T. A. Calcutta Region, AIR 1954 SC 190
56
C. I. Emden vs. State of U.P., AIR 1960 SC 548 (V 47, Ca6): 1960 Cr. L. J. 729 (Vol. 61 CN 239); Ram
Krishna Dalmia vs. Tendolkar, 1959 SCR 279; AIR 1958 SC 538.
57
Kengshari Haldar and another vs. The State of West Bengal AIR I960 SC 457 (V 47, C 78), 1960 Cr. L.J.
654 (Vo. 61, C.N. 233).
58
Kathi Ranning Rawat vs. State of Saurashtra, AIR 1952 SC 123.
62
doctrine of classification or an anxious and sustained attempt to discover some basis

for classification may gradually and imperceptability deprive the article of its glorious
content. That process would inevitably and in substituting the doctrine of classification
for the doctrine of equality, the fundamental right to equality before the law and equal
protection of the laws may be replaced by the doctrine of classification.‖59
If a law deals equally with all persons of a certain defined class it is not obnoxious and
it is not open to the charge of a denial of equal protection on the ground that it has no
application to other persons, for the class for whom the law has been made is different from
other and, therefore, there is no discrimination amongst equals. It is but obvious that every
classification, in some way or the other, produces some inequality. But more production
of inequality is not by itself enough to condemn the classification and thereby the
legislation. It is essential that such inequality, in order to encounter the challenge of the
constitution, must be actually and palpably unreasonable and arbitrary. There may be a
law relating to a single individual if it is made apparent that on account of some special
reasons applicable only to him and inapplicable to anyone else, that single individual is a
class by him. Justice Mukherji observed that:
―….a legislature for the purpose of dealing with the complex problems that arise out of
an infinite variety of human relations cannot but proceed upon some sort of selection or
classification of persons upon whom the legislation is to operate.‖60
The consequences of such classification would undoubtedly be to differentiate the
persons belonging to that class from others, but that by itself would not make the legislation
obnoxious to the equal protection clause. Equality prescribed by the constitution would not
be violated if the statute operates equally on all persons who are included in the group and
the classification is not arbitrary or capricious, but bears a reasonable relation to the
objective which the legislation has in view. Giving his observations Justice Das emphasised
the fulfilment of two conditions so that a test of permissible classification may be carried
out. He laid down:
59
(1963) 2 SCR 353; and also Justice Reddy in Keshvananda Bharthi vs. State of Kerala (Palkhiwala, N. A.,
op. cit., p. 473).
60
Kathi Ranning Rawat Vs. State of Saurashtra, AIR 1952 SC 123.
63
(1) that the classification must be founded on an intelligible differential which

distinguishes persons or things that are grouped together from others left out of the
groups, and
(2) that that differentia must have a relation to the object sought to be achieved by the
Act.61
To be clearer what is necessary is that there must be a nexus between the basis of
classification and the object of the Act.
As a matter of fact a legislation which has to deal with diverse problems arising out of
an infinite variety of human relations must, of necessity, have the power of making special
laws to attain particular objects, and for that purpose it must have large powers of selection
or classification of persons and things upon which such laws are to operate.62 In R. K.
Dalmia's case63 Justice S. R. Tendolkar of the Suprme Court elaborated certain principles
pertaining to the classification. It held that the State can classify persons for legitimate
purposes. It is not necessary that the basis of classification be stated expressly in the law. In
order to sustain the presumption of constitutionality the court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be concerned existing at the time of legislation.
Besides, this presumption cannot be carried too far, i.e. to the extent of always holding that
there must be some undisclosed and unknown reasons for subjecting certain individuals of
corporation to hostile or discriminatory legislation. In the same case Chief Justice S. R. Das
observed that it is now well established that Article 14 forbids class legislation, it does not
forbid reasonable classification for the purpose of legislation.64
Apart from this, article 14 guarantees equal protection to citizens as well as aliens and
artificial or legal persons (a company etc.).65 It guarantees safeguards against
discrimination resulting from State actions and not those of individuals. Besides, Article
61
C.I. Emden vs. State of UP., AIR I960 SC 548 (V 47, C 86).
62
Ameeroomisa vs. Mahboob (1953) SCR 404 (414).
63
Ram Krishna Dalmia vs. Tendolkar, 1959 SCR 279, State of Bombay vs. Balsora, AIR 1951 SC 318.
64
Ibid., (Also Justice Reddy in Keshvanand Bharthi vs. State of Kerala: Palkhiwala, N. A.: op. cit., p. 473).
65
Shiva Pd. vs. Punjab State, AIR 1957 Pjb. 150; (see also AIR 1955 Bomb. 305, AIR 1957 All 552, AIR
1957 Andhra Pradesh 163, AIR 1956 Pepsu 14; AIR 1957 Orissa 56).
64
14 also provides guarantee against discrimination from procedural law in addition of

substantative law
The difference which will warrant a reasonable classification need not be great. What is
required is that it must be real and substantial and must bear some just and reasonable
relation to the object of the legislation.66When a law challenged on the ground that it
has offended against the equal protection principle, the court has to determine the
question whether there is some difference which bears a just and reasonable relation to
the object of the legislation and not to see if it has resulted in inequality.67
To the operation of the clause it is necessary to show that the selection or differentiation
is unreasonable and arbitrary. Besides, 'equal protection' does not insist that legislative
classification should be scientifically perfect or logically complete.68 The legislature has to
judge the classification on the basis of degree of harm. Similarly Article 14 is not intended
to prevent legislatures to enact a legislation to introduce a reform in some of the institutions
only69 or objects70 having common characteristics or in the same way to particular areas71
only. This Article is not at all violated if the legislature, after selecting certain areas and
objects to which the law, at the first instance would apply, and then to empower the
executive to add it the similar objects or areas.
It is, thus, obvious that it is not essential that an enactment should cover entire field of
legislation. It becomes sometimes different to cover each and every aspect of legislation in
an enactment and hence cannot be held to have contravened Article 14 "on the sole ground
that it does not apply to the entire State."72 Similarly the Supreme Court in a reference on
the Kerala Education Bill,73 did not find discriminatory the earmarking some of the areas as
'compulsion areas' for introducing compulsory education in the State. No matter such
classification may affect certain educational institutions in such compulsion areas without
66
Babu Rao vs. State of Bombay Housing Board (1952-54) 2-C.C. 126: (1954) SCR 572, Suraj Mall vs.
Biswanath, (1952-54) 2-C.C. 141: A 1953 SC 545.
67
Cf. Suraj Mall vs. I.T. Investigation Commissioner, A. 1954, SC 545.
68
Kedar Nath vs. State of W. Bengal (1954) SCR 30.
69
Lakshmindra vs. Commissioner, A. 1952 Mad. 613.
70
Biswambhar vs. State of Orissa (1954) SCR 842, Amar Singh vs. State of Raj (1955), 2 SCR 303 (366).
71
Ram Chandra vs. State of Orissa (1956), SCR 346 (354-5).
72
Sri Krishan vs. State of Raj. (1955) 2 SCR 531 (536).
73
A. 1958 SC 956.
65
affecting similar institutions in the other areas. Likewise if a law deals equally with
members of a well-defined class, it is not obnoxious and it is not open to the charge of
denial protection on the ground that it has no application to other persons.74 The Supreme
Court has rightly observed that
―….if there is equality and uniformity within each group the law will not be
condemned as discriminative, though due to some fortuitous circumstances arising out
of a peculiar situation some included in a class get an advantage over others, so long as
they are not singled out of special treatment.‖75
In examining the reasonableness of classification of legislation the court concerned has

to observe certain basic formalities. Before coming to that point it should be noted that a
person who is aggrieved by the classification made by any given piece of legislation can
challenge it.76 He also bears the burden to prove that the classification is unreasonable. If,
however, it appears that the classification is not prima facie justified it is for the State to
satisfy the court regarding its reasonableness.77
The court has to determine it more on common sense than on "legal subtleties",78 It has
to ascertain the policy underlying the statute and the object intended to be achieved by it.79
This object depends on the "title, preamble and provisions of the Act concerned.80 After this
preliminary test the court should ascertain as to whether two conditions have been
fulfilled:81
(a) The classification is founded on an intelligible differentia which distinguishes
persons or things that are grouped;82 and
(b) The differentia must have a rational relation to the object sought to be achieved by
the statute in question.83
74
State of Bombay vs. Balsara, (1951) SCR 682 (708-9).
75
Khandige Sham Bhat vs. Agr. I.T.O., A. 1963 SC 591 (591).
76
Hans Muller of Nuremberg vs. Supdt. Presidency Jail, Calcutta and others, AIR 1955, SC 367.
77
A.S. Kuberr vs. Narain, AIR 1953 Bom. 174.
78
Saghir Ahmad vs. Govt, of U.P., AIR 1954 All. 257.
79
Kangshari vs. State of W. Bengal, A. 1960 SC 457 (464).
80
Kedar Nath vs. State of W. Bengal (1953) SCR 835.
81
Budhan Chodhry and others vs. The State of Bihar, AIR (1955) SC 191, Hanif vs. State of Bihar, A. 1958,
SC 731.
82
Ibid., Ram Kishan vs. Tandolker (1959) SCR 279; Krishna vs. State of Mad. (1957) SCR 399 (414).
66
Only when both these are satisfied the legislation should be declared valid.84 If not so it is
bound to be pronounced as violative of Article 14. Besides, the particular circumstances
existing at the time of enactment of the impugned law have also to be taken into account
while determining the reasonableness of classification.85
2.2.2 Basis of Classification
It is not indeed an easy task to lay down a common formula or criterion as the
basis of classification. The time and circumstances change. With their changing
attitude the basis of classification is bound to change. What is proper and
applicable in today's circumstances may not be wholly suitable tomorrow or what
is applicable to one may not be applicable to others. Further, what is proper at
one place may not be applicable to other parts of the country. It entirely depends
on the object or purpose of the legislation. However, certain common factors
depict the basis of classification.
(1) Geographical
The geographical aspect plays an important role in classifying legislation. On

the basis of geography classification can be made. 86 since the local conditions and
circumstances may be different in different parts of the country, the guarantee of
'equal protection' under Article 14, does not at all prevent the State from applying
different laws to different parts. The important consideration is that it should be
equally administered in that particular area. The Supreme Court has specifically
upheld that there is nothing wrong, per se, in a Central enactment being extended
to certain States only. 87
In order to meet the problem of law and order, the legislature can empower
the executive to make territorial adjustments. Consequently the Government
83
Ram Kishan vs. Tendolkar (1959) SCR 279, Randuregarao vs. A.P.P., SC (1963) 1 SCR 707 (714).
84
Kangshari vs. State of W. Bengal, A. 1960 SC 457 (464).
85
Ram Kishan vs. Tendolkar (1959), SCR 279.
86
Purshottam vs. Desai (1955) 2 SCR 887, State of M.P. vs. Bhopal Sugar Industries, A.1964 S.C.1179
(1181); Bhaiyalal vs. State of M.P., A. 1962 SC 981.
87
State of Punjab vs. Ajaib Singh (1953) SCR 254.
67
can declare an area as a "dangerously disturbed area" on account of

communal riots,88 a border area, due to its delicate situation and strategic
importance, can be declared to be administered under special laws. For
instance, for keeping peace at the borders of India, certain laws apply to that
particular area and as such are not applicable to other parts of the country.
Besides, it is also not necessary that a law should apply to the whole of the
State. For convenience the State can be divided into several geographical
regions or zones and a law may be applicable to one or more of these zones or
regions and not to others, depending upon the peculiar circumstances of the
regions concerned. Such a law would not be in contravention of Article 14. 89
In 1955 the Marwar Land Revenue Act, 1949 was challenged on the ground
that it did not apply to the whole of the province but only to a particular area;
hence it was discriminatory. But the Supreme Court upheld the
constitutionality of the enactment and observed that it being shown that
special legislation had to be enacted for certain areas to meet the special
situation there, the impugned Act cannot be held to be discriminatory. 90
What is required is that any classification on the basis of geography must not
intend to discriminate against a particular race or class of people residing in that
particular area. Otherwise the very purpose of Article 14 would be vitiated and the
concerned legislation would be nothing but invalid.91
(2) Historical
In some cases historical consideration may also be a basis for classification 92,
for example the case of the ex-rulers of the former princely States. According to
Section 87-B of Civil Procedure Code these princes from a class and are entitled
88
Gopi Chand vs. Delhi Admn., AIR 1959 SC609.
89
Ram Chandra vs. State of Orissa, AIR 1956 SC 298; Krishna Singh vs. State of Raj., AIR 1955 SC 795;
Gopi Chand vs. Delhi Admn., A.1959 SC 611 (614).
90
Sri Krishan Singh & others vs. The State of Raj.& others,AIR 1955 SC 7951 Thakur Amar Singhji vs. State
of Raj., AIR 1955 SC 504.
91
Purshottam vs. Desai (1955) 2 SCR 887 (902); Jia Lai vs. Delhi Admn. A. 1962 SC 1781 (1784).
92
Mohan Lal vs. Man Singh; A 1962 SC 73; Bhaiyalal vs. State of MP., A. 1962 SC 981; Lachman vs. State
of Pjb., A. 1963 SC 223 (233).
68
to special personal rights and privileges owing to their historical position. Before
independence they were sovereign rulers who handed over their sovereignty in
return for a Privy Purse and certain other personal rights and privileges. Article 62
of the Constitution makes the point clear by declaring that these rights etc. will
receive recognition. Hence the Supreme Court observes that Section 87-B of C. P.
C. cannot be challenged as discriminatory. 93
In the same way, the Supreme Court did not find the Hyderabad Endowments
Regulations and the rules framed thereunder, as violative of Article 14. Their
constitutionality was challenged on the ground that two different laws are in force
with respect to religious endowments in the two areas of the State of Andhra
Pradesh; one which came to that State from the State of Madras in 1953 and the
other from the former Hyderabed in 1956. The Supreme Court observed:
―Different, though parallel laws in different areas of a State can be sustained

on the ground that the differentiation arises from historical reason and a
geographical classification based on historical reasons can be upheld as not
being contrary to equal protection clause of Article 14.‖94
(3) Difference in Time

The time factor may also be a basis of classification. It is the discretion
of the legislature to determine from what date a law shall be implemented. Such
law cannot be challenged as discriminatory on the ground that it does not "affect
prior transactions."95 Likewise, there is no discrimination if the law applies
generally to all persons who come within its ambit as from the date on which it is
made operative whether with prospective or retrospective effect.96 For fixing rent
and house tax the buildings may be classified on the basis of the year of their
construction-according to their construction before or after a specified date.
93
Mohanlal Jain vs. Ex-Ruler of Jaipur, AIR 1962 SC 73. (Now the 26th Constitutional Amendment has
abolished all the Princely privileges and Privy purses).
94
Disting. Anant Prasad vs. State of Andhra Pradesh, AIR 1963 SC 853.
95
Inter Singh vs.State of Raj. A. 1957 SC 510.
96
Hathising Mft. Co. vs. Union of India, A. 1960 SC 931.
69
(4) Other General Differences
This covers various aspects of the basis of classification of legislation. To

illustrate the point Relations between a Landlord and Tenant sometimes creates a
basis of difference between the buildings of the Government and those of the
private owners. The Rent Control Act is within the limits of article 14 if the
exempted buildings belong to Government 97 or a local authority.98 In view of
giving effect to the Social Security and Labour Legislation in the country it is not
an unreasonable classification if certain cooperative establishments are exempted.
It is necessary so that the provisions of the legislation for the employees' provident
fund may be implemented.99 Likewise, a law regarding Prohibition may make
difference between a civil and military personnels and between foreign visitors
and Indian citizens. 100 The Bombay Prohibition Act, J 949 was challenged on the
ground that it empowered the State Government to permit the use or consumption
of foreign liquor on cargo boats, warships and troopships and military and naval
messes and canteens. It was contended that this concession violated the principle
of equality. The Supreme Court rejected the contention and held that there was an
understandable basis for exemption granted and, therefore, there was nothing
wrong in the legislation according special treatment to persons who form a class
by themselves in many respects.101
In the same way, certain enactments are deemed consistent with article 14 on
the basis of some Social Requirements. Special protection or treatment to certain
persons-lunatics, minors, purdanashin ladies etc.—as under the Indian Contract
Act, will not be void as offending against article 14. Section 197 of Indian Penal
Code which exempts a woman who abets in the offence of adultery was held to be
97
Babu Rao vs. Bombay Housing Board (1954) SCR 572.
98
Venkatadri vs. Tenati Municipality, A. 1956 Andh. 61.
99
Mahamedalli vs.Union of India (1963), II SCA, 77 (86-87).
100
State of Bombay vs. Balsara (1951) SCR 682.
101
Ibid.
70
valid because of the peculiar position of Indian women. 102102 However, this
exemption of women in the offence of adultery has now been withdrawn and they,
like men, will be liable to sue or be sued. Thus equal protection and security of
laws will be given to all under similar circumstances and conditions. A law which
prohibits and penalises bigamous marriages among the Hindus, a while leaves the
Muslim free to contract bigamous marriages does not offend against the equal
protection of article 14. Also this article prevents to make distinction and even
discrimination being made between citizens and non-citizens in the interest of the
good of the State.103
Not only had this but the Supreme Court also upheld the classification
provided by the Hindu Religious Trusts Act (Bihar) for separate trust boards for
Hindu and Jain Religious Trusts. The Sikh Religious Trusts were not covered by
the Act. The court upheld it on the ground that Hindus, Jains and Sikhs differed in
the religious faith, practices etc. hence could be treated differently in this
respect.104 In view of the usefulness to the society the classification of animals
was considered not to be violative of article 14. While a law banned killing of
cows, bulls and calves, no such ban was imposed on the killing of buffaloes and
other animals. It was held to be permissible. 105 To differentiate between a woman
who is a Prostitute and one who is not, in order to keep them at different places or
to treat them in different classes, is not at all contrary to article 14. It is according
to the law if a prostitute, who carries on her business in a busy locality or in the
vicinity of public institutions, is removed from the place or the restrictions are
imposed on her movements.106 Similarly Age forms a basis of classification to the
effect that under the Indian Contract Act a minor cannot enter into a contract until
he attains the age of majority. 107 Sex also plays an important role in the
102
Yusuf vs. State, AIR 1951 Bomb. 470; Gopal Dass vs. State, AIR 1954 All. 80; Bishambhar Singh vs. State
of Orissa, AIR
1954 SC 141; Ramji Lai vs. ITO (1951) SCJ 203.
103
State of Bombay vs. Narasau, AIR 1952 Bomb. 64.
104
Moti Dass vs. Sahi, AIR 1959 SC 942.
105
Quereshi vs. State of Bihar, AIR 1958 SC 731.
106
State of Bombay vs. Balsara (1951) SCR 682.
107
Hathisingh Mg. Co. vs. Union of India, A. 1960 SC 931.
71
classification of an enactment which prevents men or women from service in

certain kind of work.
2.2.3 Other Constitutional Provisional and the Classification

The above discussion regarding classification relates article 14 and some
other enactments. Apart from them some other constitutional provisions have also
authorised the classification of legislation. It is imperative to know such
provisions and their relation with article 14.
First article 15(3) empowers the State to make special provisions for women.
With the result an enactment cannot be challenged simply on the plea that it
"denies equal protection to men." 108
Second by article 15 (4) the State has got ample powers to frame special
provisions for the interest of the members of the Scheduled Castes and Scheduled
Tribes. The Supreme Court has confirmed this view109 by rejecting the contention
against the validity of Section 54 (4) of the Representation of the People Act,
1951. The contention on the ground that it confers a double advantage upon the
member of the Scheduled Castes and Tribes in that they may be returned to the
general seats even though seats have been reserved for them under article 330, and
332, was negatived by the court.
Third article 15 (4) enables the State to enforce reservation of appointments

for the backward classes. This not at all offends article 14.
Fourth article 19 has another scope in not being applicable to aliens, and is
confined to citizens only. It, thus, in itself creates an inequality between citizens
and aliens. To make this point clear: a citizen may challenge the constitutionality
of a statute as being violative of article 19(1) (f), an alien would not so be entitled,
but, for the matter of that, his rights under article 14 have been violated. 110
108
Yusuf vs. State of Bombay (1954), SCR 930.
109
Giri vs. Dora, A. 1959 SC 1318 (1325).
110
Indo-China Navigation Co. vs. Jasjit, A. 1964 SC 1140 (1154).
72
Fifth according to article 291 the ex-rulers were deemed to be a class by

themselves, and, were, therefore, entitled to avail all the immunities conferred by
section 87 B of the Civil Procedure Code.111
Certain other provisions in this reference also speak such classification.

Regarding their tenures article 310 (1) provides special treatment to Government
servants.112 Similarly under article 311 (2) Proviso (c), the President's order, 113113
or the taxation of road transport by a State under Entry 56, List II, cannot be
challenged as violative or contrary to article 14.
2.3 General Application of 'Equal Protection'' Clause
Like substantive laws, all the procedural statutes come within the ambit of
constitutional limitations. As early as 1952 in Anwar
Ali's case Justice Mukherji of the Supreme Court had observed in this reference:
―A rule of procedure laid down by law comes as much within the purview of
article 14 as any rule of substantive law and it is necessery that all litigants,
who are similarly situated, are able to avail themselves of the same procedural
rights for relief and for defence with like protection and without discri-
mination.‖114
The same procedure must exist "for all in similar circumstances" 115 otherwise the
"constitution will strike down the discriminatory procedure." 116 The change in the
procedure made by a statute in respect of offences falling within a prescribed
reasonable classification, "affects all pending cases of that class are tried under the
special procedure, there is no discrimination." 117 No general rule can be laid down
which can be applicable to all cases. A practical assessment of the operation of the
111
Narottam vs. Union of India, A. 1964 SC, 1590; Mohanlal vs. Sawai Man Singh, A. 1964, SC 73.
112
Raj Kishore vs. State of U. P., A. 1954 All. 343
113
Jagdish vs. Accountant General, A. 1958 Bombay, 283.
114
State of W. Bangal vs. Anwar Ali (1952) SCR 284 (322); Meenakshi Mills Ltd. vs. A. V. Visvanath Sastri,
AIR 1955 SC 13, Budhan Chaudhary and others vs. State of Bihar, AIR 1955 SC 191..
115
Suraj Mall vs. I. T. Investigation Comm. (1955) 1 SCR 448.
116
Lachmandas Kivalram Ahuja and another vs. The State of Bom. AIR 1952 SC 25.
117
Kangshari Haldar and another vs. The State of W.Bengal, AIR 1960 SC 457; 1960 Cr. LJ. 654 (Vol. 61,
C.N. 233).
73
law in the particular circumstances is necessary. 118 If an accused is deprived of

equal protection in matters of procedure, it is incumbent on the court to consider:
whether the procedure actually followed did or did not proceede upon the basis of
discriminatory provisions. 119 Simply a threat or possibility of unequal treatment is
not enough to challenge the legislations.
Actually the 'equal protection clause' does in no way guarantee that a Union
law must lay down the same procedure so as to enforce the law in different States.
But according to the nature of the people of the different parts as well as the
existing cirumstances and the needs of the States, a Statewise classification and
different "procedures accordingly will be permissble by article 14."120 The Jammu
and Kashmir Enemy Agents ordinance, which provided a different procedure than
that prescribed in the Cr.P.C. for the trial of 'enemy' and 'enemy agents', was
challenged. The Supreme Court rejecting the contention upheld the:
classification and consequent difference in treatment on the ground that 'enemy'
and 'enemy agents' were clearly defined classes under the ordinance. 121 Where one
procedure is prescribed for every body but the parties are allowed to follow
another procedure if they "voluntarily so elect, the law cannot be said to be
discriminatory."122
Like substantive law and procedural law, taxation law is also subject to
the'equal protection' clause of article 14. 123 Taxation can be struck down as
violative of article 14 if there is no reasonable basis behind the classification made
by it. Section 46 (2) of Indian Income Tax Act which provides for collection of
arrears of Income Tax as arrear of land revenue has been a subject of thorough
discussion in the Supreme Court in a number of cases, Regarding collection of
land revenue the law differs in different States, with the result Income Tax-a
118
Muthiah vs. Commr. of I.T. (1955), 2 SCR 1247 (1263).
119
Kasim Rizvi vs. The State of Hyderabad and others, AIR 1953 SC 156.
120
Purshottam vs. Desai (1955) 2 SCR 887 (902).
121
Rehman vs. State of J. & K. AIR 1960 SC 1.
122
Banarsi vs. Cane Commissioner, A. 1963 SC 1117 (1427).
123
Khandige vs. Agrl. I.T.O., A. 1963 SC 591 (594), Kunathat vs. State of Kerala (1961) 3 SCR 77, State of
M.P. vs. Bhopal Sugar Industries, A. 1964 SC 1179 (1183), State of M.P. vs. Gwalior Sugar Co. (1962) 2
SCR 619.
74
Union tax-was recovered differently in different States. The Supreme Court held
that this difference in recovery machinery was not hit by article 14 because
defaulters are grouped State wise and in each State all defaulters are treated
alike. 124
A Municipally may impose a tax on a part of its area and the other parts can
be left untaxed provided that particular tax relates to a special amenity which has
been provided in that particular part of the municipality. 125
The legislature has got enough powers to determine the manner and rate of
taxation "besides having the freedom to choose the articles to be taxed."126 As to
the selection of articles to be taxed or not is a matter of policy 127 and any
complaint that the legislature has or has not taxed certain articles is not
maintainable. Similarly when there is more than one method of assessing a tax and
the legislature has selected one out of them to strike down the law merely on the
basis that another method would have been more reasonable would be an
unjustified act on the part of the court.128 The Supreme Court has considered it
reasonable to make classification between small and large manufacturers129 for the
purpose of exemption from sales tax. For the same purpose to classify the gold-
smiths into those who make the ornaments by their personal labour or by paid
artisans and those who sell ornaments produced by artisans on a commission
basis130 has been held to be reasonable. For the purpose of tariff, the
classification of tobacco according to the uses to which they may be put has been
upheld by the Supreme Court.131 Thus it is obvious that in matters connected
124
Purshottam vs. Desai, AIR 1956 SC 20; Collector of Malabar vs. Ebrahim, AIR 1957 SC 688.
125
Gopal Narain vs. State of U.P., A, AIR 1964 SC 370.
126
Khyerboni Tea Co. vs. State of Assam, A. 1964 SC 925; Jagannath vs. State of U. P. (1963) 1 SCR 220.
127
Khyerboni Tea Co. vs. State of Assam, A. 1964, SC 925.
128
Sham Bhat vs. Agricultural I.T.O., A. 1963 SC 591 (596).
129
British India Corp. vs. Collector, 1963 SC 104 (107).
130
Epari vs. State of Orissa, (1964) XV STC 461 (466) SC.
131
Jagannath vs. Union of India, A. 1962 SC 148 (150).
75
with the taxation the State is allowed to pick and choose districts, objects, persons,
methods and even rates for taxation if it does so reasonably. 132
Article 14, as is evident, in order to maintain the sanctity of the doctrine of

'equal protection', has provided an implied guarantee of equal access to the courts.
In case any person is deprived of this access to the courts for the vindication of his
legal rights which others have got, there is a denial of the right to sue and be sued
in the same way for the same kind of action. 133
It is rather a pre-condition of equal protection to everybody to approach a
court of law for redressing his grivences. It cannot be denied unless there is any
reasonable basis. Justice Mukherji of the Supreme Court has affirmed this
opinion:
―The meanest of citizens has a right of access to a court of law for the
redress of his just grievances.‖134
Moreover, the right of equal access has to face its own exception in the
practice of providing for trial of certain offences by special courts and under a
special procedure quite contrary to already laid down by the ordinary law of the
land. If there is a reasonable basis for classification, special treatments may be
created for the trial of causes of special nature.135
Further, when a statute creates a right, it itself may also provide a special
remedy and that too through a special forum. In such cases:
―….there is no right to take the matter to the ordinary courts except in
certain cases, e.g. where the special tribunal set up by the statute acts ultra
vires the statute upon which its jurisdiction rests.‖136
The question arises whether provision for special tribunals offends against the
guarantee of equal protection as guaranteed by Article 14. The divergence of
judicial opinion has given several interpretations to the point. Whether a
132
Khyerbani Tea Co. vs. State of Assam, A. 1964 SC 925.
133
Basu, D. D.: 'Commentary on the Constitution of India', Vol. I, V. Ed. (S. C. Sarkar & Sons (P) Ltd.,
Calcutta-12) 1965, p 468.
134
Ram Prasad vs. State of Bihar (1953) A. SC 578.
135
Lachman vs. State of Pjb., AIR 1963 SC 222 (236).
136
Basu, D. D.: op. cit., p. 470.
76
legislation that provides for special procedure for the trial of certain offences is or
is not discriminatory and violative of article 84 of the Constitution, is a question
that should be determined in each case as it arises, for, no general rule applicable
to all cases can safely be laid down. 137 In determining the discriminatory or
violative character of the particular statute providing for trial under a special
procedure the first thing to be seen is whether there is a minor or major difference
between the ordinary procedure and the special procedure. If it is minor "there is
138
no discrimination in the proper sense." On the other hand if it differs
substantially from the ordinary procedure, to the prejudice of the accused, it will
certainty offend against Article 14. 139 In order to avail any such eventuality the
classification should be reasonable, having a rational relationship with the object
of the Act. In addition of this, the legislature may also empower the Tribunal,
specially constituted for the trial of certain kind of offences, to try any other
offence with which the accused may be charged at the same trial, under the
provisions of the general law of procedure i.e., the Criminal Procedure Code. This
will not be a violation of article 14.
Articles 12 and 13 of the Indian Constitution have a direct bearing on Article
14. While the former brings in its ambit not only the legislatures but also all the
"executive and other authorities"140 the latter includes in 'law', any 'order' or
'notification'. It means that all the acts of the State, e.g. legislative, executive or
administrative must not discriminate to any one otherwise that particular act will
be violative of Article 14. It is the administration of a statute, though fair on its
face, which may or may not prove discriminatory. If inequality or injustice results,
it has to be examined whether "an element of intentional and purposeful
discrimination"141 was involved in the execution of that particular statute. If not,
the statute is not violative of article 14. Law itself may be impartial in its
137
Kedarnath vs. State of W. Bengal; (1953) SCR 30; Kangshari vs. State of W. Bengal; A. 1960 SC 457
(459).
138
State of W. B. vs. Anwar Ali (1952) SCR 284 (315, 325, 337), M. K. Gopalan vs. State of M. P. (1954)
SCA (560); Habib Mohd. vs. State of Hyderabad, (1953) SCA A. 787 (795).
139
Lachmandas vs. State of Bombay (1952) SCR 710 (726).
140
Bidi Supply Co. vs. Union of India (1956) SCR 267 (277).
141
Biswambhar vs. State of Orissa, A. 1954 SC 139 (144).
77
appearance but the public authority concerned should not administer it with an
evil eye and on unequal hand. Public officials are presumed to discharge their
duties honestly and in accordance with the law. 142
It, therefore, depends on the person concerned who challenges the 'executive
action' as discriminatory, to prove specifically where the authority has acted "with
an evil eye or unequal hand."143
It has also to be kept in mind that if the officer is authorised by a statute to use
his discretion and he himself acts arbitrarily in exercising the discretion; then the
act of that particular officer can be challenged and not the statute. Then article 14
will be of no use. What the court can do is to protect the aggrieved person from
the unfair exercise of the discretion but not under article. 144 Thus, the principle of
equality:
―…..imposes its demands upon officials; they must be fair, they must favour
no one above another, and are only, to be guided by the equal application of
the law.‖145
Article 14 uses the words 'every person' which in clear terms extends the
same 'protection' to aliens, within the territory of India, as the citizens enjoy.
However, this, in no case, provides the aliens same civil and political rights as
have been guaranteed to the citizens of the country. It is on this account that a
foreigner can be restricted by the State under article 19(1) (e) from settling down
in any particular part of India. To an alien, if he bears no constitutional disability,
the guarantee of 'equal protection' means that the State cannot discriminate against
a person merely on the ground that he is an alien.
Article 14 can be invoked when a person under the employ of the State gets
any discrimination by State's orders, rules and regulations. Such discriminatory
rules can be invalidated146 if the classification made by them is not reasonable.147
142
Panna Lai vs. Union of India, A. 1957 SC 397.
143
Musaliar vs. Potti, A. 1956 SC 246.
144
Dhanraj vs. B. R. Kochar, AIR 1951 Bom. 1332.
145
Finer, Herman: The Theory and Practice of Modern Government (Methuen & Co. Ltd.., London, 1965), p.
717.
146
State of Pjb. vs. Joginder, A. 1963 SC 913.
78
So far as the laying down the qualifications for an appointment is concerned, the
concerned rules and regulations must speak the object to be achieved otherwise
they are bound to be struck down as discriminatory. No doubt the State is
competent enough to make essential the knowledge of the regional language or
adequate experience at the Bar or the knowledge of the local laws for the
appointment to the judicial service, but at the same time, it would be
discriminatory if the State prescribes that "only Advocates practicing in that State
148
High Court shall be eligible." This will debar the Advocates practicing in the
High Courts of other States. No matter they belong to the same class.
In the matter of pay and increment, the State is fully empowered for dividing
the employees doing the same kind of work into superior and inferior classes; with
different pay scales.149 Similarly article 14 does not prevent the State from
providing "better conditions of service for one class of employees who are equal
in pay."150 This would not be discriminatory or unconstitutional in any sense. It is
a fact that in such matters a theoretical inequality is evident but in the interest of
public sometime it becomes necessary for the State to have a choice in the consti-
tution of the services. But there should be no denial of equal opportunity to the
citizens. Besides, it is also not a violation of article 14 if the States make
reservation for backward classes and such reservation results in the denial of
reasonable opportunity for employment to members of other communities. 151 If it
denies equal opportunity, reservation can be challenged.
In the same way, the rules for the termination of the services of the employees
also subject to the 'equal protection 'clause of article 14. While applying such rules
any hostile discrimination will constitute the violation of article 14. An individual
cannot be deprived of his right of access to a court of law for the vindication of his
just grievances. The case is different if there is a reasonable basis for special
treatment.152 The Allahabad High Court153 upholding the constitutionality of Rule
147
Kishor v. UOI, A. 1962 SC 1139.
148
Pandurangarao vs. A.P. S.C., A. 1963 SC 268 (271)
149
Cf. State of Pjb vs. Joginder, A. 1963 SC 913.
150
Ibid.
151
Devadasen vs. UOI (1963) SC (Unrep.)
152
Ram Prasad vs. State of Bihar (1953) SCR 1129.
79
of the U. P. Government Servants' Conduct Rules 154 has considered the

Government officials a class in them due to their official duties. Hence for
redressing their official grievances, they cannot resort of law without prior
permission of the Government. This rule, therefore, was not found violative of
article 14. However, later on the Supreme Court observed quite different from this
judgment:
―….an order issued in pursuance of any such Rule would amount to a

contempt of court being an interference with the administration of justice.‖155
Moreover, articles 32 and 226 have guaranted certain specific remedies to all the
people (including Government servants) to file the writs against any
discrimination. It would, therefore, be unreasonable to cheek a Government
servant to approach the court merely on the plea of the interests of discipline in a
service.
After a study of 'equality before law' and 'equal protection of the law', it is
concluded that Article 10 has guaranted an important fundamental right which has
to be closely and vigilantly guarded. It is also presumed that in its interpretation
the courts "will not adopt a doctrinaire approach which might choke legislation
156
beneficial to the community at large." Practically the Indians have been
enjoying this right to a great extent. From the President or Prime Minister to the
common man all are equal before law. It is evident from the fact that Ex. President
V. V. Giri and Prime Minister Mrs. Indira Gandhi both appeared before the courts
in Delhi and Allahabad respectively in their election petitions. It shows the highest
respect to the rule of law. But on the other hand, sometimes the party in power can
ignore this principle for political considerations. Apart from this, in 1975 when the
victorious hockey team arrived at Madras from Kualalumpur and some of its
members were penalized under customs law, the statement by no less a person
than the Prime Minister herself asking the customs officials to be lenient to the
team, was a shocking incident. It was nothing but a clear breach of the rule of law
153
Aasha Ram vs. Saxena, A. 1962 All. 506.
154
This rule corresponds to Rule 16 of the Central Civil Service (Conduct) Rules, 1955.
155
Pratap Singh vs. Gurbux Singh, A. 1962 SC 1172 (1178)
156
Paylee, M.V.: Constitutional Governement in India, II ed. (Asia Publishg house, Bombay, 1965), p.206.
80
and casts an unhealthy effect on the common folks. No doubt the hockey players
deserved all commendation. They had done remarkably well. But it does not mean
that they should be treated above law.
In the last the right to equality will lose its reality if all the countrymen do not
enjoy equal facilities of access to the courts for the protection of their rights. It
would be possible only when legal assistance is available for all on reasonable
terms. The real equality in the right to 'sue and be sued' in the same manner as
others can be ensured only when the poorer section of the society have equal
access to courts as the richer sections. Therefore, a suitable legislation is necessary
as in England.157 It would be better if Parliament and State Legislatures make such
legislations in order to translate the ideal of equal protection of laws into the realm
of reality for the millions of impecunious countrymen. It means justice must be
cheap and should not be delayed.
Who can challenge that the Indian Constitution is cosmic in the cementing
fullness, but who can deny that even after more than three decades the constitution
itself is seemingly becoming the perpetrator of the capitalist system, the preserver
of the feudal order, the protector of the monopolistic structure and precursor of
potential revivalistic revolution. Naturally no academic much less an academic
coming from a middle class can ignore even at our own cost of his own ignorance
the economic aspect of egalitarian functioning. Hence subsequently we shall
discuss the price that national society has paid for impending the processes of
implementation of economic equality in India.
……………………………..
157
The legal Aid & Advice Act, 1949.
William & Mary Bill of Rights Journal
Volume 13 | Issue 4 Article 7
The Promise of Equality: A Comparative Analysis

of the Constitutional Guarantees of Equality in
India and the United States
Nicole Lillibridge
Repository Citation
Nicole Lillibridge, The Promise of Equality: A Comparative Analysis of the Constitutional Guarantees of
Equality in India and the United States, 13 Wm. & Mary Bill Rts. J. 1301 (2005),
http://scholarship.law.wm.edu/wmborj/vol13/iss4/7
Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/wmborj
THE PROMISE OF EQUALITY: A COMPARATIVE ANALYSIS
OF THE CONSTITUTIONAL GUARANTEES OF EQUALITY IN
INDIA AND THE UNITED STATES
Nicole Lillibridge*
INTRODUCTION
All men are not created equal. This assertion seems wrong, even immoral, as
modem liberal thought has established the inherent, equal worth of every person.
But true equality among people cannot be achieved because there are natural
inequalities among us. We recognize that one individual may have greater innate
literary or athletic talent than another, or superior beauty or strength. These talents,
in a just society, should be rewarded even though they have no moral significance.
Therefore, some measure of discrimination among people is legitimate, and even
mandated under a conception of a just society.' The difficulty in establishing and
furthering such a meritocratic society, however, arises from the pernicious effects
of longstanding illegitimate and immoral bases for discriminating among people,
such as gender, race, and class. Over time, these differences compound, so that the
child born into a relatively privileged family often gains certain advantages without
any demonstration of superior talent, ability, or moral worthiness.2
This Article explores the differing conceptions of equality in the very different
constitutional systems of India and the United States. The respective histories and
predominant religions in each country have shaped divergent views concerning
equality. India's long and complex history of entrenched social hierarchy has led
its people to view the concept of equality as rather collective; in particular, the idea
* The author is a 2004 graduate of the College of William & Mary School of Law. She
is in private practice in Philadelphia, Pennsylvania. She would like to extend special thanks
to Professor Christie Warren for her comments and advice on this article.
1 JOHN RAWLS, A THEORY OF JUSTICE (197 1), reprinted in GEORGE C. CHRISTIE &
PATRICK H. MARTIN, JURISPRUDENCE: TEXT AND READINGS ON THE PHILOSOPHY OF LAW
322 (2d ed. 1995) ("The natural distribution [of innate abilities and the chance of social
circumstance] is neither just nor unjust; nor is it unjust that some men are born into society
at some particular position. What is just and unjust is the way that institutions deal with these
facts.")
2 The morally arbitrary foundations of distinctions among such groups form one kind
of argument against class inequalities. This could be considered a critique of class inequality
at its foundations, as opposed to a present-time conception of the injustice of class inequality,
which would focus on the disparity between a small class of extreme affluence and a large
class of people with little to no wealth or resources.
1301
WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 13:1275
of perfect equality, for many Indians, would chiefly include elimination of caste
barriers and inferiority. In the United States, historical and religious influences
resulted in, and perpetuate, a view focused on equality of individuals. This view
has been described as "equality of opportunity," or as embodying an "anti-
3
discrimination principle."
Every aspect of national expression reflects the self-identification of the people
in a nation as predominantly individualist or collectivist - whether in the areas of
economic policy, foreign affairs, trade, or human rights. This Article primarily
focuses on the issue of class equality, although that focus will hardly prove
distinct. In India, an examination of class inequality must inevitably focus on
caste inequality, yet elements of racial inequality and gender inequality will cer-
tainly intersect. Similarly, in the United States, while the concerns of the poor and
of blacks are not fully aligned, black Americans are disproportionately poor.
Moreover, the American paradigm of individual rights finds its strongest expression
in the politics of economic disparity.
National identification with either of these paradigmatic worldviews -
individualist or collective - and the resulting conception of equality as it existed
at the time of constitution drafting, find embodiment in the documents themselves.
In addition, I would argue that those constitutional imperatives subsequently mold
and shape a national ideology of equality. In particular, India's hierarchical social
order and the historical degradation of certain groups led to compensatory dis-
crimination programs in its constitution. Subsequently, the constitution shaped the
view of social organization, with upper-caste groups now perceiving themselves as
disadvantaged. Established after independence, the Constitution of India reflects the
assumption that Indian society represents inequality, and the provisions regarding
compensatory discrimination programs propose reforms toward that goal, with an
ultimate aim of ameliorating unequal effects.
Americans' belief that their nation is essentially classless has led to a
Constitution uniquely focused on individual rights. An examination of the 14th
Amendment as representative of a color-blind approach toward remedying in-
equalities reveals how the assumption that the United States is a nation of equals has
been used to hamper reforms, in particular by disregarding the apparent effects of
societal inequality and focusing instead on the implementation of a formalistic
antidiscrimination principle. This view allows the effects of real inequality to be
dismissed, at least in part, as representing the natural distribution of innate talents
and abilities of each individual, rather than viewing existing equality as a product
of unequal societal treatment over time.
' See John Hasnas, Equal Opportunity,Affirmative Action, andthe Anti-Discrimination

Principle:The PhilosophicalBasisfor the Legal ProhibitionofDiscrimination,71 FORDHAM
L. REV. 423, 429-41 (2002).
1302
2005] THE PROMISE OF EQUALITY
This Article first explores the consciousness of equality in India. Part I

discusses the historical and religious roots of India and the influence of colonization.
The Hindu caste system is addressed in Section A, while Section B details the role
of colonialism in India's history. India's modem constitutional representations of
equality are explored in Part II, including the Indian Supreme Court's role in
furthering these constitutional aims. Part III of this Article focuses on the United
States's individualistic approach to equality. Particular religious and philosophical
influences on the framing of the Constitution are addressed in Section A. The
conception of equality expressed in the !Constitution itself, including subsequent
amendments and U.S. Supreme Court jurisprudence, is the focus of Section B. A
comparative analysis of these systems, provided in the Conclusion of this Article,
demonstrates that a state's view toward equal rights impacts its ability to move
toward greater economic and social equality and fulfill the mandates of its foun-
dational documents. The Conclusion further discusses recommendations for greater
progress in all systems striving for a better model of equality and, ultimately, more
just societies.
I. INDIA'S HISTORICAL AND RELIGIOUS ROOTS
While the caste system and its origins in Hinduism provide the central focus of
this examination of India's view of equality and social reform, it would be
dismissive and oversimplified to treat the system itself as disconnected from a
greater system of belief. Moreover, India's religious history and social history are
closely related. As one of the world's oldest civilizations, the entire Indian sub-
continent weathered many social changes and was exposed to the influences of
several religions and cultures.4 For centuries, it has been a place of very diverse
religious and ethnic groups, yet Hinduism has remained the dominant religion
despite the encroachment by outside religions, 5 such as by Christian missionaries,
who have been active for many centuries.6 Internal religious movements, such as
Buddhism, Jainism, and Sikhism emerged as strong religious influences but did not
threaten the strength of Hindu belief to a serious degree.'
Hinduism has been described as an "experience" or an "attitude of mind," rather
than a doctrinal code.' Astounding varieties of spiritual belief are encompassed
under the overarching label, including polytheism, pantheism, monotheism, as well
' See A.L. Basham, Introduction to A CULTURAL HISTORY OF INDIA 1, 1-4 (A. L.
Basham ed., 1975).
' See A.L. Basham, Conclusion to A CULTURAL HISTORY OF INDIA, supra note 4, at
487, 494.
6 S. Radhakrishnan, Hinduism, in A CULTURAL HISTORY OF INDIA, supra note 4, at
60, 62.
7id.
8 Id. at 63.
1303
as ancestor-worship or idolatry.9 Such diversity can be explained, in part, by the

emphasis the Hindu tradition places on tolerance of other views" and the encour-
agement of discussing reform."
A. The Hindu Caste System
Central to Hindu belief are the ideas of samsara,the nearly unending circle from
death to rebirth, and karma, the law of moral cause and effect. As Radhakrishnan
explains, "The Hindu social code does not ask us to impose an unnatural order on the
world. We discover the intentions of nature in the constitution of men and women
and it is our duty to act agreeably on them."'" Radhakrishnan seems to refer to the
system of the varnas, or the caste system, which has its roots in Hindu cosmology.
Dharmaprovides the central theme of the Hindu sastras,or ancient texts. While
dharma can have various meanings, it basically refers to duties or codes of conduct
mandated by the cosmic order. The moral prescription of dharma focuses on two
aspects of human life: life stages 3 and class. 4 Dharma dictates varying duties for
people depending on their position in society. According to the creation story of
Hinduism, the primordial body of Brahma (or God or Vishnu, depending on the sect
of Hinduism) created the world by dividing his body into four sections.15 Each
section represented a varna, or caste, into which people would be divided. The
priests (Brahmans) were at the top of the hierarchical order, followed by the warriors
9 Id. at 67.
Id. at 70. Radhakrishnan wrote:
A religion that is based on the central truth of a comprehensive
universal spirit cannot support an inflexible dogmatism. It adopts an
attitude of toleration not as a matter of policy or expediency but as a
principle of spiritual life. Toleration is a duty, not a mere concession.
In pursuance of this duty Hinduism has accepted within its fold almost
all varieties of belief and doctrine and treated them as authentic
expressions of the spiritual endeavor, however antithetic they may
appear to be. Hinduism warns us that each of us should be modest
enough to realize that we may perhaps be mistaken in our views and
what others hold with equal sincerity is not a matter for ridicule.
Id.
Id. at 71 ("Trying to impose one's opinions on others is neither so exciting nor so
fruitful as joining hands in an endeavour to attain a result much larger than we know.").
Id. at 75.
12
3The obligations of a person depended on his life stages, which progressed from "active
participation in the affairs of the world to a life of retirement and contemplation." STEPHEN
A. TYLER, INDIA: AN ANTHROPOLOGICAL PERSPECTIVE 77 (1973).
14 Id.
15 NICHOLAS B. DIRKS, CASTES OF MIND: COLONIALISM AND THE MAKING OF MODERN
INDIA 19 (2001).
1304
(Ksatriyas), the merchants (Vaisyas), and finally the laborers or servants (Sudras). 6
Each of these groups held different societal obligations and each of these divisions
came to be known by occupational functions, 7 which also reflect the caste
hierarchy's underlying obsession with purity. The preoccupation with the idea of
purity is based on the central belief of maintaining order in carrying out the
sacrificial ritual.' 8 Tyler describes the role of the ritual in Hindu society as integral.
Indian thought has allowed only two opposed possibilities: the

correspondence between cosmic order and human experience is
mediated through the social order, or it is expressed directly as
a relation between the individual and the cosmos. This oppo-
sition has far-reaching consequences. If the correspondence is
mediated through the social order, then the individual is not a
datum of society, but if the correspondence is between the
individual and the cosmos, then society is not a datum of
individual experience. Indian thought thus establishes two
mutual exclusive categories: the individual is either totally
subject to society, or he is totally free of it. There is no middle
way ....
Axiomatic in Indian thought is the notion that ritual is the

connection between the cosmos and the social order. To
perform a rite correctly is to participate directly in the cosmic
process."
This explanation of the ritual process demonstrates another differentiation among

the castes. The priests perform the rite, the warriors commission it, and the mer-
chants provide the requisite goods and services to carry it out.20 As the Shudras may
6 Id. Despite wide recognition of the Brahmans as the superior caste, there have been
claims to this privilege by the Ksatriyas, which are supported by ambiguities in the creation
accounts. TYLER, supra note 13, at 81. Moreover, the merchant class is perceived to be far
below the Ksatriyas, although their historical success in business has led them to marked
economic success in some instances despite their clearly inferior status in the social
hierarchy. Id.
"7 The occupational associations may have been imposed subsequent to the original
creation myth by theologians (i.e., Brahmans). TYLER, supra note 13, at 23. The difficulties
this uncertainty poses for historical study are addressed infra Part I.B.
Is DmKS, supra note 15, at 57.
19 TYLER, supra note 13, at 24 (citation omitted).
20 DIRKS, supra note 15, at 20-21.
1305
WILLIAM & MARY BILL OF RIGHTS JOURNAL (Vol. 13:1275
not participate at all, their role in the order is to facilitate the ability of the other
groups to continue the ritual, by acting as their servants. 2
Tyler elaborates on the other category of Indian thought - individualism:
In contrast to this necessarily hierarchic structure of society

is the maximal freedom and egalitarianism entailed by the view
that the individual is the locus of the correspondence between
macrocosm and microcosm. Just as the very notion of society
implies hierarchy, the notion of free individual implies total
egalitarianism. Where there are only free individuals there is no
society. Consequently, the notion of freedom in India has
always had an extra mundane reference and has always involved
a denigration of ritual .... [This view no doubt] represents an
archaic mythological opposition between man in society and
man in a state of nature .... The origin of society entails the
death of freedom and the subjugation of the individual.22
The social hierarchy of the caste system can be envisioned, therefore, as inextricable
from the essential practice of Hinduism itself.
Indian society cannot be cleanly divided into four castes, nor do these castes
adequately categorize all of Hindu society. First, the creation legend does not
account for the "outcastes" or "untouchables," who identify themselves as the
"Dalit" classes.23 While the origin of these people in the creation story is disputed,
21 ld. at 21.
22 TYLER, supra note 13, at 24-25 (citation omitted).
"3 There are various ways in which to refer to this group today, in large part due to greater
caste consciousness arising from the reforms of the twentieth century. Briefly, the
constitution outlawed untouchability as a practice in 1955, giving rise to the term "ex-
Untouchable." Eleanor Zelliot, Introductionto VASANTMOON, GROWINGUP UNTOUCHABLE
ININDIA: A DALIT AUTOBIOGRAPHY, at xi (Gail Omredt trans., 2001). After the constitution
instituted the practice of compensatory discrimination, discussed in detail infra notes
92-108 and accompanying text, the term "Scheduled Castes" came into common usage. Id.
Beginning in the 1970s, the term "Dalit" arose to refer to the ex-Untouchables, a name
meaning "downtrodden or broken down but used with pride as a self-chosen name that
reflects no idea of pollution and can include all who identify themselves as oppressed by the
caste system." Id. Those identifying themselves in this manner use this label as a break from
the hierarchical caste model's focus on pollution, but also to break away "from the patronage
of Gandhian ideology." Id. Gandhi used the term "Harijan," meaning "people of God" to
refer to ex-Untouchables. Id. at x. The term was seen as patronizing by some, probably
because of disagreement with his views on caste reform. Id. Further discussion of Gandhi's
view of the Dalit groups will be discussed infra notes 57-64 and accompanying text. For
these reasons, where possible, the ex-Untouchables will be referred to as Dalits.
1306
it appears that they were not part of the creator's body.24 Ghurye noted that "the
ideas of untouchability and unapproachability arose out of the ideas of ceremonial
purity, first applied to the aboriginal Shudras in connection with the sacrificial ritual
and expanded and extended to other groups because of the theoretical impurity of
certain occupations. 25 The treatment of this group of people represents the ultimate
in disparate treatment among the groups of Indian society.26
Second, and perhaps more importantly, the four idealized Hindu castes do not
reflect the true complexity of the Indian social hierarchy. Hierarchies exist in part
because of the progressive duties arising out of life stages. Moreover, operating
parallel to the four-fold caste system, regional and local differences greatly modified
this basic model. The thousands of sub-castes within each larger caste group have
been said to derive from hypogamous, or inter-caste, marriages.27 For this reason,
an understanding of the origins and role of the caste system generally does not
provide a very accurate picture of the ways in which groups identified themselves
and interacted in India either historically or today. However, the widely accepted
(though doubtful) theory that hypogamous marriages resulted in the myriad social
divisions "demonstrates the pervasiveness of an ideal order based on the assumption
that the underlying relativity of human nature should be materially expressed in
hierarchical social groups."28
B. India's History and the Effects of Colonialism
The foregoing history of Indian religion and civilization presents only one
possible understanding of the roots of Indian social stratification. Others argue that
the effects of British colonizers forever altered the world's view of India, and India's
view of itself.29 Reasons for this shift are manifold, but one key reason is the source
24 G.S. GHURYE, CASTE AND RACE IN INDIA 307 (5th ed. 1969); see also supra note 15
and accompanying text.
25 GHURYE, supra note 24, at 180.
26 The term "untouchable" accurately represents the wider societal perception of this
large group of people. "Prabu mentions that untouchability refers to denying even human
status to a group of human beings ...... SUNEILA MALIK, SOCIAL INTEGRATION OF
SCHEDULED CASTES 4 (1979) (citing P. N. Prabu, Report of the Seminar on Casteism and
Removal of Untouchability 104, Indian Conference of Social Work (1955)). The
untouchables often face treatment worse than animals. Id.
27 TYLER, supra note 13, at 84.
28 Id. Tyler notes that further evidence of this conceptualization of society is shown in
the apparent inconsistency of these theories with the reality of the world. Id. When
contradictory facts emerged to refute this theory, Hindu thinkers did not alter their model of
the world; they altered the facts. Id. The multitude of groups continued to be "attributed to
lapses in the observance of the rules of dharma." Id.
29 For an extended and comprehensive discussion of these issues, which cannot be fully
explicated here, see generally DIRKS, supra note 15.
1307
of historical documentation of much of India's pre-colonial past. The view of India

as adopted by Britain and the West draws from narrow sources - primarily the
Hindu "law books," which were the work of Brahman priests and early European
explorers.3 ° The early studies of Indian culture provided by the British reflect their
own Western biases, but also the biases of the Brahmans, as most early British
ethnographers only gathered information from this group and relied on their earlier
interpretations of scripture. 1 While this phenomenon provides a compelling inquiry
into the effects of colonization on culture, the difficulty of fully understanding
Indian culture became critical at the time of constitution drafting. As an indepen-
dent India sought to define itself, the years of colonization ultimately helped further
entrench Indians' essentially collectivist view of human society, and, of course, the
role of equality in that society.
Flawed accounts of Indian history likely resulted from both innocent and
nefarious reasons. Very early explorers to India did not mention caste, or did not
do so in great detail.32 Louis Dumont in Homo Hierarchicusprovided one of the
first historical records of Indian history.33 Dumont asserted that "a Western
audience. . . will misunderstand caste and hierarchy, because of the modern denial
of principles that seem opposed to individualism and equality."34 That the British
seemed perplexed by Indian social structures is not entirely surprising, nor is it
surprising that they were very concerned with understanding how class operated,
considering the importance of class in nineteenth-century Britain. Prior to British
rule, the caste system functioned as only one of several ways of expressing identity.
On local levels, the influence of one group over another changed frequently. These
groups included temple communities, territorial groups, and agricultural or trading
collectives.35 The power of these groups could rise or fall with their fortunes, or
30 CYNTHIA TALBOT, PRECOLONIAL INDIA IN PRACTICE: SOCIETY, RELIGION, AND

IDENTITY IN MEDIEVAL ANDHRA 48 (2001) ("Recent research on the early colonial period
has, however, increasingly called into question the accuracy of images of 'traditional' South
Asia derived from ethnographies and brahmanical literature."). Talbot generally limits the
scope of her book to the region of Andhra, one of the least-studied areas of India, but today
it represents India's largest state. In fact, such recent scholarship represents a sharp change
from early histories, which attempted to characterize the entire subcontinent as a single
cultural and social entity, despite the incredible diversity of views and social arrangements.
31 See DmKS, supra note 15, at 19-31 (discussing the flawed historical record due to
Western and Brahmanical biases).
32 See id. at 20.
33 See Louis DuMONT, HOMO HIERACHICUS: THE CASTE SYSTEM AND ITS IMPLICATIONS
(Mark Sainsburg et a]. trans., 1980). Dumont lived in India as a missionary, which presents
difficulties apart from those of elite Brahman biases or colonial perspectives.
34 DIRKS, supra note 15, at 4 (discussing Dumont's belief that the extreme individualism
of the West is a roadblock to understanding caste).
" DIRKS, supra note 15, at 11-14.
1308
20051 THE PROMISE OF EQUALITY
even by royal decree.36 Faced with such a complex society, it is no wonder that
British leaders welcomed James Mill's account of Indian society.37 Mill derived his
view of caste from a British translation of The Laws of Manu (Manu Dharma
Sastras),written by Brahman priests and scholars, which focused on the topics of
varna - the social responsibilities of different castes. 38 The text's eventual position
as a canonical explication of Indian society, of course, helped to solidify a Brahman-
oriented worldview as emblematic of Indian society generally.39
Revisionist examinations of Indian culture assert that "brahman dominance
was greatly heightened by colonial practices of the nineteenth century."' Dirks
argues that caste is not essential to Indian society, history, or tradition - contrary
to popular belief and much scholarship. He argues that British rule "ma[de] caste
the central symbol of Indian society."'" The colonizers did not create it, but under
colonial influence, it became the main, if not the only, hierarchical social system
of organization, superceding other, complex variations of traditional Indian social
relationships of identity and community.42
At the beginning of the twentieth century, the British preoccupation with caste
spread to Indians in general, as they too began to view it as a primary institution of
Indian social organization.43 Caste became central to nearly every political or social-
reform position. Part of this phenomenon was the legacy of intentional British
influence on Indian doctrine. Biased presentations of India's pre-colonial past were
not necessarily the unintentional misunderstandings of aliens to the social system.
By making caste the core institution of Indian society, the colonizers strengthened
and justified colonial rule."
During the last stages of colonization, caste was used to denounce Indian
society, "particularly when it was seen as a force impeding social equality and the
better treatment of women in Indian society."45 Further, it was denigrated for its
divisiveness and "portray[ed] ... as a barrier to the gradual unification of the Indian
36 Id. at 13.
37 Id. at 31. After Mill, a British journalist, published his book, he was offered lifetime
employment by the East India Company. His account refuted any suggestion that Indian
society represented any meritorious values, despite never visiting the country or speaking any
of its languages. Id. at 32.
38 Id. at 34.
" Id. at 34.
40 TALBOT, supra note 30, at 48.
4' DIRKS, supra note 15, at 5.
42 id.
41 Id. at 232.
44Id. at 14-15.
45 Id. at 232. The role of women in Indian society poses interesting questions in terms of
an Indian view of equality. Women did not have a prominent role in the traditional view of
Indian society, and even if they held superior positions in terms of caste, they nonetheless
were consistently inferior to men, at least men of their own caste. Id. at 72.
1309
people under the essentially beneficent, modernizing rule of the British." 46 As Sumit
Surkar remarked, "the social injustice argument, while not absent, remained
47
secondary.
The ultimate result of these influences is that Indians have come to view their
history as representing a hierarchical social order, in which Indians frequently
identify themselves as members of a caste group rather than individuals. 8 Suneila
Malik, in 1979, discussed a study aimed at improving social mobility among the
Dalit castes through education.4 9 The results indicated that many people identified
themselves by caste, but that the less educated a member of a Scheduled Caste was,
the more likely he was to identify himself as of a lower caste.5 0 Malik also docu-
mented findings regarding the degree of respect afforded to certain Dalits. Studies
found that while Chamar schoolteachers garner a higher degree of respect than their
Dalit caste usually affords, these individuals still gamer much less respect than
teachers of higher castes.5" As indicated by B.S. Cohn in 1955, "Education is an
individual achievement, but even educated Chamars cannot escape an awareness
that mobility for them, too, must be a group phenomenon." 52 Although one might
expect some improvement in the perception of Dalits since these studies were
published, there is evidence that identification with one's caste may have grown
even greater.5 3 Whether imposed by Brahman bias or colonial power, this self-
identification had no greater impact than on the caste-reform movements of the
twentieth century and the drafting of the Constitution of India.54
H. INDIA'S MODERN CONSTITUTION AND CASTE-REFORM MOVEMENTS
As India gained its independence from colonial rule, re-establishing Indian

society required a vision of the history of Indian society. The influences described
in the previous section helped shape that national story, resulting in much conflict
in determining how to address the inequalities of caste in the constitution. As Nehru
46 Id. at 232.
47 SuMrr SUKAR, WRITING SOCIAL HISTORY 365 (1997).
48 Dirks argues that British influences made caste the essential symbol of Indian social
organization, but he acknowledges that Indian history demonstrates that hierarchy and
rankings of social groups have played a significant role. See DIRKS, supra note 15, at 14.
49 MALIK, supra note 26, at 44-45.
'0 Id. at 45.
S1 Id. at 52.
52 Bernard S. Cohn, The Changing Status of a Depressed Caste, in VILLAGE INDIA 53,
74 (McKim Marriot ed., 1955).
" Even as Dalits gain greater levels of education and success, the rise of violence by
upper-caste Indians suggests there may have been a rise in caste consciousness among the
more privileged castes. See infra note 103 and accompanying text.
54 See MALIK, supra note 26, at 6-7.
1310
explained: "The conflict [of reform efforts] is between two approaches to the
problem of social organisation, which are diametrically opposed to each other: the
old Hindu conception of the group being the basic unit of organisation, and the
55
excessive individualism of the west, emphasizing the individual above the group.
The debate over how to constitutionalize equality in a caste-based system can be
broken into two camps, best represented by their leaders. These contrasting posi-
tions regarding caste and caste reform continue to define the debate to this day.56
Mahatma Gandhi argued that the inequalities faced by Dalits would be best
remedied by a "change of heart" among caste Hindus.5 7 While early on he criti-
cized the poor treatment of "Harijans" (as he called the group of ex-Untouchables),
Gandhi hesitated to condemn the use of caste as a valid social hierarchy, instead
looking for ways to improve upon the existing hierarchy.58 He wanted to reinstate
the"imagined pure state of Hindu society," composed of four distinct castes.5 9
While this ambiguous position may have meant that he proposed a society based
on current occupational talents, he likely envisioned a society based on birth.
' 6°
Gandhi "subscribed to the view 'once born a Brahmin always a Brahmin.'
Dirks notes: "[Gandhi] felt that caste as a ranked structure of groups was bad but
that the principles of vama and asrama (stage of life) on which caste was based,
and of which caste could be seen as a degraded form, were noble and well worth
reviving as ideals."'" His position on caste provided an interesting conception
of the possibility of equality among unequals. Furthermore, Gandhi's view that
caste was an integral part of Indian society and ultimately defensible, led him
55 JAWAHARLAL NEHRU, THE DISCOVERY OF INDIA 245-46 (Oxford Univ. Press 1985)
(1946).
56 The debate between Gandhi and Ambedkar is more salient than ever. While Ambedkar
was convinced that political identification with one's position would allow for social
reform, ultimately requiring conversion from Hinduism, Gandhi was very concerned that
such identification would lead to inter-caste conflict. DIRKS, supra note 15, at 277. Caste
violence is as widespread today as it has ever been; in some regions, the violence has
increased. Id. at 278.
57 Zelliot, supra note 23, at x. As previously noted, many Dalits felt Gandhi's
approach
was patronizing.
58 DIRKS, supra note 15, at 233.
59 GHURYE, supra note 24, at 404-05. Ghurye argues that a return to the four-caste
division would be unwise, unworkable, and pointless. He finds no modem justification for
a reorganization in order to incorporate the Dalits or to streamline the castes back into four
manageable groups, which was essentially Gandhi's position on caste. The rationale based
on occupation appears useless, and the same problems with caste would recur if individuals'
occupations were dictated by birth, especially in light of the problems arising from inter-caste
marriages. Id. at 406.
60 Id. at 405.
1311
to oppose further politicization of caste groups. 62 As such, he strongly opposed the

more radical and generally more popular views of Dr. B.R. (Babasaheb) Ambedkar, 63
64
which largely shaped the view of caste in India's modem constitution.
Ambedkar viewed caste as an "impediment to social justice, equality,"65 and as
a social construct developed by Brahmans to further their own interests. Later,
according to his view, the legal text of Manu gave the caste system its religious
justifications.6' Ambedkar advocated for a separate electorate, in large part because
of his distrust of majoritarian politics. 67 He did not believe that majorities could
elect minority representatives who would truly further the interests of the Dalits.
For Ambedkar, to accept minority political representation would itself be a con-
cession to caste hierarchy. 68 The Communal Award of 1932 was passed in response
to Ambedkar's movement toward a separate electorate for Dalits.69 Yet, Gandhi's
fierce opposition to such a separate electorate led him to announce a fast until
death.7 ° Political pressure arising from Gandhi's fast led to the compromise of the
Poona Pact, which kept a communal electorate, but increased the number of seats
for Dalit representatives. 7 1
More than a debate over politics, the debate between Gandhi and Ambedkar can
be seen as one attempting to define Indian society itself. As discussed earlier, the
62 MALIK, supra note 26, at 3. Gahdhi opposed both parties based on caste and separate
electorates focused on caste representation. Id.
63 Ambedkar was at least more popular among the Dalits. The introduction to the auto-
biography of Vasant Moon - an example of a Dalit who rose to success and influence -
characterizes Ambedkar as a "hero so important he is described as a 'wave,' and surely no
despised group has ever had such a meaningful leader as [Ambedkar] was (and is) for
awakened and ambitious Dalits." Zelliot, supra note 23, at ix. Moreover, as Dirks points out,
"[diespite continued resentment and debate on the part of some, there has been general
unanimity about the importance of constitutional provisions and guidelines concerning
reservations for scheduled castes and tribes." DIRKS, supra note 15, at 279. These reser-
vations form the core of the constitution's compensatory discrimination program, which was
proposed and included by Ambedkar. Id.
6 Ambedkar is known as the "father" of the Constitution of India. Id. at 265.
65 Id.
66 Id. at 266-67.
67 Id. at 270-71.
68 Id. at 270.
69 Id. at 269.
70 ld.
71 Id. Also resulting from the Poona Pact negotiations was a resolution outlawing
untouchability. This ended discrimination regarding Dalit use of public wells, schools, and
roads, as well as the demanding of temple entry for Dalits. Gandhi supported the temple
entry provision, but Ambedkar viewed this change in position as an attempt to include
untouchables in a system that would continue to subvert their role in society despite their
new entry into Hindu temples. At this point, Ambedkar began to grow more hostile toward
Hinduism itself. Id.
1312
role of Hinduism has played a very essential and influential role in Indian society.
For Gandhi, "[c]aste [had] nothing to do with religion. 72 Late in life, Ambedkar
came to believe that caste could only be eliminated by purging society of the
Brahmans. This would require a revolution in the way the holy scriptures were read,
and his argument questioned the moral basis of Hinduism itself. In fact, two months
before he died, Ambedkar converted to Buddhism despite his longstanding secu-
larism, and called on all Dalits to do the same. He realized that "as an untouch-
able, that he could neither undo nor escape the horrible embrace of Hinduism and
caste society. 73 The nuanced arguments of some, including Gandhi, that caste,
Hinduism, and Indian society were all separable constructs rang hollow to
Ambedkar, a Dalit himself.74
As its primary drafter, Ambedkar's greatest impact on the Constitution of India
was the allowance for positive, or compensatory discrimination in favor of the
Dalits. 75 In these provisions, he demonstrated his conviction that the Dalits "could
only thrive through constitutional negotiation around their status as an oppressed
and disenfranchised minority. ' 76 Indians, in accepting his influence on the draft
constitution, embraced this view.
A. India'sModem Constitution
The debate between Gandhi and Ambedkar represents the clearest sides of the
caste-reform movement. Prior to drafting the constitution, it was widely acknowl-
edged that the caste system required change, if only as a reaction to the constant
claim by the colonizers that Indian society was incompatible with modernity. 77 It
should be noted that there are two kinds of possible change in the caste system.
First, there is positional mobility, which focuses on the individual's ability to
transcend caste barriers.7 ' A second kind of change - structural mobility -
subverts the heredity-based hierarchy itself, and therefore leads to structural
change.79 Although it is widely accepted that social mobility in traditional Indian
72 DIRKS, supra note 15, at 267 (quoting Mahatma Gandhi, A Vindication of Caste,
HARUIAN, July 18, 1936, reprinted in 1 DR. BABASAHEB AMBEDKAR, WRrINGS AND
SPEECHES 83 (1979)).
" DIRKS, supra note 15, at 271.
74 Id.
71 Id. at 278.
76 Id. at 265.
" Id. at 11. "Caste is a specter that continues to haunt the body politic of postcolonial
India. Whether in constitutional claims about the abolition of caste discrimination or in
political claims about the formation of the national community, it has become the subject of
national shame." Id. at 17.
71MALiK, supra note 26, at 2.
79 id.
1313
society was very closed and caste-determined, this is belied by evidence of

occasional movement of an individual to a higher (or lower) caste. However, such
an individual success story would be a "positional and not structural change. 80
After achieving their independence, Indians pushed for structural change.81
The Constitution of India clearly reflects a group-oriented approach to equality.
The modem democratic constitution came into effect on January 26, 1950.8" Its
preamble pledges to secure justice, liberty, and equality and to promote fraternity.83
As one scholar has noted:
Justice is specifically described to be of three types, not only

political but economic and social as well. Equality is of not only
equal opportunity but also of status. Justice and Equality, as thus
defined, between them, cut the very roots of caste. Citizens of
India... avowed that the purpose of their political association
is to guarantee to every citizen not only equality of opportun-
ity, but absence of unequal treatment in social and economic
matters. 84
Articles 14-18 of the Constitution of India address elements under the rubric
"Fundamental Rights - Right to Equality."85 These protect individuals from
discrimination on the basis of caste. Article 14 states: "The State shall not deny
to any person equality before the law or the equal protection of the laws within
the territory of India. ' 86 Article 15 prohibits discrimination in the access to
public facilities, but reserves power for the government to make "any special
provision for the advancement of any socially and educationally backward
classes or citizens or for the Scheduled Castes and the Scheduled Tribes."87 The
80 Id.
" See id. at 6-7.
82 See This Day in History: Republic of India Born: January26, 1950, http://www.his-
torychannel.com/tdih/tdih.jsp?month=10272953&day= 10272991 &cat= 10272946 (last visited
Feb. 22, 2005).
83 INDIA CONST. pmbl.
84 GHURYE, supra note 24, at 409.
85 INDIA CONST. arts. 14-18.
86 Id. at art. 14.
17 Id. at art. 15, cl.4; see also GHURYE, supra note 24, at 410. While explicitly focused
on the issue of caste in several places, the Constitution of India actually refers to class in
several ways. First, at times reference is made to "backward classes," which is defined as
"socially and educationally backward," and interpreted as referring to outcaste and low-caste
citizens. See id. at 412. This label is also used in Article 340, which addresses provisions for
educational positive discrimination. INDIA CONST. art. 340. A second manner in which lower
castes are labeled is found in Article 46, which requires the state to protect "weaker sections
of the people," and when considering this provision's context, seems to refer to the same
1314
practice of untouchability is prohibited under Article 17, and Article 18 abolishes

the use of titles.88
In addition to these clear fundamental rights provisions, numerous other
provisions complement the idea of equality in broad terms. Article 38 includes the
following provision: "The State shall, in particular, strive to minimise the
inequalities in income, and endeavour to eliminate inequalities in status, facilities
and opportunities, not only amongst individuals but also amongst groups of people
residing in different areas or engaged in different vocations."89 It should be noted,
however, that Article 38 appears in Part IV, Directives of State Policy. The articles
in this section are "not... enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making laws." 9
Article 46 also falls under this rubric in demanding protection of the "weaker
sections of the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of exploitation." 9'
Although this appears as an unenforceable state directive, more clear provisions
appear elsewhere which firmly entrench compensatory discrimination for the
Scheduled Castes. 92 Article 46 is furthered by Article 340, which provides for an
appointment of a presidential commission to investigate the conditions of the
backward classes in order to make policy recommendations. 93 Article 335 gives
additional special consideration to Scheduled Castes by reserving to them a certain
proportion of government posts - generally highly desirable, much sought-after
group as "backward classes" although there is some ambiguity. See GHURYE, supra note 24,
at 413. Finally, and most important for constitutional purposes, the so-called "Scheduled
Castes" are given special consideration in political representation and in hiring for
government positions, among other things. This term, although undefined in the constitution,
refers to Dalit groups and its scope is determined by the President, as provided in Article 341
of the constitution. See GHURYE, supra note 24, at 306.
88 INDIA CONST. arts. 17, 18.
89 Id. at art. 38, cl. 2 (emphasis added).
90 Id. at art. 37.
91Id. at art. 46.
92 Entitled, "Part XVI: Special Provisions Relating to Certain Classes," Articles 330-42
carry out the aims of provisions related to equality. For example, the Scheduled Castes, as
categorized by the President, are given proportional representation via reserved seats in both
houses of the legislatures and in the state legislatures, but these reservations were scheduled
to cease after 1960. India Cen. Acts No. 43 (1950), The Representation of the People Act,
New Delhi, 12 May 1950. The descheduling effort has not begun. The sharp rise in violence
against scheduled castes - including murder, rape, and arson - have eliminated the driving
argument for the descheduling program - that untouchability no longer existed. INDIA
CONST. arts. 330-42. See DIRKS, supra note 15, at 280.
93INDIA CONST. art. 340.
1315
positions.94 The system of reservations remains one of the most hotly debated
aspects of the general compensatory discrimination program.
The caste-reform approach of the constitution has not been uneventful. In 1990,
sixty-three students committed suicide by self-immolation and nearly 100 others96
made attempts. 95 Another 100 were killed in confrontations with police at protests.
The cause of these demonstrations was Prime Minister V. P. Singh's long-awaited
implementation of the 1980 Mandal Commission recommendation in the early
1990s, which imposed quotas for the "backward classes" in government employ-
ment and the higher levels of education. 97 The Commission recommendation
essentially criticized the approach of equality of opportunity, asserting that "the
mere prohibition of discrimination ... [was] insufficient to remedy the profound
social effects of the caste system." 98 The Report claimed: "People who start their
lives at a disadvantage rarely benefit from equality of opportunity ... Equality of
opportunity is also an asocial principle, because it ignores the many invisible and
cumulative hindrances in the way of the disadvantaged." 9 Litigation challenging
the report resulted in three months of oral argument before the Indian Supreme
Court in 1992.'1° The court approved several basic principles regarding affirmative
action implementation. 0 ' Additionally, it held that the reservation programs should
not be regarded as an exception to the constitutional protection of equality, but
10 2
rather as a means of accomplishing true equality.
Part of the impetus for the continued opposition to reservation programs lies in
the growing insecurity of upper-caste students regarding their future ability to
succeed."3 Many opponents of reservation policies also believe the policies are
colonial in character. The first such policies were actually developed under colonial
rule.' °4 As noted by Andrd Bdtaille, an influential writer on caste inequality:
It is true that the British policy of pitting caste against caste, and
community against community in the name of justice and
fairplay, aroused widespread resentment and hostility, but it did
not create the kind of response that has now come to the surface.
14 Id. at art. 335.

95 DIRKS, supra note 15, at 275-76.
96 Id.
97 id.
98 Clark D. Cunningham, Global Views: Affirmative Action: India'sExample, C.R.J. 22,
23 (Fall 1999).
IId. (quoting the Mandal Commission Report) (alteration in original).
io See Indra Sawhney v. Union of India, 80 A.I.R. 1993 S.C. 477.
101 Id.
02 Id. at 477, 539.
103DIRKS, supra note 15, at 276.
o Id. at 289.
1316
Perhaps Indians of an earlier generation could never feel towards

their alien rulers the sense of outrage that their descendants now
10 5
feel towards the leaders they have themselves freely chosen.
The persistent complexity of the caste system throughout India presents another
problem arising from the system of compensatory discrimination. In attempting to
separate out the classes that qualified as backward for ameliorative action by the
state, India faced the same problems the British colonizers did in attempting to
understand and classify the Indian castes comprehensively. The first commission
charged with categorizing eligible groups for favorable treatment produced a list
of 2,399 backward categories for advancement." °6 The problem, as for the British,
was that categories and social and political power of certain castes varies from
locality to locality, and region to region within the subcontinent. Concerted efforts
by colonial ethnographers to fit Indian society into a uniform social order did not
succeed, and these problems were compounded by great social and economic
variations within each caste group.107 Today, the government's attempt at positive
discrimination makes this task of categorization one of far greater political con-
sequence than the colonial attempt at a census.'0 8 While this focus on group
categorization may be envisioned as one of logistics, it seems also to speak directly
to the desire to organize society in collective, rather than individual, terms. The
Indian government has been presented with no easy task, yet they have persisted in
their attempts to achieve equality for the Scheduled Castes.
II. THE HISTORIC AND RELIGIOUS TRADITION OF AMERICA
The United States has followed an ideology of individualism beginning from the
founding of the nation. The influence of this belief in the power and importance of
the individual as the core political and social unit in this country has pervaded every
issue of national interest."' The uniquely American conception of individualism
1o5 Andrd B6taille, Caste and Reservations: Lessons of the South Indian Experience,
HINDU, Oct. 20, 1990.
107 Id.
log Id.
109 A comprehensive treatment of this assertion would be much more extensive than that
provided here. I intend to demonstrate this assertion by a few key examples, rather than an
exhaustive history. Many factors contribute to the American focus on individualism that will
not be explored here: the immigration experience, the rise of urban life and industry, the ideal
of the family farmer, and the frontier experience, among others, have contributed to this
national dogma, and each has been explored by others in some detail. See, e.g., MICHAEL J.
PIORE, BEYOND INDIVIDUALISM 110 (1995) (describing the transformative importance of the
frontier, due to its isolation from society, marked by a struggle of each man against the natural
1317
provides the basis for our acceptance of capitalism, the extensive individual free-
doms we enjoy,"' our emphasis on private property rights," our religiousness as
compared to other modem, liberal societies,' 12 and our very democracy."' In fact,
the concept of the individual as the paramount social unit, and the belief in maxi-
mizing individual freedoms, in large part explain the division of the electorate into
two separate parties to this day. The absolute belief in individualism emerges as a
defining marker of the ways in which Americans perceive themselves as a nation.
At the same time, Americans also envision their nation as one embodying the
ideal of equality, but in many instances, the concept of equality conflicts with the
significance placed on the individual and his or her rights and freedoms. In contrast
to the Indian view of society, which rests in large part on a sense of an individual's
duty to others, the American view tends to speak in terms of freedoms or rights.
Naturally, such a vision of society has resulted in a much different conception of
equality in the United States - one focused on equal opportunity and increasingly
world as complementing an individualist, Lockean sense of the world). Moreover, the

implications of this view are embodied in our culture. For example, the American excessive
consumer culture can be viewed as emblematic of our views on individualism. Id. at 110.
110 See generally David Abraham, Liberty Without Equality: The Property-Rights
Connectionin a "Negative Citizenship"Regime, 21 LAW&SOC. INQUIRY 1 (1996). Abraham
provides a compelling historical account that ties American ideals of liberty and individual-
ism as together shaped by (and shaping) private-property ideology and jurisprudence.
America... is a society of abundant individual freedoms but with little
collective organization, political purpose, or moral compass. America
seems a world of sovereign individuals.., in which any search for the
common good of [its citizens] is undermined. This has much to do with
America's diversity and with our negative, property-based conception
of freedom - our Bill of Rights liberties - and our relative lack of
positive, citizenship-based goals.
Id. at 2-3. Of course, most defenders of individualism would greatly oppose Abraham's
assertion that this approach is either amoral or that this approach disadvantages the common
good. See, e.g., ALEXANDER M. BICKEL, THE MORALITY OF CONSENT (1975); RICHARD
POSNER, THE ECONOMICS OF JUSTICE (1981).
. See, e.g., Abraham, supra note 110.
12 PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE
DISTANCE 261 (2003) (citing TED G. JELEN, To SERVE GOD AND MAMMON: CHURCH-STATE
RELATIONS IN AMERICAN PoLrIcs 7, tbl. 1.1 (2000)).
11 The guiding standard of "one man, one vote," as elucidated in Reynolds v. Sims, 377
U.S. 533 (1964), demonstrates the connection between individualist orientation and democ-
racy. For a discussion of the Voting Rights Act of 1964 and the implications of granting
racial classifications paramount importance for these purposes in a color-blind society, see
ANDREw KULL, THE COLOR-BLIND CONsTTUTION 210-24 (1992). See also Samuel
Issacharoff, The EndangeredCenterin American Politics,46 WM. &MARYL. REV. 415,428
(2004) (discussing the ways in which the "one man, one vote" principle has been used, in
practice, to dilute the votes of minority groups due to gerrymandering).
1318
defined by the rhetoric of "personal responsibility."' 1 4 Americans, by and large,

perceive their society as classless and their law as "color-blind.""' 5 This idealistic
view shapes the public discourse, but these assumptions are challenged in moments
of stark public awareness of inequality. Such disjunction between the ideals that
have become operating assumptions and the reality of great inequality molded the
ways in which constitutional law approaches equality and the ways in which our
society attempts to redress those inequalities.
In the following section, the sources and the implications of ideology and the
resulting impact are explored. Section A investigates the role of prevailing religious
and philosophical ideals at the founding of the nation, which provides much insight
into the way our current Constitution views religion. In Section B, the historical ebb
and flow of the views toward individualism and the impact on views toward equality
are analyzed. Much of the constitutional doctrine of equality in the United States
rests not on the text of the Constitution, but on subsequent interpretations of the
document by the Supreme Court. Therefore, this Section focuses on three key
periods in which a collective view of equality - sometimes referred to as an egalitar-
ian view - has come to the fore, at least for a historical moment. These key periods
occurred during the Civil War, during the Depression and New Deal era, and during
the civil rights movement of the 1960s. This Section primarily addresses the after-
math of one of these moments - the civil rights movement - and how its legacy
of affirmative action challenges American views toward individual opportunity.
A. The Religious Foundationsof America
The original colonists, as every American schoolchild should know, came to this
nation seeking greater freedom of religion. The Puritans exhibited "two of the most
enduring views of colonial America: America as a haven of religious freedom, and
America as a Christian Nation."'" 6 Yet, despite popular opinion, the religious beliefs
"' See, e.g., Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 42 U.S.C.);
Personal Responsibility, Work, and Family Promotion Act of 2003, H.R. 4, 108th Cong.
(2003); Personal Responsibility, Work, and Family Promotion Act of 2002, H.R. 4737, 107th
Cong. (2002); see also Pamela Yip, Bush: Take Responsibility for Savings; But Many
Consumers Won't Manage TheirMoney Well, CriticsSay, DALLAS MORNING NEWS, Jan. 26,
2004; Presidential Biography: President George W. Bush, The White House, at http://
www.whitehouse.gov/president/gwbbio.html (last visited Jan. 27, 2005) (describing the
President's reputation as a compassionate conservative shaping public policy "based on the
principles of limited government, personal responsibility, strong families, and local control").
115See KuLL, supra note 113, at 1.
116 FRANK LAMBERT, THE FOUNDING FATHERS AND THE PLACE OF RELIGION IN AMERICA
1 (2003) (providing a historical account of the complex ways in which religious beliefs and
reforms have influenced our civil society).
1319
of these settlers, at least the Puritan founders of New England, did not mirror those
found in the Constitution drafted by a subsequent generation.
Although they arrived in order to establish a religious community, the colonists
had no doubts that theirs was the one true religion, and hence they often squelched
religious dissent by expulsion or violence against those who deviated from this
view." 7 The Puritans, or those Lambert terms the "Planting Fathers," as distin-
guished from the Founding Fathers, drafted a Constitution in 1639 affirming their
intent to form a Christian nation." 8 The purpose of the government they established
was "to mayntayne and presearve the liberty and purity of the gospell of our Lord
Jesus which we now professe."'" 9 They adhered to a dogma in which "an individual
could do nothing to effect his or her own salvation."'' 20 God had chosen a group of
them, "God's Elect," and unless admitted to join this group of people, a person had
no hope of salvation.' 2' Moreover, the Puritans believed their organization in the
New World was divinely ordained, and that their society must reflect God's will.
As such, they believed they were bound together in a "social covenant," under the
divine grace of God. 2 2 They designed their towns as "'Corporate' communities,"
in that they required some sacrifice of an individual's freedom in the interest of
community "holiness, peace, and order."' 123 In business, the priority of community
over individual autonomy led them to value fairness of wages and prices over
profits; violators of this principle were brought into court for violation of the
social covenant.' 24
The religious views of these early Americans would undergo radical changes
before the founding of the republic, leading to a very different constitutional regime
than one might expect given the Puritan origins of American society. These changes
included two principal religious and philosophical transformations - the Great
Awakening and the Enlightenment. Each of these changes transformed the Puritans'
community-oriented view of a just society into one focused on the individual, and
these new ideas found their expression in our Constitution. The rise of the
117
SCHUCK, supra note 112, at 261 (citing DIANA L. ECK, A NEW RELIGIOUS AMERICA:
HOW A "CHRISTIAN COUNTRY" HAS Now BECOME THE WORLD'S MOST RELIGIOUSLY
DIVERSE NATION 36-40 (2001)). Eck is a leading scholar on the religious diversity of India,
which rivals America in terms of such diversity. Id. at 417.
118LAMBERT, supra note 116, at I (quoting FUNDAMENTAL ORDERS OF CONNECTICUT
(Jan. 14, 1639), reprinted in DOCUMENTS OF AMERICAN HISTORY 23-24 (Henry S.
Commager ed., 7th ed. 1963)).
119 Id.
120Id. at 79.
121Id. at 78.
122Id. at 79.
123Id. at 80 (citing KENNETH LOCKRIDGE, A NEW ENGLAND TOWN: THE FIRST HUNDRED
YEARS 16-17 (1970)).
124 Id. at 80-81. The view that economic exchanges should be governed by moral law, rather
than market forces, had widespread and significant support among Puritan believers. Id.
1320
evangelical faith, known as the Great Awakening, demonstrated a shift toward

individualism in the way Christians thought about their world and their society.
Departing from the prior emphasis on Christian society and community, the evan-
gelical preachers emphasized the primacy of an individual relationship with God.'25
The movement also challenged the established authority of existing parishes, intro-
ducing economic free-trade rationales into the religious sphere. In fact, Adam
Smith's Wealth of Nations greatly influenced the role religion ultimately played in
American society; he embraced a view of free trade in religion as fostering a stronger
religious attitude and being less dangerous to democracy than an officially establish-
ed religion.2 6 The Great Awakening resulted in a competitive market for religious
127
views and resulted in more emboldened parishioners all over the country.
The radical ideas of the Enlightenment provided another departure away from
early American society and toward one centered on the individual, and like the new
evangelical movement, adherents to this philosophy placed new reliance on the
potential for the individual to find his own truth. One of the most prominent and
influential thinkers of this era was John Locke. Locke's essentially objectivist
positions about the individual's relationship with the external world formed the basis
for the American tradition of liberalism. 128 He believed the world was viewed as
evidencing uniform truths no matter the individual perspective. 29 Those who
adopted these principles are often labeled Deists. 3 ° Adherants emphasized the
principles of rationality, rather than divine "revelation," and the ideal of nature over
biblical writings, as the lens through which to view God. '' Thomas Jefferson called
125 LAMBERT, supra note 116, at 145. ("While Protestants had always preached salvation
by faith alone and the priesthood of the believer, the revivals drew out the 'individualist logic
of Protestantism . . . further than ever before."') (quoting GORDON S. WOOD, THE
RADICALISM OF THE AMERICAN REVOLuTION 145 (1991)) (alteration in original).
126 Id. at 9 (citing ADAM SMITH, 2 AN INQUIRY INTO THE NATURE AND CAUSES OF THE
WEALTH OF NATIONs 797 (R. H. Campbell & A. S. Skinner eds., 1981)); see infra notes
134-38 and accompanying text (explaining how these ideas led to the adoption of the
Establishment Clause).
127 LAMBERT, supra note 116, at 128-29.
128 See generally James R. Beattie, Jr., Taking LiberalismandReligious Liberty Seriously:
Shifting Our Notion of Tolerationfrom Locke to Mill, 43 CATH. LAW. 367 (2004).
129 PIORE, supra note 109, at 110. Piore describes the "national ethos" as paralleling this
Lockean view of the world and the "strong sense of individuality that seems to accompany
it." Id. Together with a relatively individualist strain of Protestant religions and "their
emphasis on the direct and unmediated relationship between the individual and God," the
combined impact of these ideas is expressed in the emphasis our nation places on the
individual. Id. This is especially interesting in light of the Hindu-based view toward truth.
See supra note 10 and accompanying text.
130 English Deism: John Locke, Internet Encyclopedia of Philosophy, at http://
www.utm.edu/research/iep/d/deismeng.htm (last visited Feb. 23, 2005).

131 LAMBERT, supra note 116, at 159. A Deist may prefer to refer to the ultimate goal as
a search for truth, rather than a search for divine enlightenment.
1321
himself a Christian, but his beliefs were akin to secular humanism.1 32 Today, this
doctrine could be defined as elevating human reason over divine revelation, relying
on humans to resolve mankind's problems, and presenting beliefs characterized
as "ethical relativism."' 133 Many other Founding Fathers - including Benjamin
Franklin, Thomas Paine, John Adams, Alexander Hamilton, James Madison, and
John Jay - adhered to the principles of the Enlightenment, promulgated by such
thinkers as John Locke, Francis Bacon, and Isaac Newton. 134 These views, not those
of Puritan society, were expressed in the American Constitution.'35
Although great tensions emerged between those subscribing to Enlightenment
ideas and those involved with the evangelical Christian movement, the groups
worked together to forever alter religion in this country by their combined effort to
separate church and state.'36 Arising out of the belief of the individual - as either
the focus for salvation or as the source of spiritual truth through independent
rationality - the evangelicals 137 and those allied with secular humanist thought
pushed forward the Establishment Clause. 3 Today, the United States has a more
total separation of state and religion than other modem societies 139 and yet has a
more active religiousness than those societies. 14 The great constitutional
132 See Paul Kurtz, In Defense of Freedom of Conscience:A CooperativeBaptist/Secular

HumanistDeclaration,Council for Secular Humanism, at http://www.secularhumanism.org/
library/fl/kurtz_16-1.1.html (last visited Feb. 23, 2005).
133LAMBERT, supranote 116, at 279 (citing John Murrin, Religion and PoliticsinAmerica
from the FirstSettlements to the Civil War, in RELIGION AND AMERICAN POLrrlCS: FROM THE
COLONIAL PERIOD TO THE 1980s, at 19-43 (Mark A. Noll. ed., 1990)).
'34 Id. at 161; see also id. at 175.
"3 Id. at 161 ("[T]he United States was conceived not in an Age of Faith such as that of
the Puritan Fathers but in an Age of Reason," a period which takes its very name from
Paine's criticism of Christianity.).
136 Id. at 178-79.
13'The evangelicals likely supported the non-intervention of the state in religious affairs
for two reasons. First, as mentioned, their beliefs were in many ways against any religious
establishment as they implored the public in sermons to question church authority and find
their own relationship with God. Second, these teachings did not win the evangelicals any
favor with the leaders of established churches, and many prominent religious figures called
for government regulation of "Pedlars in Divinity." Id. at 128 (quoting BOSTON WEEKLY
NEWS-LETITER, Apr. 22, 1742).
138 U.S. CONST. amend. I, cl. 1.
139 SCHUCK, supra note 112, at 261 (citing Peter L. Berger, Foreward to CHARLES L.
GLENN, THE AMBIGUOUS EMBRACE: GOVERNMENT AND FAITH-BASED SCHOOLS AND SOCIAL
AGENCIES, at xi (2000)). Of course, Adam Smith would argue that the Free Exercise Clause,
coupled with the prohibition on government regulation, has fostered greater competition in
the exchange of ideas to the benefit of both religion and of government. See supra note 126
and accompanying text.
'4 For more on the religious-marketplace-of-ideas theory and a discussion of how it has
worked to foster a more religious society, see ROGER FINKE & RODNEY STARK, THE
1322
implications of this ideological focus on the individual, so connected to these

normative views, were not at all limited to the role of religion.
B. The IndividualistConstitution
The U.S. Constitution grew out of both the belief in the individual as the basic
unit orf reason and the act of civic participation. The Bill of Rights focuses almost
exclusively on individual freedoms and individual rights.'41 The Constitution as a
whole demonstrates a faith in individualism in its rigorous limitation of government.
This distrust of a government may have grown out of early Americans' experiences
with the English monarchy, but it also evidences a great respect for the individual,
which is supported by their religious and historical moment in time.
While these principles need not be incompatible with the ideal of equality, the
Framers rejected inclusion of the principle, both explicitly and implicitly. Jefferson
was unable to include his "self-evident truth" of the inherent equality of all men.
In fact, the Framers intentionally omitted this passage.'42 Certain phrases in the
Constitution's Preamble seem to invoke an ideal of equality. Itspeaks of
"establish[ing] justice" and "promot[ing] the general Welfare." 143 It
should be
noted, too, that the emphasis on freedom and rights in the Constitution implicitly
rejects the ideals of the individual's duty or responsibility, which would better align
with a worldview based on collectivism, community, and true equality.
The ways in which individualism has been enshrined in Americans' views of
themselves and the world, in our Constitution, and in the resulting legal regime, has
CHURCHING OF AMERICA, 1776-1990: WINNERS AND LOSERS IN OUR RELIGIOUS

ECONOMY (1992).
141See U.S. CONST. amends. I-X.
142 Even if it had been included, the Framers' concept of the rational individual was likely
limited to an image of a white, property-owning male. Not only was the institution of slavery
conspicuously absent in this foundational document for modem, liberal democracies, but
also serious discussion was given to granting the vote only to property-owning males. See
generally Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41
STAN. L. REv. 335 (1989). It was thought among many of the Framers that those men
without property did not have a sufficient stake in the operation of government to allow them
a vote. Id.
'43U.S. CONST. pmbl. While an argument may be made that these do represent ideals of
society, this does not seem to explain how Americans have come to view their society as one
of equality. I would argue that Jefferson's inspirational words in the Declaration of
Independence actually provided the basis for this principle. His assertion, "[T]hese truths
[are] self-evident, that all men are created equal," offered at the defining American moment
of revolution from tyranny, has proven too attractive to be diminished by its glaring absence
from the Constitution. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). More
importantly, as will be discussed infra Part III.B. 1,the ideology of individualism puts forth
an ideal of equality, even if it is not explicit.
1323
had great implications for the movement toward greater equality since the Founding
and it continues to shape national debate. Initially, the emphasis on individual
freedom in our legal structure necessarily conflicts with the notion of social equality
at some point. One's freedom, for example, to dispose of one's property as one
would like contradicts the very idea of paying taxes to provide for the needs of the
community. While many valid arguments have been made against the evils of
strong government and its ability to levy taxes on its citizens, at some point the need
to provide for the "general welfare" will require an infringement on individual
liberty. For the most part, the perception of Americans that serving the individual
provides the greatest good for society eliminates conflict with these values, at least
in terms of the majority representation in government. However, at times of
economic or other crises, the values of individualism and equality clash head on.
As David Abraham points out: "The argument that liberty without equality is of
minimal value and a great risk comes up during nearly every period of social
upheaval."' 144 In the following sections, this Article explores the ways in which the
conflict between individualist and collectivist ideals in the interest of greater
equality has impacted the American constitutional tradition over time. In particular,
these sections focus on those times of social unrest which have led to widespread
movements toward greater equality, demonstrating that the American concept of
individualism is not static, nor immune from conflicting values simultaneously held
in American self-perceptions.
1. The Civil War
Undoubtedly the greatest moment of social unrest in U.S. history was the Civil
War. It can be viewed, as can be most social movements in our history, as a
challenge to the ideal of individualism. Several factors relevant for the purposes of
this Article led to the war itself. First, the abolitionist movement provides an
example of a collective recognition of injustice, which worked to eliminate the
ability to hold property in human beings. Throughout the Civil War, "[a] coalition
of radical Republicans, abolitionists, and free soilers (alternatively, radical
bourgeois, southern black workers, and elements of the northern working class)"
organized to achieve a shift from an entirely negative view of liberty.' 45 Second, the
central competing values advanced by the Confederacy espoused the principles of
individualism. Consistent with the Enlightenment ideals of the Founding Fathers,
Southerners argued that their private property rights were an essential component
" Abraham, supra note 110, at 9 n.24 (stating that the periods of the New Deal and the
civil rights movement are examples of times when these values collided).
45 Id. at 11. A positive view of rights would be more aligned with a collective view of
social organization because such rights would diminish the role of the individual as the
primary actor in and beneficiary of society.
1324
2005] THE PROMISE OF EQUALrrY
of liberty. 1 6 The South also advanced the argument of "states rights," which can be
viewed as an outgrowth of a limited government ideal, premised on the primacy of
the individual.'4 7 Third, the culmination of the War led to the 14th Amendment,
finally establishing a place for the concept of equality in the Constitution, although
this embodiment may have been less than wholehearted and still wedded to the ideal
of individualism.'4 8 While the ideal of equality for mankind and the concept of the
United States as a unified nation prevailed, it was short-lived.
Following the War, the country underwent a "counter-revolution of property' 4 9
that reinforced and strengthened the prior, prevailing view of a government based
on negative rights and property rights. In interpreting the new 14th Amendment,
the Supreme Court in the Slaughter-House Cases held that it maintained, rather
than eroded, the autonomy of the States as actors, effectively rolling back any
conception of a duty of the federal government to police the states. 5 ' Later, the
Court nullified the portion of the Civil Rights Act of 1875 that required equality in
public accommodations because it would impair the individual rights of private
property owners.'
Although many Americans believe, and much scholarship suggests, that equality
is a foundational principle of the United States, this idea is not found in the original
Constitution. In fact, the Convention "neglected to reaffirm Jefferson's paradoxical,
self-evident truth."' 5 2 The principal of equality was first constitutionalized with the
Civil War Amendments. Most importantly, the 14th Amendment provided:
All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
146 See id. at 10-13.

147 See id.
148 See discussion infra notes 151-53 and accompanying text. Interestingly, this time
period also produced the first provisions in the Constitution that undermined the autonomy
of the States and, in contrast with the original document, extended federal power rather than
limited it. See U.S. CONST. amends. XIII-XV.
"49 W.E.B. DuBois, BLACK RECONSTRUCnON IN AMERICA 580-636, 670-710 (S.A.
Russell Co. 1956) (1935).
"' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 83 (1873); Abraham, supra note 110,
at 14-15.
1'1 Civil Rights Cases, 109 U.S. 3, 17 (1883).
152 KULL, supra note 113, at 7.
1325
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws." 3
The promise of "equal protection of the laws" forms the core of the constitutional
approach toward equality. This language provides the most individualist notion of
equality possible - the law shall not treat each individual different from the next.
Moreover, after the ratification of these amendments, the protections they ostensibly
afforded to former slaves and other black Americans began to be limited by the
Supreme Court.
Most notably, Plessy v. Ferguson'54 upheld that separate-but-equal standard
legitimizing segregation.' 55 Although historically repudiated, Justice Harlan's
dissent in Plessy continues to influence the discourse on equality. Harlan rejected
the Court's view that racial discrimination was a justifiable basis for classification
of people and behaviors, unless that discrimination was unreasonable as determined
by the Court. 156 Instead, Justice Harlan proposed a bright-line rule that all classif-
15 7
ications based on race are unconstitutional.
In respect of civil rights, common to all citizens, the Constitution

of the United States does not, I think, permit any public
authority to know the race of those entitled to be protected in the
enjoyment of such rights ....
...There is no caste here. Our Constitution is color-blind, and

neither knows nor tolerates classes among citizens. 8
Justice Harlan's opinion revived earlier arguments about the proper effect of the
14th Amendment.' 59 While never explicitly adopted, Justice Harlan's viewpoint
153 U.S. CONST. amend. XIV, § 1.

114 163 U.S. 537 (1896).
151 Id. at 543.
156 Id. at 555 (Harlan, J., dissenting). As Kull writes, the "rule of constitutional law, and
no other, will explain every Supreme Court decision in the area of racial discrimination from
1896 to the present." KuLL, supra note 113, at 118.
Plessy, 163 U.S. at 555 (Harlan, J., dissenting).
158 Id. at 554, 559 (Harlan, J., dissenting).
159 Wendell Phillips proposed, at the end of the Civil War, a nondiscrimination view of
federal protection for black Americans. His proposal would have explicitly prevented the
government from classifying people based on race, and although widely publicized, it was
rejected. KULL, supranote 113, at 3-4. The proposal was rejected in part because Southern
representatives felt more comfortable if the amendment only prevented unreasonable racial
classifications. See id.
1326
would reemerge late in the twentieth century when the Court faced the issue of
affirmative action, or governmental recognition of race to benefit minorities.
The extension of greater protections to disadvantaged groups during times of
crisis, only to abandon such efforts in less turbulent times, is a pattern that can be
traced at least from the time of the Civil War. Abraham notes that in spite of these
periods of minimization of individualism, negative rights, and property rights in
favor of greater social goods, the United States has never moved in this direction for
a significant period of time. 6" While the political discourse certainly focuses on this
tension in values, this situation is reflected and furthered by the law.' 6 ' The
reemergence of individualism, negative rights, and property rights continued for
decades, finally reaching its zenith with Lochner v. New York. 62 Here, the Court
completely embraced the formalities of equality surrounding the freedom of contract,
completely disregarding the real social contexts of the bargaining parties. 16 3 The
worldview embraced by the Court in Lochner, adopted by the poor, immigrants,
and elites alike, held that "the breadth of property holding made the United States
a beacon."' 6
Indeed, this common individualist argument, often espoused today, advances
the idea that grave economic injustices are beneficial to both society and individuals.
In this way, distributive inequalities gain moral righteousness, which allows both
the poor and the wealthy, the white and the black, to embrace an unequal system
wholeheartedly. Of course, the argument wins such support because it embraces
the very ideals on which the nation was founded. The Great Depression proved to
be another time when the moral foundation of individualism began to rest on
160 See Abraham, supra note 110, at 2.

161 See id. at 1 (arguing that the law, together with politics and history, has influenced our
nation to the detriment of our "social state").
162 198 U.S. 45 (1905) (holding that the state could not impose a maximum work-week
labor standard because it would intrude on the freedom of contract between employee and
employer). At the time, the decision was consistent with other court decisions by the states.
Abraham, supra note 110, at 18 n.59. As one scholar has stated, the Court aimed to "annex
the principles of laissez-faire capitalism to the Constitution and put them beyond the reach
of state legislative power." Id. at 18 (quoting EDWARD CORWIN, THE TWILIGHT OF THE
SUPREME COURT 78 (1934)).
163 Abraham, supra note 110, at 18. Indeed, a formalistic view of equality indicates the
continued primacy of the value of freedom or individualism. As with the modem Court's
approach toward discrimination jurisprudence, discussed infra Part III.B.3.b, a focus on the
freedom of each person to bargain independently for advantageous terms is analogous to
addressing the presence or absence of intentional discrimination without addressing real and
apparent discriminatory results. Both approaches begin with the assumption that each person
holds an equal place in society, otherwise such apparent, unequal results would be morally
unacceptable.
'64 Abraham, supra note 110, at 17. This defense of serious, apparent economic inequality
has been made numerous times. See, e.g., POSNER, supra note 110, at 17.
1327
shaky ground. To espouse the view that a just system should allow for greater
equality among its citizens would undermine the sense of America as a meritocracy,
where hard work is rewarded and anyone can achieve the highest levels of wealth
and success.
2. The New Deal and the Rise of the Social State
The economic crisis of the Great Depression led to much social unrest.
Unsurprisingly, it remains the greatest period of class-consciousness in the history
of America, likely because the promises of individualism - opportunity and
potential for great wealth gained through self-determination and hard work - had
never rung so hollow to so many. The resulting reforms of Roosevelt's New Deal,
especially the social safety net of welfare, held the promise of being permanent
changes in the best interest of society as a whole.165
Of course, the concept of welfare directly contradicted the ideology of the
individual. An individualist view, at least in its pure form, would argue that the
concept of welfare would undermine the principles of a meritocracy. The idea that
the state should provide for its indigent citizens directly conflicted with the moral
ideology of individualism. Robert Reich provides the contrasting moral argument
that emerged from the New Deal era (and the subsequent War on Poverty): "In
America work is a citizen's most fundamental economic responsibility. It is the
essence of the Protestant ethic, the criterion for being considered a 'deserving'
member of society. Once this responsibility is fulfilled, the burden shifts back to
society."'" Reich calls a person's willingness to work as implicating the "moral
core [of] American capitalism."167
'
This view presents a collectivist-oriented
position, but one that is especially palatable due to its appeal to the normative
arguments underlying the belief in individualism. If an individual can work, this
moral core responds that the individual should be able to get a job, that a full-time
job should be enough to support a family, and that people should be able to advance
165 The recognition of unions as powerful, useful players in the marketplace also
provided workers greater equality at the bargaining table and protections from the political
actors. The empowerment of labor was "quite a collectivist achievement, providing a
countertendency for Americans who 'grew up in a society which stressed the ideals of
classlessness, individual initiative, and opportunity."' Abraham, supra note 110, at 22
(quoting Derek Bok, Reflections on the Distinctive Characterof American Labor Law, 84
HARV. L. REV. 1394, 1402 (1971)). Moreover, union activity was not confined to the
individualistic ideals of higher wages; in fact, unions "have historically been at least as
concerned with justice and equity in the workplace as with the level of compensation as
such." PIORE, supra note 109, at 13.
"6 Robert B. Reich, Introduction to MAKING WORK PAY: AMERICA AFTER WELFARE, at
vii (Robert Kuttner ed., 2002).
167 Id.
1328
further to the extent that they can by virtue of their own moral ability.'68 Reich's
view represents the ways in which the New Deal altered the American view toward
equality, and made the notion of equality of opportunity more realistic for many.
Although the social reforms of the era began to fade as President Roosevelt
focused on winning World War II,169 elements of the welfare state remain today,
albeit radically diminished in recent years. 7 ° Under President Reagan, who saw the
welfare system as stifling the poor's motivation to work and the wealthy's motiva-
tion to gain ever-greater levels of affluence, greater disparity in income was allowed
and arguably promoted. 7 ' Reagan's administration shifted the country's ideological
focus, which had remained fairly collectivist since the New Deal and the subsequent
civil rights movement, toward greater emphasis on individualist principles.'72
The appeal of these principles, emphasizing one's personal responsibility for
overcoming economic hardships, demonstrates the persistence of these values in the
minds of Americans. The identification with individualist principles, some claim,
explains why mothers on welfare began to blame themselves for their own poverty
and why union workers began to feel guilty when jobs were lost, in the face of
evidence that the jobs would have been lost with or without union efforts. " Studies
have demonstrated that America believes itself to be basically without class
hierarchy and as a land of equal opportunity.' This is in spite of the fact that
Americans enjoy "the most unfair distribution of wealth and income of any major
nation. The richest 1% of the population now owns as much wealth as the bottom
95% of all Americans combined."' 7 5 The apparent explanation of this disjunction
is that, in viewing equality as synonymous with opportunity, and therefore con-
cerning oneself with an evaluation of an individual's ability to succeed, Americans
are willing to overlook demonstrated inequalities.
168 Id. at ix.

169 Abraham, supranote 110, at 22. See generally ALAN BRINKLEY, THE ENDOFREFORM:
NEW DEAL LIBERALISM IN RECESSION AND WAR (1995).
170 id.
'' PIORE, supra note 109, at 10.
172 See id. (describing the effects of Reagan's policies on the poor and their resulting
social manifestations).
17 Id. at 32.
17'BELL HOOKS, WHERE WE STAND: CLASS MATrERS, at vii (2000) ("As a nation we are
afraid to have a dialogue about class even though the ever-widening gap between the rich and
the poor has already set the stage for ongoing and sustained class warfare."); SAMUEL LErrER
& WILLIAM M. LE1TER, AFFIRMATIVE ACTION IN ANTIDISCRIMINATION LAW AND PoLIcy:
AN OVERVIEW AND SYNTHESIS 235-36 (Robert J. Spitzer ed., 2002); see also discussion
infra Part III.B.3 (discussing the pervasiveness and widespread acceptance of the rhetoric of
individualism).
175LE1rER & LErrER, supra note 174, at 235-36 (quoting Congressman Bemie Sanders,
FallingBehind the Boom Times, BOSTON GLOBE, Feb. 12, 2000, at A15).
1329
3. Affirmative Action, the Push Toward Equal Results, and Individualist

Backlash
The formalistic conception of equality as an individual right has been used to

help remedy overt discrimination against certain groups. Yet, this approach toward
equality has actually frustrated the achievement of greater substantive equality.
The debate surrounding affirmative action provides the greatest example of this
phenomenon. The affirmative action programs of the mid- to late-twentieth century
demonstrated a shift from the original goal of civil rights reformers to remedy
intentional discrimination. Affirmative action, instead, focuses on effects of dis-
crimination on particular groups, and, as critics contend, has resulted in an approach
that is "antimeritocratic."' 7 6 Despite the elimination of segregation during the civil
rights era, great disparities between white and black Americans persisted and the
promise of equality seemed increasingly hollow. The next logical step for achieving
greater equality was to look toward remedying those disparate effects. This section
addresses the ways in which this project failed, largely due to the American belief
in equal opportunity for the individual regardless of race. While a national ideology
stressing individual merit and opportunity is quite laudable, this system of beliefs
has worked to prevent a move toward greater substantive equality.
a. The emergence of the principal of substantive equality
By the mid-1960s, civil rights activists began not to attack formal inequality
under the law, as represented by Jim Crow laws, but instead real inequalities facing
black Americans. As Bayard Rustin wrote in 1965, there were more blacks facing
unemployment and attending segregated schools in 1964 than when Brown v. Board
of Education was decided a decade earlier. 177 Also in 1965, an extensive study at
the Labor Department revealed startling findings on the American progression
toward greater equality. A young Assistant Secretary at the Labor Department,
Daniel Patrick Moynihan, directly addressed the need to work toward equality of
176 See id. at 2.

1' Bayard Rustin, From Protestto Politics:The Future of the Civil Rights Movement, 39
COMMENTARY 25, 25-27 (Feb. 1965). Rustin directed attention to the resentment within the
black community, and noted that the struggle "after all, is not civil rights, strictly speaking,
but social and economic conditions." Moreover, he advocated a shift in focus toward "not
merely.... removing the barriers to full opportunity but.., achieving the fact of equality."
Id. at 26-27.
1330
results rather than equality of opportunity.178 The Moynihan Report marked a sharp
shift from the discourse of the civil rights era struggle for equality.
The ideal of equality does not ordain that all persons end up,
as well as start out equal. . . . But the evolution of American
politics, with the distinct persistence of ethnic and religious
groups, has added a profoundly significant new dimension to
that egalitarian ideal. It is increasingly demanded that the dis-
tribution of success and failure within one group be roughly
comparable to that within other groups. It is not enough that all
individuals start out on even terms, if the members of one group
almost invariably end up well to the fore, and those of another
far to the rear.' 79
The Moynihan Report provided the foundation for affirmative action programs,
although the Report's author would likely not have foreseen the effect of his
findings. Moynihan advocated a comprehensive program, aimed at full employ-
ment, eradication of ghetto conditions, and structural reform of public education.
As Rustin noted, this would require a "multi-billion dollar federal public works
program."' ° In essence, the Report recommended attacking the roots of pervasive
inequality since the formal legal barriers to full opportunity had been largely
eliminated. While the goals were presented as racially neutral, the focus of
remedies was on the problems of the black urban poor.' 8' Perhaps most remarkable
is the reception the Report received in the political community. While often con-
demned,8 2 the Report led to President Johnson's famous commencement speech at
Howard University in June 1965. Johnson said: "You do not take a person who, for
years, has been hobbled by chains and liberate him, bring him up to the starting line
of a race and then say, 'you are free to compete with all the others,' and still justly
believe that you have been completely fair."'8 3 Johnson's statement remains
supra note 113, at 184 (citing OFFICE OF POL'Y PLAN. & RES., U.S. DEP'T OF
178 KULL,
LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION (1965) [hereinafter
MOYNIHAN REPORT]. For more on the creation of this Report and the public and scholarly
reaction, see LEE
RAINWATER & WILLIAM L. YANCEY, THE MOYNIHAN REPORT AND THE
POLrrTCs OF CONTROVERSY (1967).
179 MOYNIHAN REPORT, supra note 178, reprintedin RAINWATER & YANCEY, supra note
178, at 3.
180 Rustin, supra note 177, at 28.
181 See KULL, supra note 113, at 181. Even if the Report was directed at ameliorating the
root causes of poverty itself, it would have been a great departure from traditional American
views toward class and equality.
182 Id. at 188.
183 id. at 186-87.
1331
remarkably accurate in its characterization of the effects of an individualist-oriented

view of equal opportunity, especially where substantive equality of opportunity
continues to be outside the limits of mainstream debate. Johnson's attempt to
reshape the aims of equality beyond mere formalism created the basis of modem
affirmative action programs."4
After President Johnson's speech and its signal that greater social programs
furthering equality might be forthcoming, the Watts riots and the escalation of the
Vietnam conflict quickly consigned the Report recommendations to practical
irrelevance.' 85 The Report's author had assumed vast amounts of money and time
to address the causes of inequality. Now, it seemed a quick fix was needed, with
little money and time to address the complex issues raised by its findings. l 6 The
aftermath of this culmination of events began in 1968.187 Without a political
mandate, the difficulties of addressing inequalities in results were left to courts and
administrators, as they were less politically accountable, and had some options
available to them without collecting actual funds. 8 Where massive job creation had
been one of the main recommendations of the Moynihan Report, the constraints on
judges and civil rights agencies led to the only available option: they broadly
interpreted the laws against discrimination and began using racial preferences in
allocating jobs already in existence. 189 The remaining affirmative action programs
currently in place are remnants of this project.
b. Affirmative action attacked
The laudable goals of substantive equality have been nearly eliminated by the
Supreme Court as well. As noted earlier, the civil rights reforms of the 1960s
presented one of the highlights in American history where the paradigmatic goal of
individualism gave way, to some extent, to the ideals of greater collective equality.
The Court's subsequent retreat from the principles of racial equality represented in
Brown finds clearest expression in its decisions addressing affirmative action, as well
as those cases arguing that the clear effects of discrimination - not only discrim-
inatory intent - should be addressed under the constitutional guarantee of equality.
In several cases, the Court has been presented with overwhelming evidence of
unequal results among races and has denied that the situation rises to the level of an
infringement of constitutional rights.'90 Perhaps most notably, the Court addressed
184 Id.
"' Id. at 188.
186 id.
187 Id.
188 See id. at 188-89.
i89 Id. at 189.
'90 For example, the Court has struggled with the constitutionality of affirmative action
in government-funded schools. See infra notes 194-203 and surrounding text.
1332
the use of preferences in granting city contracts to minority-owned businesses.'

In Richmond, Virginia, the former capital of the Confederate South, a city with a
fifty percent black population, less than one percent of city contracts had been
granted to minority-owned businesses.' 92 As a result, the city created a set-aside
program reserving thirty percent of contracts for minority-owned businesses to
ameliorate this disparity. The record was replete with evidence of the city's long-
standing history of racism and oppression toward blacks. The Court did not hold
that thirty percent was too great a set-aside, but that there was no evidence that white
firms would not hire minority subcontractors and therefore there was "no proofof
discrimination."' 93 As shown in this example, the formalistic use of the 14th
Amendment's protections of equality has been used by the Court to undermine the
very project of equality.
If affirmative action - or a judicial recognition of unequal results - could be
justified in any situation, it would appear to be in the case of education. After all,
the promise of equality of opportunity seems especially false as very poor (and often
minority) children attend miserably failing schools, while students in the next, more
economically prosperous district are provided every educational advantage.
However, the Court has not been more likely to pursue greater substantive equality
in education than in other areas, despite the precedent established in Brown recog-
4
nizing that the formality of separate but equal masked true inequality. In
95
particular, in San Antonio Independent School District v. Rodriguez, the Court
addressed the great disparity in schools, largely resulting from the district's use of
property taxes as a revenue base.' 96 The Court denied that a fundamental right 197
was implicated, as there is no fundamental right to publicly funded education.
The Court also declined to recognize the poor as a suspect class under the 14th
Amendment.9 8 Furthermore, as Justice Powell noted, it was unclear any harm was
suffered, for there was no proof that less funding would result in a lower-quality
2°°
school or education. 99 The recent decision in Grutter v. Bollinger reluctantly
authorized some continued use of affirmative action in admissions for higher
' City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
192 Id.
19'Patricia Williams, The Obliging Shell: An Informal Essay on Formal Equality, 87
MICH. L. REv. 2128, 2130 (1989). Williams's article provides a compelling criticism of the
rhetorical devices the Court uses in Croson, 488 U.S. 469, to minimize the experience of
discrimination victims.
194 Brown v. Bd.of Educ., 347 U.S. 483 (1954).
'1 411 U.S. 1 (1973).
196 Id. at 8.
1 Id. at 37.
198 Id. at 28.
'99Id. at 42-43.
200 539 U.S. 306 (2003).
1333
education. 2 °' Interestingly, the decision was not based on the grounds of achieving
greater equality, but largely because of the university's goal of diversity. 0 2 That is,
the affirmative action program furthered the goals of all students to have a better
educational environment; the benefits to black and other minority students were
almost beside the point.2 3
The Court's approach to these issues has largely tracked public opinion.
Increasingly, the political will for programs to help black Americans, like programs
to help the poor, has evaporated. Moreover, no matter how sympathetic one's view
toward affirmative action, the program has largely failed. 2 4 The ultimate attempts
by courts and administrators to achieve greater substantive equality have only
achieved benefits for the most qualified individuals among those in the chronically
disadvantaged group. Proponents have lost the "unifying power and the moral claim
associated" with the antidiscrimination principal; the nation has "lost sight of the
crisis it originally set out to confront." 205 As implemented, these programs have
only exacerbated the problems of poor urban blacks; not only do they have fewer
opportunities to succeed, many Americans now view them as failing despite all of
the perceived benefits they receive from affirmative action. These reasons, among
others, demonstrate the difficulty defenders of substantive equality have had in
resisting compelling ideological claims, largely from conservatives, that affirmative
201 Id. at 343.

202 Id.
203 See, e.g., Juan F. Perea, Buscando Am6rica: Why Integration and Equal Protection
Failto ProtectLatinos, 117 HARV. L. REV.1420, 1453-54 (2004); see also Derrick Bell, Jr.,
Brown v. Board of Education andthe Interest-ConvergenceDilemma, 93 HARv. L. REV. 518
(1980). Bell, a leading critical-race theorist, explains the Brown decision as largely con-
servative and motivated by desires to gain greater credibility in the ideological struggle of
the Cold War, to give black Americans hope that the ideals of freedom trumpeted during
World War II might eventually include them, and to push the South toward greater economic
success, which had been hampered by segregationist policies. Id. at 524-25. He also argues
that gains in greater equality for blacks have only been achieved when such reforms are in
the interest of the white majority. Id. at 524. He calls this "interest-convergence theory" and
has elaborated on this theory in many publications. See, e.g., DERRICK BELL, AND WE ARE
NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 102-22 (1987); DERRICK BELL,
FACES AT THE BoTroM OF THE WELL: THE PERMANENCE OF RACISM 47-64 (1992).
204 For a discussion of the problems affirmative action programs face, see generally
DARIEN A. MCWHIRTER, THE END OF AFFIRMATIVE ACTION (1996).
20" KULL, supra note 113, at 190; see also STEPHEN L. CARTER, REFLECTIONS OF AN
AFFIRMATrIvE ACTION BABY (1991). Carter notes that the results of affirmative action
programs have meant middle-class blacks are better off, but lower-class blacks are actually
worse off. Id. at 71. While this may not be the cause of the growing income gap within the
black community, it certainly will not solve it. Id. at 71-72. Carter's book also provides an
insightful and personal discussion of the difficulties of identifying oneself as black and also
supporting affirmative action programs, despite strong feelings of individualism and the
desire to claim ownership for one's individual accomplishments. Id. at 71-123.
1334
action is contrary to America's central focus on the individual, either in economic

terms, or in terms of equal opportunity among job applicants. Indeed, perhaps the
greatest detriment of affirmative action programs lies in the expenditure of "limited
political capital available for 'programs to help blacks' on measures that do little or
nothing to improve the condition of those black Americans."'"
The current public and legal debate over the value, and even the legitimacy, of
affirmative action highlights the sensitivity and ambivalence Americans feel toward
any program that undermines the ideals of this nation, including equality among
individuals, merit, and nondiscrimination. As Peter Schuck writes, the unpopularity
of affirmative action today lies in its "reinforcement of the pernicious and in-
creasingly meaningless use of race as a central principle of distributive justice rather
than other distributive principles, particularly merit, with which most Americans,
whites and minorities alike, strongly identify."20 7 Affirmative action programs
provoke such resentment precisely because they are only justifiable if one recog-
nizes that inequality exists, which most Americans are reluctant to acknowledge." 8
At the least, one must maintain that poverty can be overcome if one merits better
social and economic standing. Second, these policies were implemented in a half-
hearted manner. Even the reforms proposed by the Moynihan Report would have
been widely opposed because they would have resulted in higher taxes, which
many view as an infringement of individual property rights and an unjust redis-
tribution to those who have proven incapable of improving their own conditions.
However, the failure to implement the Report's changes has resulted in even greater
opposition precisely because they favor minority groups in a zero-sum allocation of
jobs and resources.
Few minorities have directly benefitted from these policies, and the compar-
atively greater opportunity afforded to white Americans and wealthy individuals has
remained unchanged, but the very existence of such programs has led to hostility by
those who feel they have been harmed by "reverse racism. ' '209
206 KULL, supra note 113, at 221.

207 SCHUCK, supra note 112, at 135.
208 Many have argued that whites dislike affirmative action policies because they put
white people on the defensive. Furthermore, many have argued that the dislike also stems
from the policies' ability to undermine the ideals of individualism and meritocracy that, if
questioned, could pose many more difficulties in Americans' self-perception. As one author
noted, because affirmative action policies require one to quantify the numbers of each racial
group to have achieved certain successes, "affirmative action programs strip legitimacy from
the assumption that the current distribution of access, wealth, and work is a natural
phenomenon. The predominance of white people in a medical school class, secretarial pool,
lunchroom, or office party loses that natural status which required no justification." Martha
R. Mahoney, Classand Status in American Law: Race, Interest,and theAnti-Transformation
Class, 76 S. CAL. L. REV. 799, 811 (2003) (citations omitted).
209 As one politician explained: "I don't think there are 500 people in Louisiana that have
either been adversely affected or benefited from affirmative action. But everyone who
1335
WILLIA" & MARY BILL OF RIGHTS JOURNAL [Vol. 13:1275
c. The lost goal of substantive equality and its effect on lived reality
In discussing the formation of radical American individualism, this Article has

made some generalizations about the pervasiveness of this principle in the hearts and
minds of Americans. While the rhetoric often presents broad principles of policy
when invoked by politicians, the effect of these principles is personally felt. In fact,
the strength of the ideology of individualism has become clearer in the past two
decades, as the reforms that aimed at collective equality have been increasingly
limited. For example, the views of black children in an inner-city school demon-
strate the pervasiveness of these ideals. Social scientists investigating the future of
civic participation among certain groups visited Baltimore public schools and met
with many students on several occasions.21 The children generally attended seg-
regated schools and lived in racially homogenous communities."' Most tellingly,
the students were "amazed" to see white people (the researchers) because they
seldom saw white people other than police officers. Indeed, many students assumed
the researchers were basketball recruiters.212
Despite these experiences, the black students expressed the view that racism
and discrimination occurred "a very long time ago."213 '
Each of them could recount
horrific stories about murders and police brutality, without any broader compre-
hension of the possible forces at work in their community - chronic poverty, crime,
discrimination, and drugs. As the researchers noted, "we found little confidence
among the black adolescents in our study that collective action was at all relevant
to their efforts to get ahead. Many African Americans coming of age in the new
century view the civil rights movement as ancient history."214'
Indeed, the students
did not direct anger about their social situation at discrimination but rather toward
each other. A discussion about the merits of welfare at Dunbar High School in
Baltimore's inner city led a female student to argue that the government should not
be focusing on getting women to work, but that welfare reform should begin with
getting the men to work. 2' 5 A male student responded, "Just close your legs, that
doesn't have a job or whose son cannot get into law school believes it's because of
affirmative action." Edwin Edwards, Remarks During His Gubernatorial Campaign Against
Former Ku Klux Klan Leader David Duke (1991), quoted in MICHAEL GOLDFIELD, THE
COLOR OF POLITICs: RACE AND MAINSPRINGS OF AMERICAN POLITICS 7 (1997).
210 JAMES G. GIMPEL ET. AL., CULTIVATING DEMOCRACY: CivIc ENVIRONMENTS AND
PoLmCAL ASSOCIATION IN AMERICA (2003). In studies within diverse public schools, the
authors document the ways in which one's social and economic status, culture, and environ-
ment impact one's political efficacy. Id.
211 id.
212 id.
213 Id.at 70.
214 id. at 69.
215 Id.at 70.
1336
would solve the problem. 2 '6 Equal opportunity and self-reliance, as seen in this
example, often result in blaming the victim. The researchers noted further: "Again
and again we found that these kids had come to believe in the American individ-
ualist creed, that success is really up to them, and that poverty and other social
problems stem from a lack of motivation rather than structural inequalities or
discrimination. 2 17
CONCLUSION
India and the United States share many similarities, suggesting that their
systems are actually not so different, although their ideological views toward
individual rights and substantive equality have resulted in very different consti-
tutional regimes. "India has developed a legal system that is probably more similar
to that of the United States than any other country, particularly in the field of
constitutional law." 218 Both constitutions guarantee similar individual rights, both
boast of constitutional courts with great powers of judicial review, including the
ability to strike down legislation, and both share the common tradition of the British
common law.219 However, the Indian approach toward affirmative action, as an
example of a project to further equality, focuses on eliminating the continued effects
of social hierarchy that have perpetuated the inferior socioeconomic status of certain
groups. 220 The difference between these views toward equality can be explained by
the focus either on the individual or on groups and the benefits individuals receive
based on their position in society's hierarchy. President Johnson's recognition of
the actual conditions of inequality 2" - both the lived realities of individuals and the
persistence of inequality among societal groups - would have presented a paradigm
shift in the American civic religion. In contrast, such recognition of collective dis-
advantage guides India's approach to achieving greater equality. The comparison
of these two approaches toward equality provides some interesting lessons.
First, the absolute furtherance of either of these approaches to equality would
not be advisable. A purely collectivist, results-oriented push for substantive equality
finds its clearest expression in the rhetoric of Marxism, which, in practice, denies
the inherently unequal qualities of individuals, undermines individual liberty, and
even proves ineffective at eliminating true inequalities. India's system recognizes
the value of achieving substantive equality while also protecting individual free-
doms and rights. An entirely individualist approach toward equality of opportunity
216 Id.
217 Id. at 69.
218 Cunningham, supra note 98, at 22.
219 id.
220 id.
221 See supra note 183 and accompanying text.
1337
can be found in early America and, to some extent, this formalistic approach
persists to this day. It denies that there are very different opportunities available to
those born within an existing social hierarchy, and justifies existing inequalities by
referencing the formal equality of every individual under the law.
Second, each of these approaches result in very different legal principles,
which can be summarized as an effects-based inquiry into achieving equality on
one hand or a formalistic goal of ensuring antidiscrimination on the other. Each of
these standards has its own drawbacks. Primarily concerned with the effects of
past discrimination and continuing socioeconomic stratification of castes, the
Indian approach, at least in theory, focuses on achieving the ideal of a society free
of undeserved inequality. However, the resentment that such programs of the Indian
approach have generated reflects the shared principles of individual rights and merit
that have prevented adoption of such programs in the United States. The protests of
the upper classes in India reflect the despair among their young people that they
are themselves disadvantaged, with some feeling a distinct lack of opportunity.
Whether their perceptions reflect an accurate view is debatable, but the conflict-
ing ideals nevertheless present Indian leaders and voters with a difficult balancing
of interests.
Moreover, the argument that antidiscrimination alone will eliminate continued
caste discrimination has not evaporated. Ghandi's concern that an attempt to give
secured political rights to the lower castes would result in greater entrenchment of
the caste system may prove true. The more practical approach of Dr. Ambedkar -
to grant the lower castes and outcastes political power regardless of continued
discrimination by upper-caste Hindus - does have the advantage of at least
achieving practical results. The Indian approach lacks the idealistic moral authority
of achieving a unified society where caste, class, and race are no longer contem-
plated; however, concrete steps to elevate groups' societal standings provide an
ability to measure and achieve some progress, rather than waiting for elimination of
racism or for each individual of a maligned group to pull him- or herself out of
poverty by sheer fortitude and determination. A further problem encountered with
an effects-based inquiry arises in the context of defining disadvantaged groups and
weighing their relative barriers to full equality. In India, caste has become the domi-
nant concern for social reform, but women and certain races face very different
obstacles, and they too have similar histories of social and economic discrimination.
The U.S. Supreme Court has expressed alarm over this precise problem as a means
of justifying their refusal to look at unequal effects.222
222 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). The Supreme Court held:
To accept Richmond's claim that past societal discrimination alone can
serve as the basis for rigid racial preferences would be to open the door
to competing claims for "remedial relief' for every disadvantaged
group. The dream of a Nation of equal citizens in a society where race
1338
An approach concerned solely, or even primarily, with preventing overt,

invidious discrimination does not achieve equality of results, as can be seen from the
American experiment in achieving racial equality since World War II. In fact, once
the U.S. Supreme Court began to give the 14th Amendment's guarantee of equality
under the law some teeth, perhaps beginning with Brown, the principle quickly
began to operate to prevent the achievement of greater equality, as seen in the
history of affirmative action programs. The same pattern can be seen with the
legislative reforms toward equality of the New Deal era, such as welfare programs
and labor laws; these have largely been eroded by arguments that they impair
individual liberty and responsibility.
A legal approach focused on eliminating unequal effects among society's groups
ensures, to a much greater extent, the ability of individuals to achieve equal success.
After all, it is unlikely that wealthy white individuals control nearly all of the
nation's capital due to their inherent, superior talents. That these groups have not
suffered from centuries of discrimination and other hardship provides a much more
likely explanation for this class stratification. Their control over the social capital
in society provides another explanation (i.e., those whose forbears amassed fortunes
in a time of explicit exploitation of others remain much more likely today to retain
those advantages and continue to accumulate them). Essentially, to protect the
rights of the individual to such a great extent merely entrenches those already among
the elite. Collectivist programs aimed at alleviating inequality also proceed from the
assumption that the law provides a tool for achieving social change, whereas
formalist equality-of-opportunity approaches proceed from the assumption that the
legal system is limited in its ability to influence social structures.
Third, each of these legal approaches has political ramifications. India's
society, shaped by the values of social responsibility, together with the values of
liberalism and individual rights, demonstrates an acknowledgement of existing
injustices and has coupled this awareness with concrete steps to ameliorate them.
In contrast, the United States has already achieved equality of opportunity under the
law, at least in terms of formal equality. As such, the push toward ever-greater
equality, envisioned during the civil rights era, has largely stalled. Disenchanted
with social programs that seem to have failed, mainstream America has largely
given up on the project, content to explain the continued gulf between the rich and
the poor, whites and blacks, as a natural consequence that cannot be affected by
government intervention. More accurately, most likely feel that these disparities can
only be prevented through programs that undermine the ideological rhetoric of
is irrelevant to personal opportunity and achievement would be lost in

a mosaic of shifting preferences based on inherently immeasurable
claims of past wrongs.
Id. at 505-06 (1989). But see Williams, supra note 193, at 2128-29 (criticizing the Court's
argument in Croson as disingenuous and unfounded).
1339
untempered individualism, private property, and capitalism that has been ingrained
in the national psyche since before the drafting of the Constitution. Subsequently,
the entrenchment of these ideals in our constitutional system has strengthened them
to the extent that most Americans view them as part of the national order, having
achieved the status of moral imperatives. Thus, as India continues to attempt greater
equality, even though it will very likely never result in an absolute equality based
on merit, the United States retreats to its default position of radical individualism
and utilizes less overtly racist and elitist rhetoric to justify the country's conditions.
This Article analyses the more collectivist principles of true equality and the
more individualist principles of liberty as if they are diametrically opposed. To
some extent, they must conflict. The incompatibility of these principles is demon-
strated in the discussion of the opposition of Enlightenment ideals to concepts like
welfare reform and affirmative action. This conflict is also evidenced in the tradi-
tional Hindu view of the individual as opposed to the benefit of society. Yet, the
principles of individualism need only conflict with the ideal of equality when one
embraces an absolutist or radical view of either of these ideals. In fact, the radical
view of egalitarianism as expressed in Marxist thought is justified, in part, on the
idea that man cannot be free as long as he is bound to an unequal society and
unable to exploit fully his own natural talents without regard for the need to
compete against others. Although liberty and equality can be opposed to each other,
a balanced view of either ideal and furtherance of both laudable goals requires some
elements of each.
1340
Chapter-2
Concept, Meaning and
Scope of Freedom of
Speech and Expression
CHAPTER-2
CONCEPT, MEANING AND SCOPE OF FREEDOM OF
SPEECH AND EXPRESSION
“The Constitution is not an instrument for the Government to restrain the people, it is an
instrument for the people to restrain the Government.”
–Patrick Henry (1736-1799)1
2.1 INTRODUCTION
The freedom of speech is regarded as the first condition of liberty. It occupies a

preferred and important position in the hierarchy of the liberty, it is truly said about the
freedom of speech that it is the mother of all other liberties. In modern time it is widely
accepted that the right to freedom of speech is the essence of free society and it must be
safeguarded at all time. The first principle of a free society is an untrammeled flow of
words in an open forum. Liberty to express opinions and ideas without hindrance, and
especially without fear of punishment plays significant role in the development of that
particular society and ultimately for that state. It is one of the most important
fundamental liberties guaranteed against state suppression or regulation.2
The rights conferred under Article 19 of the Constitution are the rights of free man.
These are natural law or common law rights and not created by a statute. As such every
citizen is entitled to exercise such rights provided conditions to be imposed whenever so
required by the State.3
The freedom of speech and expression benefits more the hearer than the speaker. The
hearer and the speaker suffer as violation of their spiritual liberty if they are denied
access to the ideas of each other. This freedom is also essential for pursuit of truth.4
1
Retrieved from <http://www.slideshare.net/nikita96/indian-constitution> visited on 09-08-2012.
2
Dheerendra Patanjali, “Freedom of Speech and Expression, India v America - A Study” Retrieved from
<http://www.indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html>visited on 12-10-2012.
3
A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Also see Collector of Malabar v. Erimal Ebrahim
Hajee, AIR 1957 SC 688.
4
Franklyn S. Haiman, “Speech and Law in a Free Society” University of Chicago Press, 1981.
16
The freedom of speech and expression is a very important fundamental right. It is
indispensable for the development of one’s own individuality and for the success of
parliamentary democracy. It is said that in a democracy the right to free expression is
not only the right of an individual but rather a right of the community to hear and be
informed.5
Our Constitution is based on the principle of checks and balances. The Preamble
expresses two ideas which complement each other, namely:
1. Rights of the individual which correspond to the duties of the State towards the
individual, and
2. Duties of the individual towards the State which correspond to the rights of the
society against the individual.
The State is under an obligation not to infringe upon the rights of the individual.
Similarly, the individual is obliged to contribute to the social welfare.6 So, every
attempt needs to be made so that this reasonable means does not get disturbed. We are
given the freedom of speech, we can express ourselves. But, the beauty of the freedom
lies in its limits in the interest of the society.
2.2 HISTORICAL BACKGROUND OF FREEDOM OF SPEECH &

EXPRESSION
Freedom to express and disseminate one’s opinion is a demand of the European

enlightenment on the State which took its root initially in England within the framework
of common law precedents.7 At the end of the 18th century, freedom of expression of
opinion expanded through the first basic rights proclamations. In the context of English
legal position, section 12 of the Virginia Bill of Rights, 1776, declared that the freedom
of the press is one of the great bulwarks of liberty and can never be restrained by
despotic Governments. Contrary to the English tradition of Parliamentary supremacy,
5
Sujata V. Manohar, “T.K. Tope’s, Constitutional Law of India” Eastern Book Company, Lucknow,
2010, p. 143.
6
V.S. Deshpande, “Right and Duties under the Constitution”, 15 JILI (1973), p. 95.
7
A.V. Dicey, “Introduction to the Study of Law of the Constitution” Macmillan, New York, 1959, 10th
edi., p. 238ff, 247ff.
17
the 1st Amendment of the Constitution of United States binds Parliament also. The
Congress shall make no law abridging the freedom of speech or of the press. in Article
II of the French Declaration of the Rights of Man and of the Citizen, 1789, in the sense
of enlightenment, the freedom of opinion was proclamed as a human right “the
unrestrained communication of thoughts or opinions being one of the most precious
right of man. Every citizen may speak, write and publish freely, provided he be
responsible for the abuse of this liberty, in the cases determined by law. In the 19th
century, the German States guaranteed freeom of opinion in their constitutions within
the framework of general criminal laws mostly by express prohibition of subjecting the
press to censor.8 The Federal Constitutional Court has held that for a free democratic
State the basic right to freedom of expression of opinion is an “essential constituent
because only it enables permanent intellectual discussion, i.e. combat of opinions which
are its life breath.”9
According to Abraham Lincoln,10 the democracy is Government by the people, for the
people and of the people. But there can be no Government by the people if they are
ignorant of the issues to be resolved, the arguments for and against different solutions
and the facts underlying those arguments. Thus, it is the people who are the sovereign in
a democracy.
The United Nations convened a Conference at Geneva in 1948 on the subject matter of
Freedom of Information which was attended by 54 countries. It passed a series of
resolutions for further consideration by the United Nations which ultimately led the
General Assembly of the United Nations to declare Freedom of Information a
fundamental human right.11 The Universal Declaration of Human Rights particularly in
its Article 19 states that “everyone has right to freedom of opinion and expression; this
right includes freedom to hold opinion without interference and to seek, receive and
8
Christian Starck,”Freedom of Expression and Academic Freedom: Background and Formation of Legal
Principles” in Mahendra P. Singh (eds.), Comparative Constitutional Law, Eastern Book Company,
Lucknow, 2011, p. 409.
9
Luth-Urteil case, 7 BverfgE 198.
10
16th President of United States.
11
Subhash C. Gupta, “Right to Information Act, 2005: A New Approach to Public Accountability” in
Law in India Emerging Trends, Publications Bureau, Punjabi University, Patiala (eds.), 2007, p. 291.
18
import information and ideas through media and regardless of frontiers.”12 The plenary
words of these proclamations signify both democratic and people oriented right in one
hand and also signify the right to information on the other. In 1960, the Economic &
Social council of the United Nations adopted a derivative from Article 19 of the
Universal Declaration of Human Rights in 1948. Sweden became the first country in the
world to enact a provision for access to official information for the citizens.13 The Rome
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950,14
and came into force on 3rd September, 1953; and particularly Article 10, which spells
the freedom of expression states that (i) everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to receive and impart
informations and ideas without interference by public authority and regardless of
frontiers. This Article shall not prevent states from requiring the licensing of
broadcasting, television or cinema enterprises, and (ii) the exercise of these freedoms
since it carries with its duties and responsibilities may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interest of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or right of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of
judiciary.
In India, the Preamble of the Constitution is not like Preamble of other enactments but it
is the gist of intention of the Constituent Assembly. While interpreting any provision of
it, Preamble shoul be considered an integral part of the Constitution and should be
treated as guidelines for the interpretation of the Constitution, where there is ambiguity.
The Preamble of the Constitution also shows that in democracy it is the people who are
supreme. The true democracy is governed by five words enshrined in the beginning of
the Preamble of the Constitution of India i.e. WE, THE PEOPLE OF INDIA and ending
12
United Nations General Assembly Resolution No. 217A (III), 10 th December, 1948.
13
Subhash C. Gupta, “Right to Information Act, 2005: A New Approach to Public Accountability” in
Law in India Emerging Trends, Publications Bureau, Punjabi University, Patiala (eds.), 2007, p. 292.
14
P.K. Das, “Handbook on the Right to Information Act” Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 2010, p. 15.
19
with five words i.e. GIVE TO OURSELVES THIS CONSTITUTION. Broadly speaking
the people of India are largely living in the darker side of the governance of the country
and are often uninformed about the public affairs and are dominated by those who
wheel power in the executive, legislative and judicative spheres. The jurisprudence of
democracy is envisaged in Articles 23 and 25 of the Universal Declaration of Human
Rights of the year 1948 and in Part III and Part IV of the Constitution of India which
guarantees some rights like right to life, liberty, dignity and decent conditions of life
and development.15 In a democracy, the electoral process has a strategic role. The little
man of this country would have basic elementary right to know full particulars of a
candidate who is to represent him in Parliament, where laws to bind his liberty and
property may be enacted. Thus, in a democracy it is the primary right, without it an
effective rule of law is not possible. Justice K.K. Mathew has observed as follows:
“As the freedom of expression concering public affairs is indispensable

to the operation of the democratic system, it is a necessary implication
from the provisions of the Constitution establishing it”.16
2.3 MEANING OF FREEDOM OF SPEECH & EXPRESSION
The Constitution of India guarantees various fundamental rights to its citizens. One
such important right is right to freedoms under Article 19. This includes right to
freedom of speech and expression17, right to assemble peacefully and without arms18,
freedom to form associations and unions19, right to move freely throughout the territory
of India20, right to reside and settle in any part of the territory of India21 and right to
practice any profession or to carry on any occupation, trade or business22. Before 44th
amendment, there was also a right to acquire, hold and dispose off property under
Article 19(f), but the same was omitted by this amendment in 1978. In 44th Amendment,
an Article was added as Article 300A to the effect that no person shall be deprived off
his property saved by Authority of Law. The effect of this amendment is that now the
right to property is no longer a fundamental right under the Indian Constitution.
15
P.K. Das, “The Right to Information Act” Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2010, p. 3.
16
K.K. Mathew, “Democracy, Equality and Freedom” in Upendra Baxi (eds.), Eastern Book Company,
Lucknow,1978, p. 98
17
Article 19(1) (a) of the Constitution of India.
18
Article 19(1) (b) of the Constitution of India.
19
Article 19(1) (c) of the Constitution of India.
20
Article 19(1) (d) of the Constitution of India.
21
Article 19(1) (e) of the Constitution of India.
22
Article 19(1) (g) of the Constitution of India.
20
Under this research work the researcher closely concerns with Article 19(1)(a) of the
Consitution of India. Article 19(1)(a) guarantees that all citizens shall have the right to
freedom of speech and expression. This right is available only to every citizen of India
and not available to any person who is not a citizen of India i.e. foreign nationals.23 The
freedom of speech and expression has been held to be basic and indivisible for a
democratic polity. The freedom of speech and expression means the right to express
one’s conviction and opinions freely by words of mouth, writing, printing, pictures,
photographs, cartoons or any other mode. It means freedom of speech and expression is
to express one’s convictions and opinions or ideas freely, through any communicable
medium or visible representation, such as gesture, signs and the like. 24 It means to
freely propogate, communicate or circulate one’s opinion or views. In other words,
freedom of speech and expression to lay what sentiments, a free citizen pleases, before
the public. Freedom of speech is the bulwark of a democratic Government and it
attaches great importance to this freedom, because without the freedom of speech
appeal to reason, which is the basis of democracy, cannot be made. Freedom of speech
opens up channels of free discussions of issues and play a crucial role in public opinion
on social, political and economic matters.25 In, one of the earliest judgments, Romesh
Thappar v. State of Madras26 Chief Justice Patanjali Sastri observed that:
“… (The freedom) lay at the foundation of all democratic organizations,

for without free political discussion, no public education, so essential for
the proper functioning of the processes of popular government, is
possible. A freedom of such amplitude might involve risks of abuse. But
the framers of the Constitution may well have reflected with Madison,
who was the leading spirit in the preparation of the First Amendment of
the Federal Constitution, that it is better to leave a few of its noxious
branches to their luxuriant growth, than by pruning them away, to injure
the vigor of those yielding the proper fruits.”
23
Hans Muller of Nurenburg v. Supdt., Presidency Jail, Calcutta, AIR 1955 SC 367. Also see State of
Gujrat v. Ambica Mills Ltd., AIR 1974 SC 1300.
24
Lovell v. City of Griffin, (1937) 303 US 444. Also quoted by Supreme Court in Romesh Thapper v.
State of Madras, AIR 1950 SC 124.
25
Jelis Subhan, “Emerging Rights Under Article 19(1)(a) of the Constitution of India” Retrieved from
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2145117> visited 27-02-2013.
26
AIR 1950 SC 124:1950 SCR 594.
21
In the same judgment, the Court held that the public interest in freedom stems from the
requirement that members of the democratic society should be sufficiently informed
that they may influence intelligently the decisions which may affect themselves.27
Freedom of speech and expression should, therefore, receive generous support from all
those who believe in the participation of people in the administration. The freedom of
speech and expression includes freedom of circulation and propagation of ideas and,
therefore, the right extends to the citizen to use the media to answer the criticism
leveled against the views propagated by him. Every citizen has undoubted right to
express what sentiments he pleases. This freedom must, however, be exercised with
circumspection and care must be taken not to trench on the rights of other citizens or to
jeopardise public interest.
Justice V.R. Krishna Iyer has observed that:

“Right to express one’s thought is meaningless if it is not accompanied
by relaxed right to secure all information on matters of public concern
from relevant public authorities. However, to ensure that there is no
harm in inserting the freedom of information on a specific corollary to
Article 19 of the Constitution”
Freedom of speech and expression has long been a hallmark of a healthy democracy and
a free society. In England, this right is enjoyed as a result of the application of the
principle of ‘the Rule of Law’. Under English Law the freedom of expression is, of
course, intrinsically important. It is valued for its own sake. In an English case, it was
held that freedom of expression has four broad social purposes to serve:
(i) It helps an individual to attain self-fulfillment;
(ii) It assists in the discovery of truth;
(iii) It strengthens the capacity of an individual in participating in decision-making;

and
(iv) It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change.
All citizens should be able to form their own beliefs and communicate them freely to
others. In sum, the fundamental principle involved here is the people’s right to know.
27
Ibid.
22
Freedom of speech and expression should, therefore, receive a generous support from
all those who believe in the participation of people in the administration.28 The freedom
of speech is that freedom which promotes the discovery of truth found in John Milton’s
Areopagitica29 and persuasive opinions by Justice Holmes “the best test of truth is the
power of the thought to get it accepted in the competition of the market.”30 Lord Steyn
explained that “Freedom of speech and expression is the lifeblood of democracy. The
free flow of information and ideas informs political debate. It is a safety valve. People
are more ready to accept decisions that go against them if they can in principle seek to
influence them. It acts as a brake in the abuse of power by public officials. It facilitates
the exposure of errors in the governance and administration of justice of the
country…”31 John Stuart Mill says that if the Government suppresses communications,
it may suppress ideas that are true or partly true. Government’s suppression of ideas
rests necessarily on a false assumption of infallibility, however, overstates his case. The
freedom of speech contributes greatly to the search for truth. It does not depend on
whether suppression always represents a claim of infallibility. His sense of truth is
broad, covering correct judgments about issues of value as well as ordinary empirical
facts and embracing knowledge conducive to a satisfactory personal life as well as facts
of general social importance.32
The concept of freedom of expression does not take the form of a positive or
enforceable right. It is a negative liberty to communicate with others or immunity from
interference by others.33 This means that a person may write or say what he pleases so
long as he does not infringe any law or the right of others. The freedom unlike an
infringed right is subject to statutory curtailment and may be restricted by judicial
development of law. Right to fly national flag freely with respect and dignity is an
expression and manifestation of his allegiance and feelings and sentiments of pride for
28
Attorney General v. Times Newspaper Limited, (1973) 3 ALL ER 54. Also quoted by the Supreme
Court in Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India AIR 1986 SC 515.
29
John Milton, “Give me the liberty to know, to utter, and to argue freely according to conscience, above
all liberties” (London 1819).
30
Abraham v. United States, 250 US 616, 624 and 630 (1919).
31
Regina v. Secretary of State for the Home Department, (2000) 2 LR 115 (AC).
32
J.S.Mill, “On Liberty” in M.Cowling (eds.) Selected Writings of John Stuart Mill, New York, 1968, p.
121.
33
Wheeler v. Leicester City Council (1985) AC 1054 per Browne-Wilkinson, I.J.
23
the nation.34 Similarly voting can legitimately be regarded as a form of expression. 35 It
is a settled fact that where there is a conflict between the voice of the people and that of
the legislative, the former is to be preferred to latter.
The Constitution of India is the law of the land. Therefore, any right and procedure
thereof to access should have genesis of any of the rights guaranteed or provided by the
Constitution. It also guarantees us many freedoms; one of them is freedom of speech
and expression. Liberty of thought is the basis of freedom of speech and expression
under Article 19(1)(a) of the Constitution of India, which is an essential component of
democratic governance. As the information is the genesis of thought and expression, the
right to information has to be an invisible integral part of the right to free speech.
Undoubtedly, the information is vital not only for the life of society but also for the life
of individual. Article 21 of the Constitution guaranteeing right to life includes basic
right to be informed.36
2.4 SCOPE OF FREEDOM OF SPEECH AND EXPRESSION
The judiciary has been enlarging the area covered by the fundamental right to freedom
of speech and expression. Freedom of speech and expression is a vital feature that a
democracy runs with. For any democracy to thrive, people must be given the liberty to
express their feeling without restriction. This very important feature of the freedom of
speech and expression is enshrined to the Indian citizens by Article 19(1)(a) of the
Constitution of India. It provides that all citizens irrespective of colour, creed and
religion have the right to raise their voice in matters of importance or otherwise without
any restriction within or without. This freedom comes in for the assumption that
rationality of men comes above everything else, and every individual, by his/her own
discretion and wisdom knows what is good or bad.37
A constitutional provision is never static; it is ever evolving and ever changing and,
therefore, does not admit of a narrow, pedantic or syllogistic approach. The constitution
makers employed a broad pharaseology while drafting the fundamental rights so that
34
Union of India v. Navin Jindal, AIR 2004 SC 1559.
35
Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363.
36
Krishna Pal Malik, “Right to Information” Allahabad Law Agency, Faridabad, 2013, p. 15.
37
Retrieved from <http://wiki.answers.com/Q/What_is_Article_19_1_a_of_the_ constitution _of_India>
visited on 10-04-2011.
24
they may be able to cater to the needs of a changing society. Therefore, constitutional
provisions in general and fundamental rights in particular must be broadly construed
unless the context otherwise requires. The scope and ambit of such provisions, in
particular the fundamental rights, should not be cut down by too astute or too restricted
an approach.38
While discussing the scope of freedom of speech and expression the Supreme Court at
many times has said that the words freedom of speech and expression must be broadly
constructed to include the freedom to circulate one’s views by words of mouth or in
writing or through audio-visual instrumentalities. It therefore, includes the right to
propagate one’s views through the print media or through any other communication
channel e.g. the radio and the television.39 The Court held that these rights are great and
basic rights which are recognised and guaranteed as the natural rights and inherent in
the status of a citizen in a free country.40
2.4.1 Freedom of Press
Article 19(1)(a) of the Constitution of India guarantees the freedom of speech and
expression but not expressly included the freedom of press. The phrase ‘speech and
expression’ is of very wide connotation, ‘expression’ naturally presupposes a second
party to whom the ideas are expressed or communicated. But it is implied that freedom
of speech and expression includes freedom of press also.The freedom of expression,
thus, includes the freedom to propagate one’s own views and the views of others and
freedom to communicate views to others. That freedom is ensured by freedom of their
publication and circulation. In short, the freedom of speech and expression includes the
liberty of the press.41 Unlike the American Constitution, Article 19(1)(a) of the Indian
Constituion does not specifically or separately provide for liberty of the press.42 The
38
Sakal Paper (P) (Ltd. v. Union of India, (1962) 3 SCR 842:AIR 1962 SC 305. Referred to Dennis v.
United States, 341 US 494; Joseph Burstyn, Inc. v. Wilson, 343 US 495 and Mutual Film Corporation v.
Industrial Commission of Ohio, 236 US 230.
39
Arashdeep Kaur, “Article 19 Protection of Certain Rights regarding Freedom of Speech etc”
Retrieved from <http://www.scribd.com/doc/51091293/Constitution-ARTICLE-19#> visited on 10-04-
2011.
40
State of West Bengal v. Subodh Gopal Boss and Others, AIR 1954 SC 92.
41
Narinder Kumar, “Constitutional Law of India” Allahabad Law Agency, Faridabad, 2005, p. 188.
42
The omission was explained by Dr. B.R. Ambedkar, when he observed that the press has no special
rights which are not to be given or which are not to be exercised by the citizen in his individual capacity.
The editor of a press or the manager is merely exercising the right of the expression, and, therefore, no
special mention is necessary of the freedom of the press.
25
freedom of press means as medium of publication and is closely linked with freedom of
person and independence of judiciary.
Justice Marshall in ‘Law of the Press’ had to say as follows:

“It is the liberty of the press that is guaranteed, not the licentisness. It is
the right to speak the truth, not the right to bear false witness against
your neighbour. Every citizen has a constitutional right to the enjoyment
of his character as well as the ownership of his property, and this right is
as sacred as the liberty of the Press... As there is always a class of moral
preverts and degenerates in every community who feed their morbid
appetites upon such scandals and rejoice at the injury thus down to those
who are infinitely their superiors that they are not worthy to fasten the
latches of their shoes. But to the credit of the news papers profession it is
due here to make a record of the fact that the great majority of the
members of that profession do not approve or sanction such practices or
such ‘yellow’ journalism, but have a proper appreciation of the rights
and purposes and functions of a newspaper and deplore the fact that such
unworthy persons are engaged in the profession, as such as lawyers
would deploy the black sheep that would sometimes creep into the fold.
The contrast between the two classes marks the differences between
respectability and indecency, between intelligence and ignorance,
between law abiding patriotic citizens and the Ishmaelite, the assassin of
character for the accumulation of lucre. The great body of people
condemns such practices and such miscreants and the Courts would
deserve condemnation and abolition if they do not vigorously and
fearlessly punish such offenders. Such practices are an abuse of the
liberty of the Press.......”43
Justice Blackstone, in his Commentary on the Laws of England, while dealing about the
freedom of press in England observed as follows:
“The liberty of the press, properly understood, is essential to the nature

of a free State; but that this consists inlaying no previous restraints upon
publications, and not in freedom from censure for criminal matter when
published. Every free man has an undoubted right to lay what sentiments
he pleases before the public; to forbid this is to destroy the freedom of
the press. But if he publishes what is improper, mischievous, or illegal,
he must take the consequences of his own temerity..........”44
43
Referred in M. Hasan and Anothers v. Government of Andhra Pradesh, AIR 1998 AP 35:1997(6) ALT
209.
44
Ibid.
26
Lord Denning, in ‘Freedom under the Law’, while dealing with publication of news and
control etc., observed as follows:
“Every country preserves to itself the right to prevent the expression of

views which are subversive of the existing Constitution or a danger to
the fabric of society......... Free and frank discussion and criticism of
matters of public interest must in no way be curtailed, but there comes a
point at which every country must draw the line; and that is when there is
a threat to overturn the State by force....”45
Arthur Hays answers what the freedom of press is in the following words:
“Perhaps we ought to ask ourselves just what freedom of the press really
is. Whose freedom is it? Does it merely guarantee the right of the
publisher to do and say whatever he wishes, limited only by the laws of
libel, public order and decency....? Is it only a special license to those
who manage the units of the press? The answer, of course, is No.
Freedom of the press -- or, to be more precise, the benefit of freedom of
the press belongs to everyone -- to the citizen as well as the publisher.
The publisher is not granted the privilege of independence simply to
provide him with a more favoured position in the community than is
accorded to other citizens. He enjoys explicity defined independence
because it is the only condition under which he can fulfill his role, which
is to inform fully, fairly and comprehensively. The crux is not the
publisher’s ‘freedom to print’; it is rather the citizens’ right ‘to know’.46
2.4.1.1 Whether Press is Citizen
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression only
to human beings who are citizens and non-citizen nationals and foreigners do not enjoy
this right. Rather juristic persons, corporations, societies, associations are not citizens.
This right is available to natural human beings having citizenship of India. Whereas,
Article 19(1)(a) gives freedom to press on the plea that press is constituted of citizens.47
The Supreme Court also dealt with the contention that newsprint policy does not
directly deal with the fundamental right mentioned in Article 19(1)(a). It was also
contended that regulatory statutes which do not control the content of speech but
incidentally limit the ventured exercise are not regarded as a type of law. Any incidental
45
Ibid.
46
Referred in M. Hasan and Anothers v. Government of Andhra Pradesh, AIR 1998 AP 35:1997(6) ALT
209.
47
G.P. Tripathi, “Constitutional Law: New Challenges” Central Law Publications, Allahabad, 2013, p. 368.
27
limitations or restrictions on freedom of speech are permissible as the same is essential
to the furtherance of important governmental interest in regulating freedom of speech.
The Supreme Court negatived the said contention and Justice Nanabhoy Palkhivala
said that:
“The test of pith and substance of the subject matter and of direct and
incidental effect of the legislation are relevant to the questions of
legislative competence but they are irrelevant to the question of
infringement of fundamental rights. In our view this is a sound and
correct approach to interpretation of legislative measures and State
action in relation to fundamental rights. The true test is whether the
effect of the impugned action is to take away or abridge fundamental
rights. If it be assumed that the direct object of the law or action has to
be direct abridgement of the right of free speech by the impugned law or
action it is to be related to the directness of effect and not to the
directness of the subject-matter of the impeached law or action. The
action may have a direct effect on a fundamental right although its direct
subject-matter may be different.”48
Although Article 19(1)(a) does not mentioned the freedom of the press, it is the settled
view of the Supreme Court49 that freedom of speech and expression also includes
freedom of the press and circulation, i.e. the right to print and publish what one pleases,
without any previous permission. Therefore, the imposition of pre-censorship on
publication is violative of the freedom of the press, unless justified under clause (2) of
Article 19.
In the case of Brij Bhushan v. State of Delhi50 in pursuance of section 7(1)(c) of the
East Punjab Public Safety Act, 1949, as extended to the Province of Delhi, the chief
Commissioner of Delhi issued an order against the petitioner, the printer, publisher and
editor of an English weekly ‘the Organiser’ published from Delhi, directing them to
submit, for scrutiny in duplicate before publication till further orders, all communal
matters and news and views about Pakistan including photographs and cartoons other
than those derived from official sources or supplied by the news agencies. The Supreme
Court in its majority decision struck down the said order as violative of Article 19(1)(a)
of the Constitution.
48
Sakal Papers Pvt. Ltd. v. Union of India, AIR 1962 SC 305.
49
Bennett Coleman & Co v. Union of India, AIR 1973 SC 106.
50
AIR 1950 SC 129.
28
Again the Supreme Court in Virendra v. State of Punjab51 held that banning of
publication in the newspapers of its own views or the views of correspondents about the
burning topic of the day. In this case, a petition with regard to the validity of the Punjab
Special Powers (Press) Act, 1956, the Court said that:
“It is certainly a serious encroachment on the valuable and cherished

right to freedom of speech and expression if a newspaper is prevented
from publishing its own views or the views of its correspondents relating
to or concerning what may be the burning topic of the day. Our social
interest ordinarily demands the free propagation and interchange of
views but circumstances may require a reasonable subordination of the
social interest in free speech and expression to the needs of our social
interest in public order. The Constitution recognizes this necessity and
has attempted to strike a balance between the two social interests. It
permits the imposition of reasonable restrictions on the freedom of
carrying on trade or business in the interest of the general public.”
In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India52 the Supreme
Court after pointing out that communication needs in a democratic society should be
met by the extention of specific rights e.g., the right to be informed, the right to inform,
the right to privacy, the right to participate in public communications, the right to
communicate, etc., proceeded to observe as follow:
“In today’s free world freedom of Press is the heart of social and
political intercourse. The press has now assumed the role of the public
educator making formal and non formal education possible in large scale
particularly in the developing world where television and other kinds of
modern communication are not still available for all sections of society.
The purpose of the press is to advance the public interest by publishing
facts and opinions without which a democratic electorate cannot make
responsible judgments. Newspaper being surveyors of news and views
having a bearing on public administration very often carry material
which would not be palatable to Governments and other authorities. The
authors of the article which are published in the newspapers have to be
critical of the action of the Government in order to expose its
weaknesses. Such articles tend to become an irritant or even a threat to
power.”
The Court pointed out that the freedom of speech and expression guaranteed under
Article 19(1)(a) of the Constitution is not for the benefit of the press as it is for the
51
AIR 1957 SC 896.
52
AIR 1986 SC 515:(1985) 2 SCR 287:(1985) 1 SCC 641.
29
benefit of the public. The people have a right to be informed of the developments that
take place in a democratic process and the press plays a vital role in disseminating this
information. Neither the Government nor any instrumentality of the Government or any
public sector undertaking run with the help of public funds can shy away from articles
which expose weaknesses in its functioning and which in given cases pose a threat to
their power by attempting to create obstacles in the information percolating to the
members of the community.53
In series of cases, the Supreme Court struck down the pre-publication ban on
newspapers etc. In Reliance Petrochemical Ltd. v. Proprietors of Indian Express
Newspapers, Bombay Pvt. Ltd.54 the Supreme Court ruled that the pre-publication ban
even under a Court injunction could be justified in the interest of justice only when
there was a clear and imminent danger to the administration of fair justice and not
otherwise.
Thus, a “free press” which is neither directed by the executive nor subjected to
censorship, is a vital element in a free State. The success of democracy depends upon
free, fair, honest and independent press.
In R. Rajagopal v. State of Tamil Nadu55 the petitioner who was the publisher of a
Tamil weekly magazine approached the Supreme Court to restrain the Government
from interfering with their right of publication of the autobiography of the condemned
person Auto Sankar. The Supreme Court held that the Government or their officials
have no right to impose prior restraint upon the publication on the apprehension that
they may be defamed. The Court further held that the right to publish the life story of a
condemned prisoner, in so far as, it appears from the public records, even without his
consent or authorisation, has been held to be included in the freedom of the press
guaranteed under Article 19(1)(a) of the Constituion. The Court reasoned that right to
privacy is implicit in the right to life and liberty guaranteed under Article 21 of the
Constitution. It is a right to be let alone. The prior restrain upon such publication cannot
53
Ibid.
54
AIR 1989 SC 190.
55
AIR 1995 SC 264.
30
be imposed. The freedom of the press that the Indian Media enjoys an extension or a
further realization of freedom of speech and expression.56
The Hon’ble Andhra Pradesh High Court also held in M. Hasan and Another v.
Government of Andhra Pradesh57 that refusal to journalists and videographers
seeking interview with condemned prisoners amounted to deprivation of citizen’s
fundamental right to speech and expression under Article 19(1)(a) of the Constitution.
As far as the exercise of fundamental rights concerned, position of a condemned
prisoner was on par with a free citizen of the country. The Court ruled that he had a
right to give his ideas and he was entitled to be interviewed or to be televised. The
Court observed that when such being the settled position we fail to understand why the
jail authorities shall apprehend such reporting or videography as not reasonable and not
in the interest of safety and security. Even their Jail Manual permits the prisoner to be
interviewed by others including a friend provided he is willing. A friend includes a
journalist and which in turn includes a videographer. There is a letter written by the
condemned prisoners expressing their willingness to be interviewed by the journalist
and the videographer. Under these circumstances, it is not just and proper for the jail
authorities to prevent the petitioners to interview the condemned prisoners orally and by
videographing. Any such denial is deprivation of a citizen’s fundamental right of
freedom of speech and expression.
2.4.2 Telecasting or Broadcasting Rights
The Supreme Court in Secretary, Ministry of Information and Broadcasting,

Government of India v. Cricket Association of Bengal (CAB)58 has expanded the
right to freedom of speech and expression by saying that the right to freedom of speech
and expression includes the right to receive and impart information. For ensuring the
right of free speech of the citizens of this country, it is necessary that the citizens have
the benefit of plurality of views and a range of opinions on all public issues. A
56
Retrieved from <http://wiki.answers.com/Q/What_is_Article_19_1_a_of_the_constitution_of_India>
visited on 10-04-2011.
57
AIR 1998 AP 35:1997(6) ALT 209. Also see State through Supdt. Central Jail, New Delhi v. Charulata
Joshi, AIR 1999 SC 1379 and T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.
58
AIR 1995 SC 1236:(1995) 2 SCC 161.
31
successful democracy posits an aware citizenry. Diversity of opinions, views, ideas and
ideologies is essential to enable the citizens to arrive at informed judgment on all issues
touching them. All these developments of law giving meaning to freedom of speech and
expression or personal liberty are not required to be reconsidered nor there could be
legislation so as to nullify such interpretation except as provided under the exceptions to
fundamental rights.
In this case, six nations cricket match was held in 1993. Cricket Association of Bengal
(CAB) requested Doordarshan to telecast the match. It agreed to pay royalty to
Doordarshan. Later on, the right of telecast was given to foreign T.V. CAB moved
Calcutta High Court pleading that it had fundamental right under Article 19(1)(a) to
telecast the cricket match. It was included in freedom of expression. Subsequently, in
Supreme Court the same plea was taken. The Supreme Court upheld this plea and
directed Doordarshan to provide facilities for telecast. The claim of monopoly of State
over electronic media was denied. Monopoly was not a ground given in Article 19(2) of
the Constitution. No new ground can be evolved for restraining right under Article
19(1)(a).
2.4.3 Commercial Advertisements
Advertisement is included in Article 19(1)(a) of the Constitution of India. In Tata Press

Ltd. v. Mahanagar Telephone Nigam Ltd.59 is an authority for proposition that right
to issue advertisement even if of commerical nature is covered by Article 19(1)(a). It
can be restricted only on any ground given in Article 19(2). The telephone authorities
permitted ‘Tata Press Yellow Pages’ containing advertisements of commercial nature in
telephone directory. A civil suit for injunction was filed by Nigam and also Union of
India claiming monopoly in publication of direcory under Indian Telegraph Act. In an
appeal by Tata against injunction issued by Trial Court and confirmed by the High
Court. The appeal was allowed by the Supreme Court and High Court’s order was set
aside on the ground that advertisement is a kind of commercial speech and is covered
by Article 19(1)(a). Commercial speech is no doubt a commerical transaction,
nevertheless, it is dissemination of information regarding product for the benefit of
59
AIR 1995 SC 2438.
32
public at large. In democratic setup, flow of commercial information is indispensable.
Economic system, in democracy, would suffer handicapped without freedom of
commercial speech. Article 19(1)(a) of the Constitution protects right of individual to
listen, read and receive the commercial speech in advertisements even if it so issued by
business for promotion of trade and business. The protection of Article 19(1)(a) of the
Constitution is available both to the speaker as well as the recipient of the speech.
Therefore, the Nigam or the Union of India could not restrain the appellant from
publishing the ‘Tata Press Yellow Pages’.
In Hamdard Dawakhana v. Union of India60 the Supreme Court had held earlier that
an advertisement of commercial nature was not protected by Article 19(1)(a) of the
Constitution. After Tata Press case61, this view is overruled. As such Hamdard
Dawakhana view is now limited to protection of obnoxious advertisements of
commercial nature. Tata Press case view applies to all advertisements except that are
obnoxious. The Court, however, made it clear that the Government could regulate the
commercial advertisements, which are deceptive, unfair, misleading and untruthful.
2.4.4 Right to Reply or Answer the Criticism against One’s Views
The right to reply, i.e. the right to get published one’s reply in the same news media in
which something was published agaisnt or in relation to a citizen, was a part of the
freedom of speech and expression guaranteed under Artcile 19(1)(a) of the Indian
Constituion, held by the Supreme Court. The Court also stated that a liberal
interpretation should be given to the right to freedom of speech and expression
guaranteed under Article 19(1)(a).62
In Life Insurance Corporation of India v. Manubhai D. Shah63 respondent, the

exective trustee of the Consumer Education and Research Centre (CERC), Ahmedabad,
after undertaking research into the working of the Life Insurance Corporation (LIC),
published a study entitled “A Fraud on Policy Holders - A Shocking Story”. The study
paper portrayed the discriminatory practices adopted by the LIC which adversely
60
AIR 1960 SC 554.
61
AIR 1995 SC 2438.
62
Life Insurance Corporation of India v. Mannubhai D. Shah, AIR 1993 SC 171.
63
AIR 1993 SC 171.
33
affected the interest of a large number of policy holders. The underlying idea was to
point out that unduly high premiums were charged by the LIC from those taking out life
insurance policies thereby denying access to insurance coverage to a vast majority of
people who cannot afford to pay the high premiums. Mr. N.C. Krishnan, a member of
the LIC prepared a counter to the respondent’s study paper and published the same as
an article titled ‘LIC and its policy holders’ in the ‘Hindu’, a daily newspaper,
challenging the conclusions reached by the respondent in his study paper. The
respondent prepared a rejoinder ‘Raw deal for policy Holders’ which too was published
in the same newspaper.
Thereafter, the LIC published its member’s article which was in the nature of a counter
to the respondent’s study paper in its magazine ‘Yogakshema’. On the respondent
learning about the same, he requested that in fairness his rejoinder which was already
published in the ‘Hindu’ should also be published in the said magazine to present a
complete picture to the reader. The LIC refused his request on the ground that their
magazine was an in-house magazine circulated amongst subscribers who were policy
holders, officers, employees and agents of the Corporation and it is not put up in the
market for sale to the general public. On refusal of the LIC to publish his rejoinder in its
magazine ‘Yogakshema’, the respondent filed a writ petition in the Gujarat High Court
which came to the conclusion that the LIC’s stand that the magazine was an in-house
magazine was untenable because it was available to anyone on payment of subscription;
and it invited articles for publication therein from members of the public. The High
Court accepted this petition on the grounds that the magazine was an in-house magazine
the Corporation and members of the public are invited to contribute articles for
publication. LIC covered under the ambit of ‘State’ within the meaning of Article 12
and LIC cannot under the guise of publication of an in-house magazine violate the
fundamental right of the respondent. Thus, the Hon’ble Gujarat High Court held the
refusal by LIC to publish respondent’s rejoinder was arbitrary and violative of Articles
14 and 19(1)(a) and also directed the LIC to publish the rejoinder of the respondent in
the next issue of the said magazine. The LIC appealed against the decision of the High
Court to the Supreme Court. The Hon’ble Supreme Court rejected the appeal of the LIC
34
and held that the LIC being a ‘State’ within the meaning of Article 12 must function in
the best interest of the community. The LIC was created under the Life Insurance
Corporation Act, 1956, to carry on Life Insurance business to the best advantage of the
community. Therefore, the community was entitled to know whether or not this
requirement of the Statute was being satisfied in the functioning of the LIC. The
Supreme Court pointed out that the attitude of the LIC was unfair and unreasonable;
unfair because fairness demanded that both view points were placed before the readers
and unreasonable because there was no justification for refusing publication. By
refusing to print and publish the rejoinder the LIC had violated the respondent’s
fundamental right guaranteed under Article 19(1)(a) of the Constitution.
2.4.5 Right to Exhibition of Films etc.
In a democracy it is not necessary that every one should sing the same song. The
freedom of expression is the rule and it is generally taken for granted. Every one has a
fundamental right to form his opinion on any issue of general concern. He can form and
inform by any legitimate means. The democracy is Government by the people via open
discussion. The Court has accepted that movies, films etc doubtless covered under the
ambit of freedom of speech and expression under Article 19(1)(a) of the consitution.
But at the same time the fundamental freedoms under Article 19(1)(a) can be
reasonably restricted only for the purposes mentioned in Article 19(2) and the
restriction must be justified on the anvil of necessity and not the quicks and of
convenience or expediency.64
One’s ideas, views etc., can be expressed and conveyed by many other modes apart
from the press, for instance, radio, movies, television and cinematograph which
includes videograph. The films are more popular in our country and especially with the
rural masses, if the freedom of speech and expression includes freedom of press the
same can be extended to expression through radios, movies, films, television and
videographs. It is needless to say that freedom of speech and expression includes
freedom of propagation.
64
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
35
In K.A. Abbas v. Union of India65 the constitutionality of exibition of films, as a
media of expression, and its pre-censorship came up before the Supreme Court. Under
the Cinematograph Act, 1952, films are categorised as ‘U’ films and ‘A’ films. ‘U’
films are meant for unrestricted exibitions, whereas ‘A’ films can be shown to adults
only. The petitioner, unable to get ‘U’ certificate for his motion film named “Tale of
Four Cities”, questioned the validity of the Cinematograph Act, 1952 alongwith the
rules made thereunder. The Supreme Court upheld the validity of the Cinematograph
Act, 1952, and said that pre-censorship of films was justified under Article 19(2) as
imposing a reasonable restriction. The Court observed that films have to be treated
separately from other forms of art and expression, because, a motion picture was able to
stir up emotions more deeply than any other product of art. Thus, the classification of
films into two categories, i.e. ‘U’ & ‘A’ films, was, therefore, held to be valid and a
film can be censored on the grounds mentioned under Article 19(2) of the Constituion.
With regard to the power of precensorship, Chief Justice Hidayatulla observed therein
as follows:
“The task of the censor is extremely delicate. ...... .The standards that we
set out for our censors must make a substantial allowance in favour of
freedom thus leaving a vast area for creative art to interpret life and
society with some of its foibles along with what is good. We must not
look upon such human relationship as banned in toto and for ever from
human thought and must give scope for talent to put them before society.
The requirements of art and literature include within themselves a
comprehensive view of social life and not only in its ideal form and the
line is to be drawn where the average man, moral man begins to feel
embarassed or disgusted at a naked portrayal of life without the
redeeming touch of art of genius of social value. If the depraved begins
to see in these things more than what an average person would, in much
the same way as it is wrongly said, a Frenchman sees a woman's legs is
everything, it cannot be helped. In our scheme of things ideas having
redeeming social or artistic value must also have importance and
protection for their growth.”66
In Odyssey Communications Pvt. Ltd. v. Lok Vidayan Sanghatana67 a stay order
issued by the Bombay High Court, restraining telecasting of certain episodes of the
65
AIR 1971 SC 481.
66
Ibid.
67
AIR 1988 SC 1642.
36
serial named “Honi Anhonee” was challenged before the Supreme Court. The leading
queation before the Court was whether these episodes should be prohibited from being
telecast. The Supreme Court held that the right of citizens to exibit films on
Doordarshan, subject to the terms and conditions to be imposed by the Doordarshan, is
a part of the fundamental right of freedom of expression guaranteed under Article
19(1)(a), which can be curtailed only under circumstances set out in Article 19(2) of the
Constitution. The Court observed that a citizen’s right to exhibit films on television is
similar to the right of a citizen to publish his views through any other media such as
newspapers, magazines, advertisements, hoardings etc. subject to the terms and
conditions of the owners of the media. The episodes in question did not violate any law
or any right of the petitioners nor was the serial likely to affect prejudicially the well
being of the people. Thus, showing of these episodes was not likely to endanger public
morality.
In S. Rangarajan v. P. Jagjivan Ram68 the appellant is a film producer. He produced a

Tamil film “Ore Oru Gramathile” and applied for certificate for exhibition of the film.
The examination committee upon seeing the film refused to grant the certificate but on a
reference being made to the 2nd Revising Committee for review and recommendation,
the Committee by a majority of 5:4 recommended the grant of a ‘U’ certificate subject
to deletion of certain scenes. ‘U’ certificate was challenged in the High Court by means
of writ petitions. It was contended before the High Court that the film is treated in an
irresponsible manner, the reservation policy of the Govt. has been projected in a biased
manner and the so-called appeal in the film that ‘India is one’ is a hollow appeal which
touches caste sensitivity of the Brahmin forward caste. It was also asserted that the film
would create law and order problem in Tamil Nadu. The writ petitions were dismissed
by the Single Judge but upon appeal they were allowed and the ‘U’ certificate issued to
the appellant-producer was revoked. These two appeals, one by the producer of the film
and the other by the Union of India have been filed by special leave of challenging the
decision of the High Court. The principal contentions raised on behalf of the appellants
were:
68
(1989) 2 SCC 574.
37
(i) That the fundamental right of freedom of free expression guaranteed under the
Constitution covers even the medium of movies; that the opinion on the film ought
not to be rested on the isolated passages disregarding the main theme and its
message;
(ii) That the Court should not concern itself with the correctness or legality of the views
expressed in the film and the Court cannot limit the expression on any general issue
even if it is controversial and that the writings of the film must be considered in a
free and liberal manner in the light of the freedom of expression guaranteed under
the Constitution.
It was asserted that the theme of the film is that reservation could be on the basis of
economic backwardness instead of caste. The counsel for the respondents was critical
about the manner in which the reservation policy of the Govternment has been
condemned and the events and the characters portrayed in the film, as they are depicted
in a biased manner and reaction to the film in Tamil Nadu is bound to be volatile and
likely to create law and order problem. The Supreme Court observed that the motion
pictures were originally considered as a form of amusement to be allowed to titillate but
not to arouse. They were treated as mere entertainment and not an art or a means of
expression. Movie motivates thought and action and assures a high degree of attention
and retention. It makes its impact simultaneously arousing the visual and aural senses.
The movie had unique capacity to disturb and arouse feelings. It has as much potential
for evil as it was for good. It has an equal potential to instil or cultivate violent or good
behaviour. Censorship by prior restraint is, therefore, not only desirable but also
necessary. The Censors Board should exercise considerable circumspection on movies
affecting the morality or decency of our people and cultural heritage of the country. The
moral values in particular, should not be allowed to be sacrificed in the guise of social
change or cultural assimilation. The censors should be responsive to social change and
they must go with the current climate. The censors may display more sensitivity to
movies which will have a markedly deleterious effect to lower the moral standards of
those who see it. If the film is unobjectionable and cannot constitutionally be restricted
under Article 19(2), freedom of expression cannot be suppressed on account of threat of
38
demonstration and processions or threats of violence. That would tantamount to
negation of the rule of law and surrender to black mail and intimidation. It is the duty of
the State to protect the freedom of expression since it is a liberty guaranteed against the
State. The State cannot plead its inability to handle the hostile audience problem. It is its
obligatory duty to prevent it and protect the freedom of expression. The Revising
Committees have approved the film. The members thereof come from different walks of
life with variegated experiences. They represent the cross section of the community.
They have judged the film in the light of the objectives of the Act and the guidelines
provided for the purpose. There is nothing wrong or contrary to the Constitution in
approving the film for public exhibition. The framework of the Indian Constitution
differs from the First Amendment to the U.S. Constitution. Article 19(1)(a) guarantees
to all citizens the right to freedom of speech and expression. The freedom of the
expression means the right to express one’s opinion by words of mouth, writing,
printing, picture or in any other manner, it would thus include the freedom of
communication and the right to propagate or publish opinions. The communication of
ideas could be made through any medium, newspaper, magazine or movie. But this
right is subject to reasonable restrictions on grounds set out under Article 19(2).
Reasonable limitations can be put in the interest of sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence. In
matters of certification of films, it is necessary to take prompt action by the respective
authorities. The producer who has invested a large capital should not be made to wait
needlessly. He has a statutory right to have the validity of the film determined in
accordance with law. It would be, therefore, proper and indeed appreciative if the film
is reviewed as soon as it is submitted. It is not proper to form an opinion by dwelling
upon stray sentences or isolated passages disregarding the main theme. The democratic
form of Government itself demands its citizens’ an active and intelligent participation as
a basic features and a rational process of democracy which distinguishes it from all
other forms of Government Public discussion on issues relating to administration had
positive value. Our commitment to freedom of expression demands that it cannot be
suppressed unless the situations created by allowing the freedom are pressing and the
39
community interest is endangered. The anticipated danger should not be remote,
conjectural or far fetched. It should have proximate and direct nexus with the
expression. The expression of thought should be intrinsically dangerous to the public
interests. In other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a ‘spark in a power keg’. It is difficult to understand
how the expression in the film with criticism of reservation policy or praising the
colonial rule will affect the security of the State or sovereignty and integrity of India.
There is no utterance in the film threatening to overthrow the Government by unlawful
or unconstitutional means. There is either no talk of secession nor is there any
suggestion for impairing the integration of the country. The film seems to suggest that
the existing method of reservation on the basis of caste is bad and reservation on the
basis of economic backwardness is better. The film also deprecates exploitation of
people on caste considerations. The fundamental freedom under Article 19(1)(a) can be
reasonably restricted only for the purposes mentioned in Art. 19(2) and the restriction
must be justified on the anvil of necessity and not the quicks and of convenience and
expediency. Open criticism of Government policies and operations is not a ground for
restricting expression. We must practice tolerance to the views of others. Intolerance is
as much dangerous to democracy as to the person himself. The Court allowed the
appeals, set aside the judgment of the High Court and dismissed the writ petitions.
The Apex Court felt the necessity of environment education and directed the concerned
authorities to make it mandatory for the cinema halls to show slides upon environment
education before the exhibition of movies. The Court further directed to the
Government, Media, Doordarshan and All India Radio to ensure environment related
programs to educate the masses. In a wider interpretation to the phrase ‘speech and
expression’ the Apex Court held that it is a fundamental right to be educated in the
matters of environment conservation and directed the Universities and the Education
Boards to make ‘environment education’ as a compulsory subject in their courses.69
The Supreme Court in Life Insurance Corporation of India v. Manubhai D. Shah70

held that a film-maker has a fundamental right to exhibit his film on Dooddarshan under
69
M.C. Mehta v. Union of India, 1992 SCC 382.
70
AIR 1993 SC 171.
40
Article 19(1)(a) of the Constitution. In this case, the respondent, Cinemart Foundation
produced a documentary film on the Bhopal Gas Disaster titled “Beyond Genocide”
which was awarded the Golden Lotus, being the best non-feature film of 1987. At the
time of the presentation of awards, the Union Minister for Information & Broadcasting,
had declared that the award winning films would be telecast on Dooddarshan. The
respondent submitted his film to Doordarshan for telecast but Doordarshan refused to
telecast the same on the grounds that (i) the film was out dated (ii) it had lost its
relevance (iii) it lacked moderation and restraint (iv) it was not fair and balanced (v)
political parties have raised various issues concerning the tragedy and (vi) claims for
compensation by victims were sub-judice. Thus, the Court observed that the respondent
had the right to convey his perception of the gas disaster in Bhopal through the
documentary film. Merely because, it was critical of the State Government was no
reason to deny selection and publication of the film. In fact, the community was keen to
know what actually had happened, what was happening, what remedial measures the
State Government was taking and what were the likely consequences of the gas leak.
Again in Bobby Art International v. Om Pal Singh Hoon71 the Hon’ble Supreme
Court upheld the grant of ‘A’ certificate to the film named “Bandit Queen” and held
that the censor of nudity, rape and the use of expletives exhibited in the film were in aid
of the theme and were not intended to arouse prurient or lascivious thoughts, but
intended to arouse revulsions against the prepetrators and pity for the victim.
2.4.6 Right to Fly National Flag
The Hon’ble Supreme Court in Union of India v. Naveen Jindal72 held that right to fly
the National Flag freely with respect and dignity is a fundamental right of a citizen
within the meaning of Article 19(1)(a) of the Constitution, being an expression and
manifestation of his allegiance and feelings and sentiments of pride for the Nation, so
long as the expression is confined to nationalism, patriotism and love for motherland. It
cannot be used for commercial purpose or otherwise. The same is not an absolute right
but a qualified one, subject to reasonable restrictions under clause (2) of Article 19 of
the Constitution. The Emblems and Names (Prevention of Improper Use) Act, 1950,
71
AIR 1996 SC 1846:(1996) 4 SCC 1.
72
AIR 2004 SC 1559:(2004) 2 SCC 476.
41
and the Prevention of Insults to National Honour Act, 1971, regulate the use of the
National Flag.
2.4.7 Right to Remain Silent
In Bijoe Emmanuel v. State of Kerala73 three children belonging to Jehovah’s

Witnesses were expelled from the school for refusing to sing the National Anthem
during school prayers. They used to stand up respectfully when the National Anthem
was being sung, but did not join in singing it. The Kerala High Court upheld their
expulsion from the school on the ground that they committed an offence under the
Prevention of Insults to National Honours Act, 1971. However, the Hon’ble Supreme
Court reversed the decision of the Kerala High Court. The Supreme Court held that no
person could be compelled to sing the National Anthem, if he has genuine conscientious
objections based on his religious belief. There is no provision of law which obliges
anyone to sing the National Anthem nor do we think that it is disrespectful to the
National Anthem, if a person who stands up respectfully when the National Anthem is
sung does not join the signing. It is true Article 51-A(a) of the Constitution enjoins a
duty on every citizen of India “to abide by the Constitution and respect its ideals and
institutions, the National Flag and the National Anthem.” Proper respect is shown to the
National Anthem by standing up when the National Anthem is sung. It will not be right
to say that disrespect is shown by not joining in the singing. Thus, the expulsion of the
children from that school was a violation of their fundamental right under Article
19(1)(a) of the Constitution which also included freedom of silence.
2.4.8 Right against Noise Pollution
The emerging judicial view is that the freedom of speech can be exercised by a person
subject to keeping the level of noise pollution within bearable limits. Although noise
pollution has not been mentioned in Article 19(2) as a ground for which reasonable
restrictions can be imposed on the freedom of speech, the Courts have implied this
limitation from Article 19(1)(a) itself. The Courts raised the question: can a person
exercise his right, so as to interfere with the freedom of others? The Courts have
answered this question as follows:
73
AIR 1987 SC 748:(1986) 3 SCC 615.
42
“when a person enjoys his rights under Article 19(1)(a), he must do so
causing very minimum inconvenience to others. A person cannot claim
his freedom of speech so as to interfere with the human rights and
fundamental rights of others”.74
In K. Venu v. Director General of Police75 a single Judge of the Kerala High Court
expressed the view that he was not inclined to hold that the right to use loudspeakers
was fundamental right in itself on the ground that sound pollution was an accepted
danger and indiscriminate use of loudspeakers could not be permitted. Further in P.A.
Jacob v. Superintend of Police, Kottayam76 the Kerala High Court has taken noise
pollution into account saying “exposure to high noise is a known risk.” The Court has
observed that “if an absolute right is conceded in this behalf, it will be an unlimited
charter for aural aggression”. However wide a right is, it cannot be as wide as to destroy
similar or other rights of others. And, further the High Court has said: “The right to
speech implies the right to silence. It implies freedom, not to listen, and not be forced to
listen”
The Calcutta High Court in Moulana Mufti Syed Md. Noorur Rehman Barkati v.
State of West Bengal77 held that Article 19(1)(a) of the Constitution protected the
citizens against excessive sound and upholding the restrictions on the use of
loudspeakers at the time of giving azan on the ground of noise pollution. The Court has
stated that excessive noise certainly causes pollution in society. Under Article 19(1)(a),
read with Article 21, the citizens have a right of a decent environment and have a right
to live peacefully, right to sleep at night and a right to leisure which are all necessary
ingredients of the right to life guaranteed. The Court further held that no one can, under
Article 19(1)(a), claim an absolute rights to suspend others basic human rights and
fundamental rights.
The Hon’ble Supreme Court has ruled in Church of God (Full Gospel) in India v.
K.K.R. Majestic Colony Welfare Association78 that the question of religious freedom
74
New Road Brothers v. Commissioner of Police, Ernakulam, AIR 1999 Ker. 262.
75
AIR 1990, Ker. 344.
76
AIR 1993 Ker 1.
77
AIR 1999 Cal. 15. Also see Masood Alam v. Commissioner of Police, AIR 1956 Cal. 9 and
Bijayananda Patra v. District Magistrate, Cuttack, AIR 2000 Orissa 70.
78
AIR 2000 SC 2773:(2000) 7 SCC 282. Also see Om Biranguna Religious Society v. State of West
Bengal, (1996)100 CWN 617.
43
does not arise as no religion requires that prayers be performed through voice
amplifiers. The Court directed the guidelines framed by the Government under the
relevant rules framed under Environment Protection Act, 1986, must be followed by the
concerned authorities. The Court further observed that:
“Undisputedly, no religion prescribes that prayers should be performed

by disturbing the peace of others nor does it preach that they should be
through voice amplifiers or beating of drums. In our view, in a civilized
society in the name of religion, activities which disturb old or infirm
persons, students or children having their sleep in the early hours or
during daytime or other persons carrying on other activities cannot be
permitted. It should not be forgotten that young babies in the
neighbourhood are also entitled to enjoy their natural right of sleeping in
a peaceful atmosphere. A student preparing for his examination is
entitled to concentrate on his studies without there being any
unnecessary disturbance by the neighbours. Similarly, the old and the
infirm are entitled to enjoy reasonable quietness during their leisure
hours without there being any nuisance of noise pollution. Aged, sick,
people afflicted with psychic disturbances as well as children up to 6
years of age are considered to be very sensible to noise. Their rights are
also required to be honoured.”
2.4.9 Right to Receive Information
The right to ‘freedom of speech and expression’ in Article 19(1)(a) has been held to
include the right to acquire information and disseminate the same. It includes the right
to communicate it through any available media whether print or electronic or audio-
visual, such as advertisements, movie, articles or speech etc. This freedom includes the
freedom to communicate or circulate one’s opinion without interference to as large a
population in the country, as well as abroad, as it is possible to reach. The Supreme
Court giving a broad dimension to Article 19(1)(a) said that freedom of speech not only
includes communication but also receipt of information as they are the two sides of the
same coin. Right to know is a basic right of the citizens of a free country and Article
19(1)(a) of the Constituion protects this right. The right to receive information springs
from the right to freedom of speech and expression guaranteed under Article 19(1)(a).
The freedom to receive and to communicate information and ideas without interference
is an important aspect of the freedom of speech and expression because without
adequate information, a person cannot form an informed opinion.79
79
M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2012, p.
1081, 1083.
44
In State of Uttar Pradesh v. Raj Narain80 the Supreme Court held that Article
19(1)(a) not only guarantees freedom of speech and expression, it also ensures and
comprehends the right of the citizen to know, the right to receive information regarding
matters of public concern. The Government is not the owner, but timely trusted with
rights of the real beneficiary on the estate of the State. Similar views were expressed,
while upholding that “right to know is implicit in right of free speech and expression,
and disclosure of information regarding functioning of the Government must be the
rule.”81
The Hon’ble Supreme Court observed that:

“We are in a democratic polity where dissemination of information is the
foundation of the system. Keeping the citizens informed is an obligation of
the Government. It is equally the responsibility of society to adequately
educate every component of it so that the social level is kept up.”82
Further in Secretary, Ministry of Information & Broadcasting, Government of
India v. Cricket Association of Bengal83 the Supreme Court reiterated the proposition
that the freedom of speech and expression includes the right to acquire information and
to disseminate the same. In the Tata Press Case84 the Supreme Court concluded that
the “commercial speech” cannot be denied the protection of Article 19(1)(a) merely
because the same is issued by businessmen. “Commercial speech” is a part of freedom
of speech guaranteed under the Article 19(1)(a). The public at large has a right to
receive the “commercial speech” and the Article protects the right of an individual “to
listen, read and receive” the “commercial speech”. The protection of the Article is
available both to the speakers as well as the recipient of the speech.
It has been ruled that when a substantially significant population body is illiterate or
does not have easy access to ideas or information, it is important that all available
means of communication, particularly audio-visual communication, are utilised not just
for entertainment but also for education, information, propogation of scientific ideas
and the like.85
80
AIR 1975 SC 865:(1975) 4 SCC 428.
81
S.P.Gupta v. Union of India, (1981) Suppl. SCC 87.
82
M.C. Mehta v. Union of India, 1992 SCC 382.
83
AIR 1995 SC 1236.
84
AIR 1995 SC 2438: (1995) 5 SCC 139.
85
Union of India v. The Motion Picture Association, AIR 1999 SC 2334.
45
The Hon’ble Supreme Court in Dinesh Trivedi, M.P and Others v. Union of India86
observed that in modern constitutional democracies, it is axiomatic that citizens have a
right to know about the affairs of the Government which, having been elected by them,
seek to formulate sound policies of governance aimed at their welfare. The Court
further observed that democracy expects openness and openness is concomitant of a
free society and the sunlight is a best disinfectant. The Delhi High Court emphasised
that the right to receive information acquires great significance in the context of
elections87 and ruled that the Election Commission shall secure the antecedents of the
candidates including assets, education etc. for the perusal of the voters. This is not an
extra qualification imposed by the High Court but what the Hon’ble High Court was
seeking to achieve is that a voter after knowing the background of the candidate will vote
properly. On appeal the Hon’ble Supreme Court agreed with the Delhi High Court and
upheld the right of a voter to know about the antecedents of a candidate as a part of his
fundamental right under Article 19(1)(a). Democracy cannot survive without free and
fairly informed voters. Subsequently the Central Government amended the
Representation of the People Act, 1951, by passing the Representation of the People
(Third Amendment) Act, 2002.
It is, thus, quite clear that right to acquire and get information is a fundamental right under
the Indian Constitution. But what type of information it includes? Obviously, not all types
of information, but only the information relating to matters of public or common
importance affecting people in general. Till now, most of the Government Departments
were denying information to the public under the Official Secret Act. But various
judgments quoted above have given this right to people and it will no longer be possible
for Government to deny such information unless it does not concern the public at all.88
2.5 REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH AND

EXPRESSION
In modern State, it has been realised that freedoms cannot be guaranteed in absolute
terms and cannot be uncontrolled. For, an organised society it is a pre-condition for civil
86
(1997) 4 SCC 306: (1997) 1 SCJ 697.
87
Association for Democratic Reforms v. Union of India, AIR 2001 Del.126.
88
B.P. Srivastava, “Constitutional Provisions and Judicial Pronouncements on Freedom of Information”
Orissa Review, November 2006, p. 87-93. Retrieved from <http://orissa.gov.in/e-magazine/ Orissareview
/nov-2006/engpdf/87-93.pdf> 24-08-2008.
46
liberties. While absolute power results in tyranny, absolute freedoms lead to ruin and
anarchy.89 Justice Patanjali Shastri observed that:
“Man as a rational being desires to do many things, but in a civil society

his desires have to be controlled, regulated and reconciled with the
exercise of similar desires by other individuals.”90
The fundamental rights of citizens and of human beings in civilized society, based upon
co-operation, are not absolute and unconditional. They are defined and limited by the
very nature of the social organization, the demand of industry and the needs of mutual
co-operation in a widespread division of labour. Freedom is a convenient term to
express some of these rights. But absolute freedom, in the sense of freedom to action by
undisciplined impulses can only belong to the savage cave dwellers or the beast of the
jungle. Rights are coupled with or conter balanced by obligations or duties of
citizenship, which need as much to be emphasized as rights.91
The Supreme Court while dealing with the question as to how far the above rights can
be exercised held that possession and enjoyment of such rights are subject to reasonable
restrictions and conditions. As such control is necessary and essential to the safety,
health, peace, general order and morale of the community. In a free and democratic
society a citizen has right to say what he wishes.92 However, it is the duty of the
Constitution that a balance be struck between individual liberty and social control as
explained by the Supreme Court.93
It is difficult to give an exact definition of the word ‘reasonable’.94 What is reasonable

restriction or whether such a restriction abuses a fundamental right? There is no
definite test to adjudicate reasonableness of a restriction. It is the duty of the Court to
decide and each case is to be judged on its own merits. In other words, no abstract
standard or general pattern of reasonableness is applicable uniformly to all cases. 95 The
89
Willis, “Constitutional Law and the United States” p. 477.
90
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
91
The Framing of India’s Constitution-Select Documents, Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 2012, Vol.II, p. 48.
92
Divisional Forest Officer v. Biswanath Tea Company, AIR 1981 SC 1368.
93
K.K. Kochuni v. State of Madras, AIR 1960 SC 1080. Also see Collector of Customs, Madras v.
Nathella Sampathu Chetty, AIR 1962 SC 316.
94
Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujrat) Pvt. Ltd. and Anothers, AIR
1989 SC 973.
95
M.P. Jain, “Indian Constitutional Law” Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon 2012, p.
1073.
47
fundamental rights are allowed to be enjoyed and there shall be great restraint of their
interference by executive action and the executive cannot interfere without the sanction
of law authorising such act or interference.
The term ‘reasonable’ implies intelligent care and deliberation, i.e. the choice of a
course, which reason dictates. It seeks to strike a balance between the individual right
secured by Article 19(1) and social control permitted by Article 19(2) to (6) of the
Constitution.96 However, this right is not absolute and reasonable restrictions can be
imposed in the interest of sovereignty and integrity of India, security of the state,
friendly relations with foreign states, public order, decency and morality and contempt
of court, defamation and incitement to an offence.97 It may be noticed that reasonable
restrictions under clause (2) of Article 19 can be imposed only by a duly enacted law
and not by executive action unsupported by law.98
The limitations imposed by Articles 19(2) to 19(6) on the freedoms guaranteed by

Articles 19(1)(a) to (g) of the Constitution serve two fold purposes, viz.,
i) they specify that these freedoms are not absolute but are subject to regulation;
ii) they put a limitation on the power of a legislature to restrict these freedoms. A
legislature cannot restrict these freedoms beyond the requirements of Articles
19(2) to 19(6).99
The Supreme Court also took note of the test of reasonableness in these words:
“It is important in this context to bear in mind that the test of

reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard or general pattern,
of reasonableness can be laid down as applicable to all cases. The nature
of the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict.”100
96
Union of India v. Motion Pictures Association, AIR 1999 SC 2334.
97
Article 19(2) of the Constitution of India.
98
Krishnan Kakkanth v. State of Kerala, AIR 1997 SC 128. Also see Kharak Singh v. Stata of U.P., AIR
1963 SC 1295.
99
M.P. Jain, p. 1072.
100
State of Madras v. V.G. Row, Union of India & State Interveners of Travancore, AIR 1952 SC 196:
1952 SCR 597.
48
The Supreme Court, in several cases, has laid down the following guidelines for
determining the reasonableness of restrictions:
1. It is the Courts and not the Legislature that will decide whether a restriction is
reasonable or not.101
2. Restriction must not be arbitrary, unbridled and excessive. Moreover, the restriction
must not be beyond what is required in public interest and must be consistent with
Article 14 of the Constitution.102
3. There is no fixed standard for reasonableness. Each case must be decided on its own
merits.103
4. The restriction must be reasonable from both substantive as well as procedural

standpoint and the time and duration of the restriction cannot be unlimited.104
5. Restrictions imposed due to implementation of Directive Principles may deem to be

reasonable.105
6. The test of reasonability must be objective in the sense that it does not matter what a
Judge or Court thinks what is reasonable but what a normal reasonable person
would think.106
7. There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved and must not be
excessive.107
8. It is the reasonableness of the restriction which is to be determined by the Court and

not the reasonableness of the law authorising the imposition of restriction.108
9. Restriction, under certain circumstances, may also amount to prohibition.109
101
Chintaman Rao v. State of M.P., AIR 1951 SC 118.
102
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200.
103
Dharam Dutt v. Union of India, AIR 2004 SC 1295.
104
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200.
105
State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
106
Sharda v. Dharampal, AIR 2003 SC 3450.
107
M.R.F. Ltd. v. Inspector, Kerala Government, AIR 1999 SC 188.
108
N.B. Khare v. State of Delhi, AIR 1950 SC 211.
109
Narendra Kumar v. Union of India, AIR 1960 SC 430.
49
A principle of freedom of speech asserts some range of protection for speech that goes
beyond limitations on Government interference with other activities. While a minimal
principle of liberty maintains that Government should not inhibit communications that
pose no legitimate threat of harm, a distinctive principle of freedom of speech poists
more robust constraints.110
2.5.1 Grounds of Restrictions on Freedom of Speech and Expression

It is necessary to maintain and preserve freedom of speech and expression in a
democracy, so also it is necessary to place some curbs on this freedom for the
maintenance of social order. No freedom can be absolute or completely unrestricted.111
Article 19(2) specifies the grounds to which reasonable restrictions on the freedom of
speech and expression can be imposed:
a) Security of State: Under Article 19(2) reasonable restrictions can be imposed on

fredom of speech and expression in the interest of security of State. The term
‘security of state’ refers only to serious and aggravated forms of public disorder e.g.
rebellion, waging war against the State, insurrection and not ordinary breaches of
public order and public safety, e.g. unlawful assembly, riot, affray. While, speeches
or expressions on the part of an individual, which incite to or encourage the
commission of violent crimes, such as murder, are matters which would undermine
the security of State.112 The expression ‘security of the state’ in Article 19(2) does
not merely mean as danger to the security of the entire country, but endangering the
security of a part of the State would also involve a threat to the security of the
State.113
b) Friendly relations with Foreign States: This ground was added by the
Constitution (First Amendment) Act, 1951. The object behind the provision is to
prohibit unrestrained malicious propaganda against a foreign friendly state, which
may jeopardise the maintainance of good relations between India and that State. No
110
Kent Greenawalt, “Free Speech Justifications” in Mahendra P. Singh (eds.), Comparative
Constitutional Law, Eastern Book Company, Lucknow, 2011, p. 369.
111
1104.
112
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
113
Ram Nandan v. State, AIR 1959 All. 101.
50
similar provision is present in any other Constitution of the World. In India, the
Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian
citizens against foreign dignitaries. Interest of friendly relations with foreign States,
would not justify the suppression of fair criticism of foreign policy of the
Government. It is to be noted that members of the Commonwealth including
Pakistan is not a ‘foreign state’ for the purposes of this Constitution. The question
arises before the Supreme Court whether a restriction can be imposed on the freeom
of speech and expression on the ground of its prejudicial to a Commenwealth
counrty. The Court stated that a counrty may not be regarded as a foreign State for
the purpose of the Constitution, but may be regarded as a foreign power for other
purposes.114 The result is that freedom of speech and expression cannot be restricted
on the ground that the matter is adverse to Pakistan.
c) Public Order: This ground was also added by the Constitution (First Amendment)
Act, 1951. The concept of ‘public order’ is wider than ‘security of state’.115 ‘Public
order’ is an expression of wide connotation and signifies that state of tranquility
which prevails among the members of political society as a result of internal
regulations enforced by the Government which they have established. Public order
is something more than ordinary maintenance of law and order. ‘Public order’ is
synonymous with public peace, safety and tranquility.116 The test for determining
whether an act affects law and order or public order is to see whether the act leads to
the disturbances of the current of life of the community so as to amount to a
disturbance of the public order or whether it affects merely an individual being the
tranquility of the society undisturbed.117
Anything that disturbs public tranquility or public peace disturbs public order. Thus,
communal disturbances and strikes promoted with the sole object of causing unrest
among workmen are offences against public order. Public order thus, implies
absence of violence and an orderly state of affairs in which citizens can peacefully
114
Jagan Nath v. Union of India, AIR 1960 SC 675.
115
Romesh Thappar v. State of Madras, AIR 1950 SC 124.
116
Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
117
Collector & District Magistrate v. S. Sultan, AIR 2008 SC 2096.
51
pursue their normal avocation of life. Thus, creating internal disorder or rebellion
would affect public order.118 However, mere criticism of Government does not
necessarily disturb public order.119 In its external aspect ‘public safety’ means
protection of the country from foreign aggression. Under public order the State
would be entitled to prevent propaganda for a state of war with India. The words ‘in
the interest of public order’ includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder.
Thus, a law punishing utterances made with the deliberate intention to hurt the
religious feelings of any class of persons is valid because it imposes a restriction on
the right of free speech in the interest of public order since such speech or writing
has the tendency to create public disorder even if in some cases those activities may
not actually lead to a breach of peace. But there must be reasonable and proper
nexus or relationship between the restrictions and the achievements of public
order.120
d) Decency or Morality: These are terms of variable content having no fixed meaning
for ideas about decency or morality; vary from society to socisty and time to time
depending on the standards of morals prevailing in the contemporary society.121
Thus, words ‘morality’ or ‘decency’ are words of wide meaning. Sections 292 to
294 of the Indian Penal Code provide instances of restrictions on the freedom of
speech and expression in the interest of decency or morality. These sections prohibit
the sale or distribution or exhibition of obscene words, etc. in public places. 122 The
Apex Court123 ruled that the words ‘decency and morality’is not confined to sexual
morality alone. The ordinary meaning of the ‘decency’ indicates that the action must
be in conformity with the current standards of behaviour or propriety. The Court has
cited with approval the following observations from an English case124
118
Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
119
Jawali v. State of Mysore, AIR 1966 SC 1387.
120
Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
121
1109.
122
Ranjit Udeshi v. State of Maharashtra, AIR 1965 SC 881.
123
Ramesh Y. Prabhoo v. Prabhakar Kashinath Kunte, AIR 1996 SC 1113.
124
Knuller(Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions, (1972) 2 All ER
898. Also referred in Director General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346.
52
“….Indecency is not confined to sexual indecency; indeed it is difficult to find any
limit short of saying that it includes anything which an ordinary decent man or
woman would find to be shocking, disgusting or revolting….”
e) Contempt of Court: Restriction on the freedom of speech and expression can be

imposed if it exceeds the reasonable and fair limit and amounts to contempt of
court. It cannot be held as law that in view of the constitutional protection of
freedom of speech and expression, no one can be proceeded with for the contempt
of court on the allegation of scandalising or intending to scandalise the authority of
any Court.125 Section 2(a) of the Contempt of Courts Act, 1971, provides that
‘contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt’.
f) Defamation: A statement, which injures a man’s reputation, amounts to

defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt.
According to Winfield126, defamation is the publication of a statement which
reflects on a person’s reputation and tends to lower him in estimation of right-
thinking members of society generally or tends to make them shun or avoid him.
The civil law relating to defamation is still uncodified in India and subject to certain
exceptions. Section 499 of the Indian Penal Code, 1860, defines the offence of
defamation. It recognises both slander and libel.
g) Incitement to an offence: This ground was also added by the Constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot
confer a right to incite people to commit offences. The word ‘offence’ is defined as
any act or omission made punishable by law for the time being in force. The
incitement to an offence does not refer to incitement to break a law. Thus, an
incitement to a breach of every civil law is not necessarily contemplated by Article
19(2).
h) Sovereignty and Integrity of India: This ground was also added to Article 19(2)
by the Consitution (Sixteenth Amendment) Act, 1963. The main purpose is to guard
the freedom of speech and expression from being used to assail the sovereignty and
territorial integrity of the Country.
125
Re: Arundhati Roy, AIR 2002 SC 1375.
126
Winfield and Jolowicz on Tort, 274 (1979).
53
Sedition: It should be noted that the sedition is not mentioned in clause (2) of Article 19
as one of the grounds on which restrictions on freedom of speech and expression may
be imposed. As understood by English law, sedition embraces all those practices
whether by words, or writing which are calculated to disturb the tranquility of the State
and lead ignorant person to subvert the government. The Supreme Court held that
section 124-A of the Indian Penal Code, 1860 was limited to acts involving an intention
or a tedency to create disorder or disturbance of law and order or incitement to violence
and was not violative of Article 19(1)(a) read with Article 19(2) of the Constitution.127
2.5.2 Fundamental Duties

Further restrictions have been imposed on the freedom of speech and expression by
Article 51A defining fundamental duties of a citizen (42nd Amendment in 1976). Under
Article 51A, no one should in exercise of the freedom of expression or of the press do
any of the following acts:
1. to disparage the constitution, its ideals and institutions, the National Flag or the
National Anthem;
2. to undermine the sovereignty, unity and integrity of India;
3. to disrupt the spirit of common brotherhood among all the people; and
4. to insult the rich heritage of our composite culture.
2.6 WHY WE NEED SEPARATE ENACTMENT INSPITE OF

CONSTITUTIONAL PROVISIONS
The right to access information held by public bodies is a fundamental human right of
every citizen, protected under the Constitution of India. It is accepted by Supreme Court
that Right to information is an inherent part of right to freedom of speech and
expression under Article 19(1)(a) and the right to life and personal liberty under Article
21 of the Constitution. But then, the question arises why we need a separate law for
freedom of information when there is a constitutional provision. In spite of
Constitutional provisions, which guaranteed fundamental rights, there are certain
reasons to do so, like, (i) the provisions of Part-III are not only providing the
127
Kedar Nath v. State of Bihar, AIR 1962 SC 955.
54
fundamental rights, these are just the enabling clauses authorizing the Parliament to
enact laws for creating the provisions for interpretation of various fundamental rights
enshrined in Part III of the Constitution of India. We need comprehensive legislation on
each and every right guaranteed under Part III of the Constitution. That is why, right to
information must be guaranteed by a strong legislation and the process of law-making
itself must be participatory; and (ii) we have not been able to create a culture and
climate where values of freedom, rights and a democratic way of life are respected. One
of the purposes of making laws like the right to information, which is primarily a human
right, is to help create this culture.128
2.7 CONCLUSION
It can be easily concluded that right to freedom of speech and expression is one of the
most important fundamental rights. It includes circulating one’s views by words or in
writing or through audio-visual instrumentalities, advertisements or through any other
communication channel. It also comprises of right to information, freedom of press etc.
Thus, this fundamental right has a vast scope. From the above case law analysis, it is
evident that the Court has always placed a broad interpretation on the value and
contents of Article 19(1)(a), making it subjective only to the restrictions permissible
under Article 19(2). Efforts by intolerant authorities to curb or choke this freedom have
always been firmly repelled, more so when public authorities have betrayed tyrannical
tendencies.
128
Retrieved from <http://orissa.gov.in/e-magazine/Orissareview/nov-2006/engpdf/108-114.pdf> visited
on 24-08-2008.
55
RIGHT TO FREE SPEECH IN A CENSORED DEMOCRACY
Subhradipta Sarkar!
‘I disapprove of what you say, but I will defend to the death your right to say it.’ – Voltaire
I. INTRODUCTION
Official accounts claim that Indian film industry is the largest in the world producing over a
thousand films in a year screened over 13,000 cinema halls in the country. Every three months an
audience as large as the country’s entire population flocks to the cinema halls.1 Notwithstanding
the industry’s gigantic volume, so long one makes stereotype commercially viable movies with
only songs and dance sequences and follow common formulas of entertainment – there is no
harm; but the moment, one dares to speak out the truth against the State articulating his opinion
on any sensitive or serious matter through his films or documentaries, which may not be
palatable to certain power holders; he is swimming into troubled waters. There is ample
possibility of facing censor scissors or political ban.
While several films like ‘Water’, ‘Final Solution’, ‘War and Peace’ and many more ran into
serious trouble with the Central Board of Film Certification (hereinafter Censor Board or Board)
as they were restrained in the name of ‘public interest’, other films like ‘The Da Vinci Code’, the
very recent ‘Deshdrohi’ (Traitor) had to fight political censorship even after Censor Board’s
approval. These are in no way stray incidents but almost a systematic trend in India. Apparently,
those incidents may be pooh-poohed as political gimmicks or other trifles, but there is a much
deeper aspect involved – subjugation of freedom of speech and expression.
Freedom of speech and expression is the concept of being able to express oneself freely whether
through words of mouth, literature, art, or any other medium of communication. It is often
regarded as an integral concept in modern liberal democracies. On the other hand, censorship
represents denial of freedom of speech, of expression and of information. Despite the fact that
the Constitution of India does not expressly mention motion pictures as a medium of speech and
!
The author holds M.Phil. and LL.M. (Human Rights Law) degrees from the National Law School of India
University (NLSIU), Bangalore. He had completed LL.B. degree from the University of Calcutta (2003). After
graduating from NLSIU, he associated himself with People’s Watch, a national level Human Rights organization as
a Law Researcher for more than two years (2005-08). Later on, he taught as a Lecturer in Law at Bangalore Institute
of Legal Studies (BILS), Bangalore. Presently, he is an Assistant Professor of Law at MATS Law School, Raipur,
Chhattisgarh.
1
Central Board of Film Certification Home Page, http://www.cbfcindia.tn.nic.in/ (last visited Aug. 21, 2008).
expression, they have been so accepted through various court decisions. Films in India have been
censored on the grounds of obscenity, sex and violence; but this paper does not intend to venture
into those areas, rather it explores elsewhere where films have been banned or targeted in the
name of maintaining public order; respecting beliefs, sentiments and traditions; or for criticizing
the State on certain issues. The paper does not endeavor to go into the intricacies of the
problems; instead, it limits itself to testify the legality of censorship in the light of the freedom of
speech and expression. In this pursuit, it presents some controversies of the recent times,
highlights certain judgments and relevant legal provisions. Although the paper concludes such
censorship as illegal and arbitrary, it also attempts to find a way out for ensuring better
protection of free speech as far as motion pictures in India are concerned.
II. LEGACY OF THE ‘BAN’ STORY
In 2008, Maharashtra Navnirman Sena (MNS, Maharashtra Reconstruction Army), spearheaded

by Raj Thackeray, unleashed unprecedented violence to push back the poor North Indian
economic migrants (largely from the States of Uttar Pradesh and Bihar) from Maharashtra,
especially from Mumbai, reasoning that they have seized the employment opportunities of the
Marathis (residents of Maharashtra) and have caused unemployment problem. Hence, they
should be repatriated to their home States, if necessary, by force. The State Government of
Maharashtra had been almost a mute spectator to this regionalism until it spilled over and invited
strong notice from the Central Home Ministry. Finally, the State Home Department registered 54
criminal cases against Thackeray for rioting, assault, damage to properties, provoking hatred
among different communities, etc. Even so, Thackeray managed to get bail in all the cases.2
When Kamal Khan tried to capture the plight of those migrants in his film ‘Deshdrohi’,
otherwise callous State Government immediately banned the movie for two months acting on the
report of the police that if the film is released in the same format it may lead to ‘law and order’
problem in the State.3
The Bombay High Court had cleared the screening of the film on the ground that the State’s ban
on its release was based on ‘extraneous grounds’. Yet the film was not released in the State.
Finally, after the matter reached the Supreme Court. The apex court also cleared the movie for
screening in the State. The court refused to agree with the contention of the Maharashtra
Government, that if the film was screened it would lead to a law and order problem.4
Nonetheless, the most unfortunate part is that the fight of the producer is far from over. The film,
scheduled to be screened in nearly 70 theatres across the State, could not be released as police
2
See Lyla Bavadam, Hate campaign, FRONTLINE, Nov. 21, 2008, at 24, 24-26.
3
Fears of MNS backlash prompted ‘Deshdrohi’ ban, EXPRESSINDIA.COM, Nov. 13, 2008,
http://www.expressindia.com/latest-news/Fears-of-MNS-backlash-prompted-Deshdrohi-ban/385263/.
4
SC rejects Maharashtra plea, clears Deshdrohi, THE INDIAN EXPRESS, Jan. 24, 2009, available at
http://www.indianexpress.com/news/sc-rejects-maharashtra-plea-clears-deshdrohi/414640/.
63
refused to provide protection to theatre owners who have been allegedly receiving threats from
MNS.5 The state of affairs continues till date.
Based on a true story and made in the backdrop of 2002 Gujarat pogrom,6 ‘Parzania’ revolves
around a Parsi family, with parents and two kids, in Ahmedabad in Gujarat. The family is caught
in the midst of the religious madness, and suffers. While the girl, Shernaz manages to flee; the
boy, Parzan is nowhere to be found. The family waits for Parzan. The film ends with a
photograph of Azhar, a real boy still missing since the Gujarat riots, in the hope that the film may
help his parents, the director Rahul Dholakia’s friends, to get some news of him. In 2007, at the
53rd National Film Awards,7 Dholakia was named as the Best Director for this film. Icing on the
cake was Sarika to be adjudged the best actress in recognition of her performance in the same
film.8 The film with such a strong message should be screened as widely as possible.
Unfortunately, that’s not the scenario in India. In fact, Dholakia had strong apprehension on the
uncertainty in clearing off the film by the Board. He made the film in English and not in any
Indian language so that he could at least get the film released abroad.9 His fears were justified
when the Censor Board took a long time for clearance. Problems did not desert him even with
Censor Board’s certificate. After a positive nod from the Censor Board, Bajrang Dal (Army of
Hanuman)10 with the tacit support of the ruling Bharatiya Janata Party (BJP, Indian People’s
Party)11 Government in the State of Gujarat slapped a political ban on the movie in Gujarat – the
place where the film matters the most. Fearing Bajrang Dal’s threat, the multiplex owners were
unwilling to release the movie on the scheduled date in Gujarat. Of course, they cited that it was
‘commercially nonviable’. The Government pleaded ignorance about the reasons for the film not
being released and washed off their hands.12 Such censorship resembles Paul O’Higgins’
5
Despite SC nod, ‘Deshdrohi’ fails to hit Maha theatres, THE FINANCIAL EXPRESS, Jan. 23, 2009, available at
http://www.financialexpress.com/news/despite-sc-nod-deshdrohi-fails-to-hit-maha-theatres/414435/.
6
On February 27, 2002, 59 Hindus were charred to death when the Sabarmati Express train at Godhra (Gujarat) was
set on fire. In reaction to that incident, what followed in Gujarat was unprecedented in the communal history of the
country since the Partition in 1947. Some 2500 Muslims were murdered; hundreds of women raped and thousands
were rendered homeless. See generally Dionne Bunsha, Five years after Godhra and the pogrom, THE HINDU, Feb.
28, 2007, available at http://www.hindu.com/2007/02/28/stories/2007022802811000.htm.
7
This is conferred every year by the Directorate of Film Festival of the Government of India.
8
53rd National Film Awards announced, THE TIMES OF INDIA, Aug. 7, 2007, available at
http://timesofindia.indiatimes.com/India/53rd_National_Film_Awards_announced/articleshow/2263261.cms.
9
Parzania director: 2006’s National award winner?, REDIFF.COM, Aug. 30, 2006,
http://ia.rediff.com/movies/2006/aug/30rahul.htm (interview with Rahul Dholakia).
10
It is perceived as a radical Hindutava force.
11
This was the key political party in the National Democratic Alliance (NDA) coalition Government, which was in
power at the Centre for a full term during 1999 – 2004 under the Prime Ministership of Atal Behari Vajpayee before
the present United Progressive Alliance led by Congress party. See generally Bharatiya Janata Party,
WIKIPEDIA.ORG, http://en.wikipedia.org/wiki/Bharatiya_Janata_Party (last visited Mar. 2, 2008).
12
Tanvir A Siddiqui, Bad business, say theatres, no Parzania in Gujarat today, THE INDIAN EXPRESS, Jan. 26, 2007,
available at http://www.indianexpress.com/story/21792.html.
64
‘subterranean censorship’, where an individual or institution uses power set aside for another
purpose to impose censorship without direct government involvement.13
It is not long back, when in 2006, incidents of vociferous protests of many Christian
communities against screening of ‘The Da Vinci Code’ dominated the press and media for quite
some time. The storyline of the film invited ire of various religious, political and radical groups
who viewed it as ‘blasphemous’ and ‘offensive’.14 The Hollywood creation, based on the
bestselling 2003 novel by author Dan Brown was gradually banned by seven State
Governments15 in their respective territories after being cleared by the Censor Board. The reason
cited by almost all the Governments was that the movie might hurt the ‘religious sentiments’ of
the people of the minority community; hence, disturb the ‘peace and tranquility in the State’.16
When this was the scenario in India, curiously, apart from few hiccups and protests, the movie
was released with a bang in most of the Christian countries in the West on May 18, 2006.17 In
spite of the fact that the novel is on sale (both genuine and pirated copies) in India since its
publication, there was a huge outcry in many States of India by the Christian organizations to
ban the film from screening in India for the perceived anti-Christian message. Following special
screenings for various Catholic leaders and the Information and Broadcasting Minister, Priya
13
DARREN J. O’BYRNE, HUMAN RIGHTS – AN INTRODUCTION 107 (Pearson Education Limited 2003).
14
Da Vinci film protests stepped up, BBC NEWS, May 16, 2006,
http://news.bbc.co.uk/1/hi/entertainment/4987116.stm.
15
The seven states are: Goa, Kerala, Meghalaya, Nagaland, Tamil Nadu, Andhra Pradesh and Punjab.
16
E.g., the State Government of Andhra Pradesh by the impugned order [G.O.Rt.No.1012, Home (General. A)
Department, dated 01.06.2006] in purported exercise of the powers conferred under Section.8 of Andhra Pradesh
Cinemas Regulation Act, 1955, No. 4 of 1955, suspended the exhibition of ‘The Da Vinci Code’ in English, Telugu
and other languages in the entire State, with effect from the publication of the notification. The reasons recorded for
the above decision as set out in the impugned notification are:
Government have received representations from various Minority Organizations, in

general and Christian organizations, in particular, requesting the Government to impose ban on
exhibition of the movie ‘The Da Vinci Code’ to be released in the State of Andhra Pradesh on 2nd
June, 2006. The ban should be from 2nd June 2006 onwards. They contended that the screening of
the movie will not only offend religious sentiments but lead to demonstrations, disturb peace and
tranquility in the State. The reports from the Government agencies indicate that some Christian
groups may take recourse to agitational activities if the film is released and that untoward
incidents may take place.
Government after taking into consideration of the reports, complaints from Minority
Community, particularly Christian Community regarding ‘The Da Vinci Code’ have come into
conclusion that exhibition of the film ‘The Da Vinci Code’ is likely to cause breach of peace and
hurt religious sentiments of Muslim and Christian Community, which may lead to demonstrations,
disturb peace and tranquility in the State.
17
See Punjab ban for Da Vinci Code film, BBC NEWS, May 25, 2006,
http://news.bbc.co.uk/1/hi/world/south_asia/5017498.stm.
65
Ranjan Dasmunshi, the Censor Board finally gave the film an ‘A’ certification and cleared it. But
the Board forced the distributor, Sony Pictures to insert a 15-second legal disclaimer card18 both
at the beginning and at the end stating that the movie was purely a tale of fiction.19
In some places the Muslims also joined hands in the protests. The storyline was alleged to be to
hurt the ‘religious sentiments’ of the Muslims as well!20 Meanwhile, two Public Interest
Litigations were filed before the Supreme Court of India seeking for a complete ban not only on
the movie but on the novel as well. Fortunately, the Court rejected the petitions.21 Afterwards
other High Courts also quashed the ban in the respective States.22
Exercising right to free speech, otherwise, by film personalities may impact their films. Massive
controversy stirred up following Aamir Khan’s comments in support of the displaced people in
Gujarat due to the Sardar Sarovar dam Project.23 Immediately, the BJP Yuva Morcha (Youth
Wing) orchestrated a ban on his film, ‘Rang De Basanti’ (Paint it Saffron) in the State.
Nevertheless, it already ran into troubled waters because the story featured corrupt politicians
involved in deals to buy low quality fighter planes which resulted in frequent crashes. The film
was only cleared after a positive nod from the Defence Minister, Pranab Mukherjee and the three
chiefs of the defence forces after viewing the film on the invitation from the Board.24
The same political party also called for a ban on Aamir Khan’s next film ‘Fanaa’ (Annihilation),
in Gujarat, before its release. Noted Bollywood25 filmmaker, Mahesh Bhatt filed a petition before
the Supreme Court seeking for direction to the Government of Gujarat to take appropriate steps
for peaceful screening of the film in the State.26 As a matter of fact, Khan did not say anything
about the dam. He only reiterated what the Supreme Court rulings have stated time and again.
18
The card reads: “The characters and incidents portrayed and the names herein are fictitious, and any similarity to
the name, character or history of any person is entirely coincidental and unintentional.”
19
Monica Chadha, Indian censors win Da Vinci fight, BBC N EWS, May 24, 2006,
20
See Muslims join Da Vinci criticism, BBC NEWS, May 16, 2006,
21
See India court blocks Da Vinci ban, BBC NEWS, June 13, 2006,
http://news.bbc.co.uk/2/hi/entertainment/5074578.stm.
22
See infra part IV, sec. B.
23
The Sardar Sarovar Project built across the river Narmada in Gujarat is undisputedly the most controversial dam
project in the country. Narmada Bachao Andolan (NBA) (Save Narmada Movement) led by Medha Patkar is a non
governmental organization involved with the issue for more than two decades from now. Aamir Khan, shared the
common objective with NBA and wanted those displaced by the Narmada dam to be rehabilitated. This stirred a
massive political debate. Consequently, the films of Aamir Khan were targeted. See generally Dionne Bunsha,
Heights of intolerance, FRONTLINE, June 16, 2006, at 108.
24
Ruchi Gupta, Rang De Basanti comes out all clear from Super censors, YAHOO! INDIA N EWS, Jan. 27, 2006,
http://in.news.yahoo.com/060111/139/61yjl.html.
25
A metaphor used for the Bombay (now Mumbai) film world.
26
See Fanna in Gujarat cinemas: Bhatt seeks SC direction, INTERNATIONAL REPORTER, June 1, 2006,
http://www.internationalreporter.com/news/read.php?id=1567.
66
Unfortunately, the Supreme Court dismissed Bhatt’s petition but added that the Gujarat
Government was duty bound to provide security for the hall owners if they sought police
protection. Finally, it was released in only one theatre in Jamnagar in Gujarat.27
‘Water’, a 2005 movie by Deepa Mehta which is set in 1938 examines the plight of
impoverished widows at a temple in Varanasi, ran into controversy with the Hindu
fundamentalists. Mehta originally intended to direct ‘Water’ in February, 2000 but before
filming had begun, some 2,000 protesters spearheaded by a coalition of Hindu extremists aligned
with the BJP (then ruling party at the Centre) destroyed the main film set and even gave death
threats to Mehta.28 Eventually the film was shot secretly with a different cast in Sri Lanka, under
the title ‘River Moon’ in 2003. The film was premiered at the 2005 Toronto International Film
Festival and earned wide international recognition, but unfortunately was put on hold in India.
Finally, it was released in India on March 9, 2007 – seven long years after the project actually
started.29
Mehta’s other films also attracted hostility from Hindu fundamentalists who have always
objected to her topics. ‘Fire’ (1996) and ‘1947: Earth’ (1998) – the two other films in the trilogy
with ‘Water’, also brought her into conflict with these forces. The former deals with a lesbian
relationship between two married women, the latter was set in Lahore in the time period directly
before and during the partition of India in 1947, depicting how once unified group of friends of
mixed religion becomes divided and tragedy ensues. The extreme right-wing party, Shiv Sena
(Army of Lord Shiva) organized demonstrations, forcing the closure of several Bombay and New
Delhi cinemas where ‘Fire’ was shown. Members of the organization vandalized several movie
halls. The film had to be withdrawn from cinemas, pending another censorship review, but later
re-released uncut.30 The fundamentalists also denounced ‘Earth’ and demanded the government
to ban the film.31
The Gujarat violence energized the film fraternity in India to come up with a number of movies.
In the three years following the incident, more than 22 short films and documentaries projecting
27
M.G. Srinath, ‘Fanaa’ a Hit Movie Despite Protests, WORLDPRESS.ORG, June 13, 2006,
http://www.worldpress.org/Asia/2380.cfm.
28
Jasmine Yuen-Carrucan, The Politics of Deepa Mehta’s Water, BRIGHT LIGHTS FILM J..,
http://www.brightlightsfilm.com/28/water.html.
29
Water (2005 film), Wikipedia.org, available at http://en.wikipedia.org/wiki/Water_(2005_film) (last visited Feb.
27, 2008). See generally Hindu widow film enrages fundamentalists, N.Y. TIMES, May 3, 2006, available at
http://www.nytimes.com/2006/05/03/world/asia/03iht-
web.0503india.html?scp=5&sq=water%20film%20india&st=cse
30
See generally Richard Phillips, One of this century’s human tragedies, as witnessed by a child, WORLD SOCIALIST
WEB SITE, Jul. 21, 1999, http://www.wsws.org/articles/1999/jul1999/sff6-j21.shtml (Film review of ‘1947: Earth’).
31
See generally Deepa Mehta speaks out against Hindu extremist campaign to stop her film, WORLD SOCIALIST
WEB SITE, Feb. 15, 2000, http://www.wsws.org/articles/2000/feb2000/meht-f15.shtml (An interview of Mehta by
Richard Phillips).
67
the communal riots were produced.32 Not surprisingly, many of them ran into conflict with the
Censor Board because of the controversial subject matter. One such film was Rakesh Sharma’s
‘Final Solution’, a study of the politics of hate. In spite of international accolades, the film was
banned in India by the Censor Board for several months stating that “State security is
jeopardized and public order is endangered if this film is shown”. 33 The ban was finally lifted in
October, 2004 after a sustained campaign.34
On the same context, Faaiz Anwar’s film ‘Chand Bujh Gaya’ (The Moon Has Been Eclipsed)
depicted a love story of a young couple -a Hindu boy and a Muslim girl - whose lives are torn
apart in the riots. The Censor Board refused to certify the film because it is full of gory visuals of
violence and that certain characters have definite resemblance to real life personalities and it was
still a live issue by then, thus inciting communal violence. Later the Bombay High Court
quashed the order of the Board. Consequently, it was released in 2005 after waging a 3 year long
war.35 The court also rescued another documentary film ‘Aakrosh’ (Cry of Anguish) (2003)
which brought out the agony and anguish of victims of communal riots.36
In 2002, the film ‘War and Peace’, created by Anand Patwardhan, focusing on the dangers of
nuclear war in the Indian sub-continent, was asked by the Board to make 21 cuts before it was
allowed to have the certificate for release.37 The debate finally reached the court and the Mumbai
High Court ordered the Censor Board to issue a ‘U’ certificate without imposing cuts or making
additions to the footage.38
In 1999, orchestrated by Tamil Nadu’s Dravida Munetra Kazhagam (DMK, Dravidian Progress
Federation) Government, a coalition partner in then BJP-led NDA government, the police
arrested two men for holding a preview of the documentary, ‘Death of a River’ to writers,
journalists and intellectuals. The film dealt with the police massacre of striking Manjolai tea
estate workers at the Thamiraparani River which resulted in killing of 17 people.39
‘Black Friday’ (2004), directed by Anurag Kashyap, encountered a peculiar situation and that too
after being cleared from all hurdles. The film tries to recreate the events and the intense feelings
32
Rupam Jain Nair, Film-makers hit rewind button, cut to Godhra, EXPRESSINDIA.COM, Feb. 28, 2005,
http://cities.expressindia.com/fullstory.php?newsid=119337.
33
See India bans religious riot movie, BBC N EWS, Aug. 6, 2004,
http://news.bbc.co.uk/1/hi/entertainment/film/3542340.stm.
34
Final Solution, http://www.rakeshfilm.com/finalsolution.htm.
35
See infra part IV, sec. B for the Court’s judgment.
36
See infra note 109 and accompanying text for the Court’s judgment.
37
Press Release, Icarus Films, See 21 cuts demanded by Censor Board on “War and Peace” (Aug. 24, 2002),
http://www.icarusfilms.com/new2002/wandp3.html.
38
See infra note 108 and accompanying text for the Court’s judgment.
39
Ram Kumar, Arrests made in India over screening of film on the Manjolai massacre, WORLD SOCIALIST WEB
SITE, Dec. 30, 1999, http://www.wsws.org/articles/1999/dec1999/tami-d30.shtml.
68
that followed the infamous 1993 Bombay blasts.40 It was granted censorship certificate on the
condition that the makers would insert a disclaimer right at the beginning of the screening of the
movie that it was based on a book and did not impute any innocence or guilt on any of the
personalities depicted in the film.41 When it was due to be released in December 2004, one of the
accused in the bomb blasts case, Mushtaq Moosa Tarani, tried by the designated court under the
Terrorists and Disruptive Activities (Prevention) Act (TADA), 1987, No. 28 of 1987, filed a
petition before the Bombay High Court challenging the release of the film. He contended that the
film, based on a book by journalist S. Hussein Zaidi,42 gave the perception that it was the
authentic version of the events and this could bias the public opinion. The argument was upheld
by the High Court and later on by the Supreme Court. Hence the release of the film was stalled.
Finally, after the TADA court delivered its judgment in December 2006 and found the petitioner
guilty, the film was released in India on February 9, 2007.43 In the meantime, it had already
received a lot of critical acclaim at film festivals abroad. The irony is that the book on which the
film was based was in open market since its publication in 2002.44
The list of the films is not exhaustive but only a tip of the iceberg. There are numerous such
instances where films got into trouble dealing with themes which are thought-provoking.
However, the phenomenon is not new altogether. Only few recent films have been cited above to
show the present nature and extent of the problem. Past films have also been targets of
community and government ire. Many years back in the 1970s, two films – ‘Aandhi’ (The
Storm) and ‘Kissa Kursi Kaa’ (A Tale of Throne) were perceived to have depicted the life story
of the then-Prime Minister Indira Gandhi, for which they suffered similar fate. The latter was
denied a censor certificate and the former was withdrawn from the cinema halls. ‘Aandhi’ was
re-released a few weeks later when Gandhi herself cleared it after consulting some critics.45 In
contrast, ‘Kissa Kursi Kaa’ turned out to be the most controversial film ever made in the history
of Indian cinema. The film was accused of scathing criticism of the functioning of the Central
Government under Gandhi. The film reel was burnt by the then ruling party minister and the
film had to be re-shot.46 In fact, national film industry had a torrid time during Emergency47 in
40
It is widely believed that in retaliation of the destruction of the historic Babri Mosque in 1992, there was a series
of 13 bomb explosions that took place in Bombay on March 12, 1993. The coordinated attacks were the most
destructive bomb explosions in Indian history leaving 257 civilian fatalities and 713 injuries officially. See generally
1993 Bombay bombings, Wikipedia.org, http://en.wikipedia.org/wiki/1993_Mumbai_bombings (last visited Jul. 20,
2008); 1993: Bombay hit by devastating bombs, BBC NEWS,
http://news.bbc.co.uk/onthisday/hi/dates/stories/march/12/newsid_4272000/4272943.stm (last visited Jan. 4, 2010).
41
See Rakesh Bhatnagar, SC to consider lifting ban on Black Friday, THE TIMES OF INDIA, Jan. 28, 2005, available
at http://timesofindia.indiatimes.com/articleshow/1003972.cms.
42
The original name was same as the book: ‘Black Friday – The True Story of the Bombay blasts’.
43
See Feb release for Black Friday, THE TELEGRAPH, Jan. 12, 2007, available at
http://www.telegraphindia.com/1070112/asp/nation/story_7251115.asp.
44
Id.
45
Srinath, supra note 27.
46
A case was registered and the Sessions Court, Delhi found the accused guilty. However, the Supreme Court
overruled the decision. See generally V.C. Shukla v. State (Delhi Administration), A.I.R. 1980 S.C. 1382.
69
1970s invoked by Gandhi’s Congress Government. The industry was put under intense pressure
to aid the Government’s propaganda campaigns. Film makers and artists who refused to co-
operate were blacklisted, and films were denied exhibition certificates by the Censor Board.48
Although Emergency days are long over, the film fraternity in India is yet to breathe easy. In
1994, the Government of India was in the process of formulating new guidelines for the film
producers seeking not only to eliminate vulgarity and violence in films but also denigration of
ministers and public officers. Fortunately, it got nowhere. But it has not stemmed such efforts.
Recently, the Mumbai unit of the Bahujan Samaj Party (BSP)49 has sent a note to the Indian
Motion Picture Producers’ Association and the Indian Film Directors’ Association asking them
to get in touch with the party for permission before they make any film on either the BSP
founder, Kanshi Ram or the Uttar Pradesh Chief Minister, Mayawati. If such a claim is made and
no permission in fact is accorded, opposition would be justified.50
All those incidents reflect the despotic and arbitrary nature of the authorities, various groups or
political parties and their die-hard efforts to curb the freedom of speech and expression through
films which fell out of their taste. The filmmakers, to exercise one of the most coveted right, had
to depend either upon the whims and fancies of those elements or to fight prolonged legal battles
with great deal of uncertainty.
III. HISTORICAL DEVELOPMENT OF FREE SPEECH
The right to free speech is one of the most celebrated as well as vigorously guarded civil liberties
from any sort of governmental intrusion. The voyage to safeguard free speech did not have an
abrupt beginning with the Constitution of India. In the era of India’s struggle for independence
from the British rule, right to free speech was given enormous importance by the national
leadership. Rigorous campaigns were organized to ensure the freedom of press against several
repressive laws.51 Political trends and groups otherwise critical of each other and often at
opposite ends of political and ideological spectrum vigorously defended each others’ civil rights.
The Moderates defended the Extremist leader Bal Gangadhar Rao Tilak’s right to speak and
write what he liked. Further, the Karachi Convention of the Congress in 1931, passed a
resolution on Fundamental Rights which, inter alia, guaranteed right of free expression of
47
A proclamation of Emergency was issued under the provisions of the Constitution in December 1971, as a result
of Indo-Pakistan war on the ground of ‘external aggression’. While the 1971 proclamation was still effective,
another proclamation was issue on June 26, 1975 on the ground of ‘internal disturbance’ threatening the security of
the country. Both the proclamations were finally revoked in March 1977. See generally VENKAT IYER, STATES OF
EMERGENCY: THE INDIAN EXPERIENCE (Butterworths 2000).
48
MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW 46 (Eastern Book Company 2006).
49
The bastion of BSP is the State of Uttar Pradesh. It claims to represent ‘Bahujans’ or the oppressed classes.
50
A.G. Noorani, Films and Free Speech, 43(18) ECON. & POL. W EEKLY 11, 11 – 12, (2008).
51
See generally D IVAN, supra note 48, at 292-307.
70
opinion through speech and Press.52 Such an illustrious history ensured that freedom of
expression became a fundamental right in the Constitution.
To understand the scope of right to free speech as embodied in the Constitution, it is pertinent to
explore the debates that took place at the Constituent Assembly (hereinafter Assembly),53 which
was formed to draft the Constitution of India. To assist the Assembly, several sub-committees
were set up on different subjects, which were obliged to report to the Assembly. One such sub-
committee was Fundamental Rights Sub-Committee. There was little disagreement among the
members on principles, what disagreement there was centered primarily on the classic
predicament of the degree to which personal liberty should be infringed to secure governmental
stability and public peace, of how conditional the statement of a right should be.54 About the
need to circumscribe the basic freedoms of speech, assembly, association, etc., was no easy
agreement. The issue was always delicate and explosive question of freedom versus State
security and, to a lesser extent, of liberty versus license in individual freedom. The political
unrest, communal riots engulfed the new-born nation in such an unprecedented manner that it
paved the way for the introduction of limitation of rights and even their suspension in times of
Emergency when the security of the nation or part of it was threatened, in the draft document on
Fundamental Rights.55
As far as the Draft Constitution is concerned, Article 1356 was analogous to Article 1957 of the
present Constitution. Several members of the Assembly’s Drafting Committee vouched for more
authority in the hands of the legislature on the restriction of those freedoms while some other
professed a very liberal view calling for the deletion of all the restrictive clauses under Article
13(2) to (6). After grueling debate among the members, Article 13(2) as a restrictive clause on
free speech was finally passed (and adopted as Article 19(2) in the Constitution), which declared
that the freedom of speech and expression shall not affect “the operation of any existing law, in
so far as it relates to, or prevent the State from making any law on matters concerning libel,
slander, defamation, contempt of court, any matter offending decency and morality, or
undermines the security of or tends to overthrow, the State”.58 To comprehend the backdrop of
this clause, it is relevant to demonstrate some parts of the fascinating debate. Initially, one of the
grounds proposed under Article 13(2) was ‘sedition’ but it was not finally approved. Advocating
for the deletion of the same, K.M. Munshi, Member of the Drafting Committee, opined:
52
BIPAN CHANDRA ET AL., INDIA A FTER INDEPENDENCE: 1947 – 2000 22 (Penguin Books 2000) (1999).
53
It was convened on December 9, 1946.
54
See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 61-63 (Oxford University
Press 1999) (1966).
55
See id. at 69-71.
56
Article 13(1) embodied several freedoms regarding speech and expression, peaceful assembly, form associations,
move and reside in any part of the nation, etc.
57
See infra note 74.
58
7 CONSTITUTIONAL A SSEMBLY D EBATES (C.A.D.) at 786.
71
Our notorious Section 124A59 of Penal Code60 was sometimes construed so
widely that I remember in a case a criticism of a District Magistrate was urged to
be covered by Section 124A. But public opinion has changed considerably since
and now that we have a democratic Government, a line must be drawn between
criticism of Government which should be welcome and incitement which would
undermine the security or order on which civilized life is based, or which is
calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted.
As a matter of fact the essence of Democracy is criticism of Government. The
party system which necessarily involves an advocacy of replacement of one
Government by another is its only bulwark; the advocacy of different system of
government should be welcome because that gives vitality to a democracy.61
(Emphasis added)
Among the other members who vehemently opposed the adoption of the restrictive clauses was
Sardar Hukum Singh. He argued that freedoms enshrined in Article 13(1) gave protection to the
individual against coercive force of the State, if they stood by themselves. But the restrictions
appeared “to take away the very soul out of those protective clauses”.62 He argued that the rights
under Article 13(1) could not be alienated by individual, even voluntarily. He was disillusioned
by the fact that the freedoms had been made so precarious and entirely left at the mercy of the
legislature, which is “nothing beyond one political party” and hence, drew inferences from other
civilized countries in favour of greater scope of judicial review.63
Another member, Mahboob Ali Baig went ahead to compare the situation with the German
Constitution under Adolf Hitler, where Fundamental Rights were subjected to the provisions of
law made by the legislature. “This means the citizens could only enjoy those rights which the
legislature would give them, permit them from time to time. That cuts at the very root of
Fundamental Rights and the Fundamental Rights cease to be fundamental.”64
Finally, the proposed amendment to delete those restrictions failed to get consensus. Many
members were of the opinion that full freedom did not mean that it was unrestricted. So, freedom
of speech would not mean to speak out at one’s own will. “Freedom by its nature implies
59
INDIA PEN. CODE sec. 124A Sedition. —Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to
which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or
with fine.
60
INDIA PEN. CODE, 1860, No. 45 of 1860, is the principal criminal law in India till date.
61
7 C.A.D., at 731.
62
Id. at 732.
63
Id. at 732-33.
64
Id. at 728 (emphasis added).
72
limitations and restrictions.”65 The political unrest, communal riots in different parts of the
country also worked as a catalyst in the argument and paved the way not only for the
introduction of the limitation clauses during normal times but suspension of them altogether
during Emergency. However, in each of the Clauses (3) to (6) of Article 13, ‘restriction’ was
qualified by insertion of the word ‘reasonable’ preceding it. Thus, liberty had scored a triumph
over bureaucracy’s desire for maximum security. The Constitution placed a major restriction on
the scope of legislative competence which has led the judiciary to review the reasonableness of
the restrictions imposed on the rights. Thus the Indian judges acquired the same power in relation
to those freedoms which the American judges generally enjoy under the ‘due process of law’
clause.66 Surprisingly, for reasons unexplained, similar insertion was not carried out in relation to
Article 13(2). Hence, the scope of judicial review remained limited in case of freedom of speech
and expression compared to its counterparts. This was remedied a year later when the First
Amendment67 to the Constitution was passed in June, 1951 and given retrospective effect after
much deliberation and debate in the Parliament. This amendment along with the Sixteenth
Amendment68 in 1963 modified the grounds of the original Article 19(2) to bring it to the present
shape and form.69
Unfortunately, the liberal line of the thought professed by some of the members was not only
defeated in the Assembly, after more than five decades, the National Commission to Review the
Working of the Constitution (NCRWC)70 failed to show any such innovation. The NCRWC
recommended to include “the freedom of press and other media, the freedom to hold opinions
and to seek, receive and impart information and ideas” under Article 19(1)(a);71 it also proposed
to amend Article 19(2) by inserting further restriction on the ground of “preventing disclosure of
information received in confidence except when required in public interest”.72
IV. LEGAL POSITION OF CENSORSHIP IN INDIA
A. Statutory law
Unlike the First Amendment to the US Constitution, which unequivocally declares: “Congress
shall make no law . . . abridging the freedom of speech, or of the press”;73 constitutional
65
Id. at 767-68 (Opinion of Algu Rai Shastri).
66
See generally A USTIN, supra note 54, at 71-74.
67
Constitution (First Amendment) Act, 1951.
68
Constitution (Sixteenth Amendment) Act, 1963.
69
See GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 40-
53 (Oxford University Press 1999).
70
It was constituted during the regime of the NDA Government under the chairmanship of Justice M.N.
Venkatachaliah, former Chief Justice of India.
71
This provision guarantees the citizens of India freedom of speech and expression.
72
1 REPORT OF NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION 60-61 (2002).
73
U.S. CONST. amend. I.
73
guarantee of free speech in India is somewhat restricted. Article 19(1)(a) of the Constitution of
India promises right to free speech and expression to all the citizens.74 However, ‘reasonable
restriction’ can be imposed on the enjoyment of this freedom by the State under clause 2 of
Article 19 on certain grounds, i.e., the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offense. Additionally, freedoms
under Article 19 of the Constitution can be suspended during the Emergency by virtue of Article
359.75 The Constitution does not specifically speak about any medium of communication. The
jurisprudence that has developed through case laws in this respect has encompassed the press,
motion pictures, advertisements etc. within its fold. So far censorship of films in India is
concerned, the power of legislation is vested with the Parliament under Entry 6076 of the Union
List (or List I)77 of the Schedule VII of the Constitution. The States are also empowered to make
laws on cinemas under Entry 3378 of the Sate List (or List II)79 but subject to the provision of the
central legislation. The prime legislation in this respect is the Cinematograph Act, 1952, No. 37
of 1952, (hereinafter 1952 Act) and the Cinematograph (Certification) Rules, 1983, Gen. S.R.
381(E) (hereinafter Rules).
The 1952 Act was enacted to provide for the certification of cinematograph films for exhibition
and for regulating their exhibition. The brief scheme of the statute is as follows. It empowers the
Central Government to constitute a Censor Board consisting of members, numbering between 12
and 25, for the purpose of sanctioning films for public exhibition. After examination of a film,
the Board either sanctions the film for restricted or unrestricted public exhibition; or directs to
carry out necessary modifications; or refuse to sanction the film for public exhibition. Section 5-
B(1) provides the grounds for the restriction for public exhibition which is in consonance with
74
INDIA CONST. art. 19, cl. 1. Protection of certain rights regarding freedom of speech, etc. – All citizens shall have
the right – (a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
[(f) to acquire, hold and dispose property] [This has been deleted by the Constitution (Forty-Second Amendment)
Act, 1976. Though right to property ceased to be a fundamental right but remained as a constitutional right under
Art. 300A]
(g) to practise any profession, or to carry on any occupation, trade or business.
75
According to this provision, where a Proclamation of Emergency is in operation, the President may by order
suspend the right to move any court for the enforcement of the rights conferred by Article 19 (and certain other
fundamental rights) and all proceedings pending in any court for the enforcement of such rights shall remain
suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in
the order.
76
Sanctioning of cinematograph films for exhibition.
77
Consists of subject matters in which the Central Government is empowered to legislate.
78
Theatres and dramatic performances; cinemas subject to the provisions of entry 60 of List I.
79
Consists of subject matters in which the State Government is empowered to legislate.
74
Article 19(2) of the Constitution. Section 5-B(2) empowers the Central Government to devise
necessary guidelines in this regard.80 The party concerned is given an opportunity to represent
his views on the subject before the Board arrives at its decision on censorship. Earlier the appeals
from the orders of the Board were preferred before the Central Government. Subsequently, in
1974 by an amendment81 to the Act the appellate jurisdiction of the Central Government was
transferred to an independent Film Certification Appellate Tribunal (FCAT). Such tribunal is
competent to hear appeals from the Board.82 It shall consist of a Chairman and maximum of 4
other members. The Chairman shall be a retired or qualified to become a Judge of a High Court.
Other members, in the opinion of the Central Government, shall be qualified to judge the effect
of films on the public.83 However, the Cinematograph (Amendment) Act, 1981, No. 49 of 1981,
substantially amended the Act to diminish the powers of the FCAT.84 The Central Government is
now vested with revisional powers under Section 6(1), even of its own motion, to call for the
record of any proceeding before the Board or FCAT in relation to any film at any stage, except a
matter of appeal pending before the FCAT, to give necessary order and the Board must dispose it
off in conformity with such order. The second proviso to this section enabled the Government
not to disclose any fact in this respect which it considers to be against public interest. Penalties
are also prescribed for contravention of the requirements of the Act. Under Part III of the 1952
Act, which deals with licensing for exhibition, section 13 empowers the Central Government or
the Local Authority to suspend exhibition of a film in a Union Territory, as a whole or part of it,
or a district of a State, as the case may be, where it may likely to cause breach of peace. The
1952 Act also provides for the establishment of Advisory panels by the Central Government at
regional offices consisting of persons qualified to judge the effect of the films on the public.85
The Rules have been framed under Section 8 of the 1952 Act. The Rules deal with the procedural
details of Board, the Examining Committee, Revising Committee, the FCAT and related matters.
It may be stated in this regard that under Rule 11, it specifically imposes a duty on the Board to
assess public reactions to films. This may be done by holding symposia or seminars of film
critics, film writers, community leaders and persons associated with the film industry, and also
by undertaking local or national surveys to study the impact of films in the public mind.
B. Judicial Intervention
Over the years, the Supreme Court and the High Courts through various judgments have
contributed immensely in safeguarding the rights of the people of India. Right of free speech and
80
The guidelines were revised in the year 1991. See generally Central Board of Film Certification Guidelines,
http://www.cbfcindia.tn.nic.in/guidelinespage1.htm.
81
The Cinematograph (Amendment) Act, 1974, No. 27, Acts of Parliament, 1974.
82
1952 Act sec. 5-C.
83
1952 Act sec. 5-D.
84
See M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 428-29 (Wadhwa and Company 2007) (1971).
85
1952 Act sec. 5.
75
expression through motion pictures, is no exception. In this section, some of the important
judgments related to films and documentaries, including few telecasted as television serials, are
critically examined to assess the impact of the judiciary.
For the first time before the Supreme Court the constitutionality of censorship under the 1952
Act along with the Rules framed under it was challenged in the case of K.A. Abbas v. Union of
India.86 The Supreme Court upheld the constitutionality within the ambit of Article 19(2) of the
Constitution and added that films have to be treated separately from other forms of art and
expression because a motion picture is “able to stir up emotions more deeply than any other
product of art”.87 At the same time it cautioned that it should be “in the interests of society”. 88 “If
the regulations venture into something which goes beyond this legitimate opening to restrictions,
they can be questioned on the ground that a legitimate power is being abused.”89
Probably, the most important case regarding the problem dealt herein is the case of S.
Rangarajan v. P. Jagjivan Ram.90 In the instant case, the decision of the Madras High Court
which revoked the ‘U-Certificate’ issued to a Tamil film called ‘Ore Oru Gramathile’ (In One
Village), was challenged through an appeal before the Supreme Court. In the meantime, the film
had already won National Award. The film criticized the reservation policy in jobs as such policy
is based on caste and was unfair to the Brahmins91. It was argued through the film that economic
backwardness and not the caste should be the criterion. The High Court had held that the reaction
to the film in Tamil Nadu is bound to be volatile considering the fact that a large number of
people in Tamil Nadu have suffered for centuries. Certain remarks were also made against Dr.
B.R. Ambedkar92 and several Tamil personalities. The Supreme Court overruled the High Court
decision and upheld the freedom of speech and expression. It stated:93
The democracy is a Government by the people via open discussion. The

democratic form of government itself demands its citizens an active and
intelligent participation in the affairs of the community. The public discussion
with people participation is a basic feature and a rational process of democracy
which distinguishes it from all other forms of government. The democracy can
neither work nor prosper unless people go out to share their views. The truth is
that public discussion on issues relating to administration has positive value.
86
A.I.R. 1971 S.C. 481.
87
Id. at 489.
88
Id. at 495.
89
Id. (emphasis added).
90
(1989) 2 S.C.C. 574.
91
Caste wise they occupy the highest strata of the Indian society.
92
He is considered as the vanguard of Dalit (people belonging to the lowest strata of the society) against social
oppression.
93
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 S.C.C. 574, 592.
76
The Court went on to add:
Movie is the legitimate and the most important medium in which issues of general
concern can be treated. The producer may project his own message which the
others may not approve of it. But he has a right to ‘think out’ and put the counter
appeals to reason. It is a part of a democratic give-and-take to which no one could
complain. The State cannot prevent open discussion and open expression,
however, hateful to its policies.94
In doing so, the Court did acknowledge to have a compromise between the interest of freedom of
expression and social interests. Censorship is permitted only on the grounds envisaged under
Article 19(2) and the standard of judging a film to be applied by the Board or courts should be
that of “an ordinary man of common sense and prudence and not that of an out of the ordinary or
hypersensitive man”.95 It went on to observe that the anticipated danger should not be remote,
conjectural or far fetched but should have proximate and direct nexus with the expression and
equivalent of a “spark in a powder keg”.96 The Court criticized the State and emphasized that
freedom of expression cannot be suppressed on account of threat of demonstration and
processions or threats of violence. “It is the duty of the State to protect the freedom of expression
since it is a liberty guaranteed against the State. The State cannot plead its inability to handle
the hostile audience problem.”97
There is no separate censorship required for television serials or films as they are telecasted only
if they are certified by the Board. An incident came up concerning a television serial ‘Tamas’
(Darkness) which depicted the Hindu-Muslim and Sikh-Muslim tension before the partition of
India.98 Appeal was preferred before the Supreme Court against the judgment of Bombay High
Court (which allowed the screening of the serial) in Ramesh v. Union of India99 to restrain the
screening of the serial as it was violative of Section 5B of the 1952 Act. It was alleged by the
petitioner that the screening of the serial on Doordarshan (the State television network) would be
against public order and it was likely to incite the people to indulge in the commission of the
offences. The Supreme Court affirmed the High Court decision and dismissed the petition.
Commenting on the reaction of the average men, the Court held that the average person would
learn from the mistakes of the past and perhaps not commit those mistakes again. They
concurred with the High Court that “. . . [I]lliterates are not devoid of common sense . . . [and] . .
94
Id. at 593.
95
Id. at 586.
96
Id. at 595-96.
97
Id. at 598-99 (emphasis added).
98
It was based on a book written by Bhisham Sahni.
99
(1988) 1 S.C.C. 668.
77
. [a]wareness in proper light is a first step towards that realization”.100 Incidentally, the serial was
given ‘U’ certificate by the Board.
In Sree Raghavendra Films v. Government of Andhra Pradesh,101 the exhibition of the film
‘Bombay’ in its Telugu (the official language in the State of Andhra Pradesh) version was
suspended in exercise of the powers u/Sec.8(1) of the A.P. Cinemas Regulation Act,1955,102
despite being certified by the Censor Board for unrestricted exhibition. The suspension was
imposed citing the cause that it may hurt sentiments of certain communities. The Court
discovered that the authorities who passed the impugned order did not even watch the movie!
Hence, the Court quashed the order as being arbitrary and not based on proper material.
In another case, Doordarshan refused to telecast a documentary film on the Bhopal Gas Disaster
titled ‘Beyond Genocide’, in spite of the fact that the film won Golden Lotus award, being the
best non-feature film of 1987 and was granted ‘U’ certificate by the Censor Board. The matter
came before the Supreme Court in the case of Life Insurance Corporation of India v. Prof.
Manubhai D. Shah.103 The reasons cited by Doordarshan were inter alia, the political parties had
been raising various questions concerning the tragedy, and the claims for compensation by
victims were sub judice. Upholding the freedom of speech and rejecting the abovementioned
arguments, the Court held: “. . . Merely because it is critical of the State Government . . . is no
reason to deny selection and publication of the film. So also pendency of claims for
compensation does not render the topic sub-judice so as to shut out the entire film from the
community.”104 The Court made it clear that subject to Article 19(2), a citizen has a right to
publish, circulate and disseminate his views to mould public opinion on vital issues of national
importance. Hence, any attempt to thwart or deny the same would offend Art. 19(1)(a). Under
such circumstances, the “burden would, therefore, heavily lie on the authorities that seek to
impose them to show that the restrictions are reasonable and permissible in law”.105
Award winning documentary film, ‘In Memory of Friends’ by Anand Patwardhan about the
violence and terrorism in Punjab, though granted ‘U’ certificate by the Censor Board, was
rejected by Doordarshan reasoning that if such documentary is shown to people, it would create
communal hatred and may lead to further violence. The Bombay High Court quashed the order
emphasizing: “Everyone has a fundamental right to form his own opinion on any issue or general
concern. He can form and inform by any legitimate means.”106
100
Id. at 679.
101
1995 (2) A.L.D. 81.
102
Same provision was invoked to ban ‘The Da Vinci Code’ in the State of Andhra Pradesh.
103
A.I.R. 1993 S.C. 171.
104
Id. at 186-87.
105
Id. at 186.
106
Anand Patwardhan v. Union of India, A.I.R. 1997 Bom. 25, 32.
78
In case of ‘War and Peace’, Patwardhan appealed before the FCAT against the decision of the
Board.107 The FCAT viewed the film and directed issuance of ‘U’ Certificate, provided that
Patwardhan carried out two cuts and one addition as per its order. He challenged the order before
the Bombay High Court. In its conclusion, the High Court was very candid to hold that the cuts
recommended by FCAT were merely to harass the petitioner. Regarding addition, the Court
observed that it must be left to the discretion of the filmmaker.108
As already acquainted with the fact that many of the movies on Gujarat riots ran into controversy
with the Censor Board, they required the Court’s assistance to see the light of the day. Allowing
the film, ‘Aakrosh’, the Bombay High Court aptly reasoned that riots were a part of history by
then and hence:
. . . [W]hen the hour of conflict is over it may be necessary to understand and

analyze the reason for strife. We should not forget that the present state of things
is the consequence of the past; and it is natural to inquire as to the sources of the
good we enjoy or for the evils we suffer.109
In another case, while overruling the FCAT’s order to censor the movie, ‘Chand Bujh Gaya’, the
Bombay High Court in F.A. Picture International v. Central Board of Film Certification110
opined: “Censorship in a free society can be tolerated within the narrowest possible confines and
strictly within the limits which are contemplated in a constitutional order.”111 (Emphasis added)
It strongly criticized the role of the concerned authorities:
. . . The view of the censor does no credit to the maturity of a democratic society
by making an assumption that people would be led to disharmony by a free and
open display of a cinematographic theme. The certifying authority and the
Tribunal were palpably in error in rejecting the film on the ground that it had
characters which bear a resemblance to real life personalities. The constitutional
protection under Article 19(1)(a) that a film maker enjoys is not conditioned on
the premise that he must depict something which is not true to life. The choice is
entirely his.112
In Da Vinci controversy as well, the Supreme Court rejected the writ petition by the All India
Christians Welfare Association seeking a ban on the movie on the ground that it hurt the
107
Press Release, Icarus Films, supra note 37.
108
Anand Patwardhan v. Cent. Bd. of Film Certification, 2004 (1) MAH. L.J. 856.
109
Ramesh Pimple v. Cent. Bd. of Film Certification, 2004 (3) MAH L.J. 746, 750.
110
A.I.R. 2005 Bom. 145.
111
Id. at 148.
112
Id. at 150.
79
religious sentiments of Christians. The court found no point of objection when the Censor Board
and the Central Government has given a green signal. It also held that that no predominantly
Christian country had banned the film and there has been no definite reason forwarded by the
petitioners to ban the movie in India.113 In the States of Andhra Pradesh,114 Kerala115 and Tamil
Nadu,116 the respective High Courts quashed the bans imposed by the State Governments and
also imposed costs on the governments. Upholding the right to freedom of speech and
expression, the Courts found the act of Governments ‘irrational’ and ‘unconstitutional’. They
were of the opinion that the bans were imposed mechanically due to the veto of a few sections of
people who objected rather than arriving at a decision based on informed satisfaction.
In all those cases of Da Vinci, it was alleged that the film violated inter alia, Article 25 of the
Constitution with respect to the Christian community.117 Particularly in the case of Tamil Nadu,
the Madras High Court was of the opinion that for a harmonious interpretation of Articles 25 and
19, it is clear from a reading of those provisions that the rights under Article 25 are subject to the
other provisions of Part III; which means they are subject to Article 19(1). It was also not clear
before the court how the exhibition of the film will interfere with anyone’s freedom of
conscience or the right to profess, practise and propagate a particular religion. Moreover, the
Court expressed that under no circumstances ‘blasphemy’ is a ground under Article 19(2). The
reasoning makes greater sense when no empirical evidence across the world has also proved the
right to freedom of religion is better served, or protected with or through blasphemy laws.118
Another interesting aspect of this phenomenon is that irrespective of the effect of the movies,
there is often a call for a total ban without exploring any other possibilities. The Supreme Court
in State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat119 stated that a total prohibition under
Article 19(2) to (6) must also satisfy the test that a lesser alternative would be inadequate.
The aspect of right of the viewers with regard to freedom of information has not gone unnoticed
by the Courts. Freedom of information is, of course, inseparable from freedom of speech. If a
speaker cannot express a view, then hearer cannot receive information. In the case of Secretary,
113
Court rejects petitions seeking ban on film, THE HINDU, June 13, 2006, available at
http://www.hindu.com/2006/06/13/stories/2006061314410100.htm.
114
Lakshmi Genesh Films v. Gov’t of Andhra Pradesh, 2006 (4) A.L.D. 374.
115
Kerala HC declines to ban The Da Vinci Code, THE TIMES OF INDIA, May 25, 2006, available at
http://timesofindia.indiatimes.com/articleshow/1568062.cms.
116
Sony Pictures Releasing of India Ltd. v. State of Tamil Nadu, (2006) 3 M.L.J. 289.
117
INDIA CONST. art. 25. cl. 1. Freedom of conscience and free profession, practice and propagation of religion. –
Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise and propagate religion..
118
See Agnes Callamard, Freedom of speech and offence: why blasphemy laws are not the appropriate response, 18
EQUAL VOICES 7, 9-10 (2006), available at http://eumc.europa.eu/eumc/material/pub/ev/ev18/ev-18.pdf.
119
(2005) 8 S.C.C. 534.
80
Ministry of I & B v. Cricket Association of Bengal,120 it was held by the Supreme Court that
freedom of speech and expression includes “right to acquire information and to disseminate it to
public at large”. Hence, Article 19(1)(a) also includes the right of viewers. Further, in Indian
Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,121 it was held by the Supreme Court
that the people have a right to be informed of the developments that take place in a democratic
process.
Finally, it is important to note that in the case of Union of India v K.M. Shankarappa,122 the
Supreme Court disapproved of the Government retaining powers by enacting Section 6(1) of the
1952 Act and declared it ultra vires the Constitution. It held:
. . . The Government has chosen to establish a quasi-judicial body which has been
given the powers, inter alia, to decide the effect of the film on the public. Once a
quasi-judicial body like the Appellate Tribunal [FCAT], consisting of a retired
Judge of a High Court or a person qualified to be a Judge of a High Court and
other experts in the field, gives its decision that decision would be final and
binding so far as the executive and the Government is concerned. . . . The
executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of
law which is one of the basic structures of the Constitution. . . . The Executive
cannot sit in an appeal or review or revise a judicial order.123 (Emphasis added)
It emphasized that the only way to nullify the Court order would be through appropriate
legislation. Otherwise, “. . . the Government may apply to the Tribunal itself for a review, if
circumstances so warrant. But the Government would be bound by the ultimate decision of the
Tribunal.”124
On the apprehension of law and order problem, the Court reminded the Government about their
duty:
. . . In any democratic society there are bound to be divergent views. Merely

because a small section of the society has a different view from that as taken by
the Tribunal, and choose to express their views by unlawful means would be no
ground for the Executive to review or revise a decision of the Tribunal. In such a
case, the clear duty of the Government is to ensure that law and order is
120
(1995) 2 S.C.C. 161.
121
A.I.R. 1986 S.C. 515.
122
(2001) 1 S.C.C. 582.
123
Id. at 585.
124
Id.
81
maintained by taking appropriate actions against persons who choose to breach
the law.125
C. International Law and its Significance to India
Provision on freedom of speech and expression is also enshrined under Article 19 of the
Universal Declaration of Human Rights (UDHR)126 as well as the International Covenant of
Civil and Political Rights (ICCPR)127. Article 19(2) of the ICCPR states that such freedom is not
only limited to “impart information and ideas of all kinds”, but also freedom to “seek” and
“receive” them “regardless of frontiers” and in whatever medium, “either orally, in writing or in
print, in the form of art, or through any other media of his choice”. Often freedom of expression
is considered as a cornerstone right – one that enables other rights to be protected and
exercised.128 As in India, this right is not absolute in almost all the countries; States always
prohibit certain types of expressions. According to the General Comments on Article 19 by the
Human Rights Committee, so far as restrictions on free speech and expression are concerned,
they are required to conform to two conditions: they must be provided by law and necessary for
legitimate purposes. Such purposes include protection of the rights and reputations of others, the
protection of national security and public order and morals.129 When a State party imposes
certain restrictions on the exercise of freedom of expression, it may not put in jeopardy the right
itself. It is the interplay between the principle of freedom of expression and such limitations and
restrictions which determines the actual scope of the individual’s right.130. The only duty of the
States in the context of restricting freedom of expression is to prohibit by law “[a]ny advocacy of
national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence. . . ”.131 Thus, it can be concluded that a State should ensure to make all possible effort
to guarantee right to the freedom of speech and expression. It is applicable in case of motion
pictures as well and hence, if at all, censorship or restriction is imposed, it should meet the three-
part test set out in Article 19 of the ICCPR i.e. (a) it is provided by law; (b) it pursues a
legitimate aim; and (c) it is necessary in a democratic society.132
Incidentally, India is a party to the UDHR and has ratified the ICCPR. International treaties are
not self-executing in case of India. For the successful implementation of international laws in the
domestic legal system, they have to be transformed in to domestic law enacted by a legislative
125
Id. at 585-86.
126
G.A. Res. 217A, at 71, U.N. GAOR, 3rd Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).
127
G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. No. 16 at 52, U.N. Doc. A/6316, 999 U.N.T.S. 171 (Mar. 23,
1976).
128
See Callamard, supra note 118, at 7-8.
129
See ICCPR art. 19, para 3.
130
CCPR General Comment No. 10: Freedom of expression (Art. 19), 19th Sess., (June 29, 1983), available at
http://www.unhchr.ch/tbs/doc.nsf/0/2bb2f14bf558182ac12563ed0048df17?Opendocument.
131
ICCPR art. 20, para 2.
132
Callamard, supra note 118, at 11.
82
act of the Parliament.133 Nevertheless, the Supreme Court of India has made commendable
efforts in respecting the provisions of the international instruments. The Supreme Court in the
case of Vishaka v. State of Rajasthan134 observed that the applicability of the UDHR and
principles thereof may have to be read, if need be, into the domestic jurisprudence. The Court
also summed up the implications of international law through the following words:
Any International Convention not inconsistent with the fundamental rights

[enshrined in the Constitution of India] and in harmony with its spirit must be
read into these provisions to enlarge the meaning and content thereof, to promote
the object of the constitutional guarantee. This is implicit from Art.51(c)135 and
the enabling power of Parliament to enact laws for implementing the international
conventions and norms by virtue of Art.253 with Entry 14136 of the Union List in
the Seventh Schedule of the Constitution.137
Various provisions of the ICCPR have also been referred to in several judgments of the Supreme
Court. In fact, with respect to the international human rights law in Apparel Export Promotion v
A.K. Chopra,138 the Supreme Court clarified: “In cases involving violation of human rights, the
courts must remain forever alive to the international instruments and conventions and apply the
same to a given case where there is no inconsistency between the international norms and the
domestic law occupying the field.”139
The message of the international instruments, such as the UDHR and the ICCPR, which directs
all the State parties to take appropriate measures to prevent human right violations, is loud and
clear. Besides, the safeguards regarding the freedom of speech and expression, as visualized
under the international human rights law have a significant legal bearing on India’s commitment
towards the same.
133
INDIA CONST. art. 253. Legislation for giving effect to international agreements. – Notwithstanding anything in
the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.
134
A.I.R. 1997 S.C. 3011.
135
INDIA CONST. art. 51. Promotion of international peace and security.— The State shall endeavour to . . . (c) foster
respect for international law and treaty obligations in the dealings of organized peoples with one another . . ... This
is a provision under Part IV of the Constitution, which are the ‘Directive Principles of the State Policy’ and not
directly enforceable by the Courts unlike the ‘Fundamental Rights’ under Part III. However, they have been
considered to be fundamental in the governance of the country and complementary to the Fundamental Rights by
numerous judgments of the Supreme Court.
136
Entering into treaties and agreements and implementation of treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign countries.
137
Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011, 3014.
138
(1999) 1 S.C.C. 759.
139
Id. at 776.
83
V. FALLACY OF CENSORSHIP
The section on judicial pronouncements makes it crystal clear that as far as motion pictures are
concerned, the higher courts in India have zealously guarded the freedom of speech and
expression and have shown optimum judicial activism. They have refused to scrap any movie
without any compelling reason for restriction and which are not based on vague or unreasonable
apprehensions. Yet, this jurisprudence has at times traveled back and forth as it did in case of
‘Black Friday’. In case of ‘Fanna’, the Supreme Court actually diluted its own precedent
enunciated in the Rangarajan case where it obligated the State to take necessary preventive
measures pro-actively against any untoward incident that might take place with screening of any
such movies. Instead, this time it approached the matter from the opposite end, where the theatre
owners were asked to seek protection from the Government, only then the State has a duty to
oblige. Besides, it did not pull up the Gujarat Government for its failure to enforce the release of
the film by either providing adequate security or any assurance to do so. Similar incidents were
witnessed in case of other films, including ‘Chand Bujh Gaya’ where the Chief Minister of
Gujarat was alleged to have threatened the distributors and movie hall owners not to screen the
movie.140 In fact, being well aware of such failure or apathy of the State the theatre owners in
Gujarat did not venture out to screen ‘Parzania’.141 Recent non-release of ‘Deshdrohi’ in
Maharastra reasserts the existence of the typical trend.
In a democratic country everyone has a right to communicate his views on different affairs.
Millions of views are circulated throughout the nation every day by different means. Many of
them are not approved by majority of the Indians. But does that mean that those should be
scrapped? Or do the authors have to knock the doors of the courts on every occasion if their
opinions fail to satisfy a billion population? Movie is a legitimate and one of the most important
medium through which general problems can be addressed. Moreover, they are not openly
screened for everyone. It is available to only those people who are willing to buy tickets, go to
the theatres and watch them. Unwilling people can always choose to stay away from the movies.
The Sree Raghavendra Films case brings out the unfortunate truth as to how judgments on
restraining movies are passed on without any material basis in this country. It would be not
surprising if such is the order of the day instead being an exception. A film maker has a right to
disseminate his own views which the others may not approve of but that does not deter his right
to express himself and give shape through his creations. Neither all expressions of the opposing
view point nor the expressions which do not find the approval of those exercising power of the
State can be regarded as harmful to the State or public order.
One of the great defenders of free speech, Ronald Dworkin, has stated that there are three main
reasons why free expression matters. First, we cannot accept collective control of the culture, i.e.
140
See "Chand Bujh Gaya" fades out in India!, YAHOO! INDIA NEWS, Mar. 22, 2005,
http://in.news.yahoo.com/050310/139/2k3zf.html.
141
Siddiqui, supra note 12.
84
we must have the right to tell people what they do not want to hear. Second, there is an issue of
democratic transparency; where a free press has a duty and responsibility to hold government
and other powerful groups accountable. And last, there is democratic fairness; if we want people
to accept democratic procedures and laws that express the will of the majority, then everyone
must have not just a vote but a voice, however much we may dislike what they are saying.142
This argument of course puts the censoring of such films out of bounds. ‘Free debate’ and ‘open
discussion’ has been considered to be an integral part of a democracy in various cases.
Otherwise, democracy has no value and it is equivalent to a totalitarian regime. As noted British
columnist Polly Toynbee puts it that the best way to destroy an undesirable idea is not to brush it
under the carpet but to air it in public. The rationale consequence of providing a platform to such
a political voice is that the public will be able to ridicule it.143 Regrettably, it’s not the case in our
country. The aforementioned incidents categorically assert that to feel proud of being a part of
world’s largest democracy is a farce. This is the precise reason that films with a voice of dissent
have often been sidelined from the mainstream. Furthermore, such censorship is absolutely
arbitrary and illegal with respect to the international human rights law as well. India has actually
disregarded its pledges taken before the international community by showing laissez-faire
attitude towards the implementation of the international human rights obligations in general and
Article 19 of the ICCPR in specific.
Whenever a movie falls out of the taste of the certain people exercising power, they have
orchestrated to ban the movie arbitrarily in the name of ‘public interest’. Time and again, similar
protests have been raised to restrain the exercise of the freedom. In fact, the viewers are
deprived of watching a movie simply because it does not suit a group of persons with whom they
have no link. On the contrary, they are deprived of freedom of information. In spite of the fact
that the Supreme Court taking note of this aspect, every time the viewers suffer. A practical
instance may help to understand the implication clearer as to whose interests is the protesters
advocating for. ‘The Da Vinci Code’ was banned in 7 States – the result was over 200 million
Indians in those States were deprived from viewing the movie. The total Christian population in
the country is 2.3%, whereas the States that banned the movie has varied percentage of Christian
residents. Kerala, which holds the largest number of Christians, the book had already been
translated in Malayalam (the official language of the State) and widely circulated.144 If this has
been the case, then whose ‘religious sentiments’ and ‘emotions’ are involved? Only because of
protests by few organizations, the State Governments scrapped the movie taking into
consideration neither of a vast majority of the people in the States nor people of the minority
community which is projected to be against the screening of the movie. And if the justification
142
See Ursula Owen, A free society needs free speech, 18 EQUAL VOICES 17, 18 (2006), available at
http://eumc.europa.eu/eumc/material/pub/ev/ev18/ev-18.pdf.
143
O’BYRNE, supra note 13, at 126.
144
The source of population data is obtained from the official website on Census of India website,
http://www.censusindia.gov.in/.
85
forwarded by the State Governments censoring the movie is put forward by other States, the
movie can be banned in the whole country, in spite of Censor Board’s positive nod.
The regulation intended under Article 19(2) of the Constitution is to be so exercised so as to

serve the larger public good; but unfortunately in practice, it has been manipulated on many
occasions to strangulate the freedom of speech and expression. The grounds mentioned therein
have often been interpreted very widely to clamp down on movies at the slightest opportunity.
Under such circumstances, the question arises – do we really need such restriction? After
witnessing all those arbitrary attacks on the freedom of speech, it appears that ‘reasonable’
restriction really needs consideration to match up with the so-called globalized and liberal world.
The above discussion makes it obvious that censorship on the motion pictures under different
circumstances have not been imposed on valid constitutional or legal grounds but to serve the
interests of different powerful groups whether social, religious or political. Under no
circumstances, the censorship of aforementioned nature can be justified. Often the excuse of
India being a diverse country with unique set of problems has been put forward and the need of
restrictions has been over emphasized. But in reality the restrictions have served more in the
negative sense than for positive development. The logic of public interest or public good which
has been consistently used as a shield by the State while censoring films, is in several instances
somewhat bizarre. Whether ‘Deshdrohi’ or the Gujarat riot films or otherwise, the State squarely
failed to provide a solution to the real problem but whenever any film tried to focus the issue, it
was instantaneously banned. If the State does not provide the healing touch to the victims, then at
least, the State is not safeguarding anybody’s interest by censoring films.
Often the States have advanced the maintenance of ‘law and order’ as a justification for
censorship. It is completely untenable. If at all, a film is to be restrained legally, it can be
possible for the maintenance of ‘public order’ or protecting the ‘security of the State’. And these
three concepts have been judicially distinguished from each other.145 One has to imagine three
concentric circles, the largest representing ‘law and order’, the next representing ‘public order’,
and the smallest representing ‘security of the State’. Hence, an act may affect ‘law and order’,
but not ‘public order’; an act may affect ‘public order’, but not ‘the security of the State’.146 The
Court reasoned: “The contravention of law always affects order but before it can be said to affect
public order, it must affect the community or the public at large”.147 In the light of this judgment,
we can assert that mere law and order problem or apprehension of the same cannot be a valid
ground for film censorship.
The Censor Board is envisaged as a large expert body carefully constituted to cater to the needs
of different segments of the society. Moreover, the procedure for grant of certificate of exhibition
to a film is quite elaborate. So its decisions must be given full weight. Nonetheless, the role and
145
Ram Manohar Lohia v. State of Bihar, A.I.R. 1966 S.C. 740.
146
Id. at 758-59.
147
Id. at 758.
86
position of the Board is confusing. The members are appointed and virtually controlled by the
Government. The irony is that the game is not confined to only scrapping of movies by the
Board. Even a positive nod by the Board or the FCAT is not ultimate. The Central Government
and at times, the State Government has the final words before it is dragged to the courts.
Consequently, films had to wait for years after completion and before they are actually
released.148 In the meantime, the theme of the film may lose its relevance altogether. In such
circumstances, where does the importance of the Censor Board’s decisions lie? At this juncture,
the judgment of Shankarappa is much needed adrenalin. The 1952 Act provides for the
construction of advisory panels which can only make recommendations to the Board. In case of
‘Rang De Basanti’, the Board invited Defence Minister and people from the forces and in case of
‘The Da Vinci Code’, it invited Information & Broadcasting Minister along with representatives
of the Catholic Bishops’ Conference of India for their advice; but those were the people who
actually had the final say. Next time probably to make a film on the terrorists, the terror groups
will be invited to certify the content. If in every case, people from respective spheres are to be
called to verify the authenticity of the film and give a sort of binding advice, then there is no
rationale of having a statutory expert body. The Board seems to be concerned about the impact
of certain films in the public mind, but there are hardly instances where the Board organized
symposia or seminars, or undertaking surveys to that effect as envisaged in the Rules of the 1952
Act. The Board also had to endure criticism from the film makers of being sympathetic towards
Hindutva forces. Despite the fact, it banned films on Gujarat massacre, it approved films like
‘Gadar – Ek Prem Katha’ (Revolution – A Love Story), which consists of highly provocative
dialogues directed against the Muslims.149 At least the former pieces have basis in real facts but
the latter was a product of wild imagination. Actually, the Censor Board has often failed to act in
an impartial and judicious manner. Because the statutory law is highly centralized and too much
power has been given to the executive, it has become virtually impossible to perform impartially.
The legislation was intended to put restriction on ‘reasonable’ grounds but that has opened the
floodgates for protests, litigations and all sorts of arbitrary acts.
However, the most unfortunate development in the entire debate has been of the political
outlook. What is puzzling is the fact that when the framers of the Constitution, like Mahboob
Ali, K.M. Munshi could think of withering away with the restrictions during the troubled times
of independence, why can’t we follow suit after more than half a century of freedom and
democracy? In addition, the recommendation of the NCRWC is quite unfortunate. The
amendment recommended to Article 19(1)(a) would have added no greater value as the Courts
have already conceded the similar aspects. On the other hand, adding further grounds for
restrictions under Article 19(2) is actually regressive. Not to mention, the Government of India’s
148
E.g., ‘Black Friday’ was completed in 2004 but was released in India in 2007 after 3 years. In between while it
was screened for the overseas viewers, the Indians were kept at bay. Same was the fate of films like: ‘Water’, ‘Final
Solution’ and many others.
149
See Ziya Us Salam, Ideology shackled, THE HINDU, Aug. 13, 2004, available at
http://www.hinduonnet.com/thehindu/fr/2004/08/13/stories/2004081301600100.htm.
87
effort to formulate restrictive guideline for film-makers and political censorship imposed by
various political parties time and again.
The censoring of films also has some other implications. When a film is banned, it does not only
affect the freedom of speech and expression of the film maker, it affects the economical aspect of
many people which is also guaranteed under Article 19(1)(g)150 of the Constitution. Film
making, distribution and screening are essential aspects of film business, if the film is banned, it
affects all those aspects which definitely falls under Article 19(1)(g). In many cases, violent
groups ransack theatres in protest against the screening of certain films. Such actions destroy the
property of the theatre hall owners. On the contrary, the right to property is inviolable under
Article 300A of the Constitution without the authority of law.151 Hence, to allow one’s properties
to be destroyed by some group of people is a clear deprivation of the right to property guaranteed
under the Constitution. Worse was the case in Andhra Pradesh where the Activists of All India
Christian United Front stormed in and ransacked the premises of a multiplex in Hyderabad and
forced the theatre management to stop screening of ‘The Da Vinci Code’, even after the AP High
Court quashed the ban in the State.152 In any such case, the concerned State Governments shall
be held responsible for failing in its duty to secure its people’s rights.
VI. CONCLUSION: QUEST FOR A SOLUTION
Censoring movies in the name of maintaining public peace, respecting emotions of people and
similar reasons are simply ridiculous. It may give wrong message to the public through indirect
interpretation. It is always the best that the viewers themselves watch it and form their own
opinion. General public in a country like ours may be devoid of proper education but not always
of common sense. It is groups with tampered prejudices who deliberately distort the subject
matter and mislead other people to serve their own purposes. Conversely, no group takes the role
of a proper guide.
Subsequent to an elaborate analysis of all those incidents, judgments and laws, the activities and
rationale of having a Censor Board becomes highly debatable. If at all we need to have such a
body, it needs to be more autonomous rather than to be a puppet in the hands of the Government.
Besides, scrapping movies regardless of clearance from the Censor Board is not only an arbitrary
act but a dangerous trend of heightened intolerance. On a whole, the higher courts in the country
have done a laudable job but recurrence of similar issues is the point of debate. Hence, a
permanent solution is essential. It is imperative to enact a new law. The court judgments,
150
INDIA CONST. art. 19, cl. 1. Protection of certain rights regarding freedom of speech, etc. – All citizens shall have
the right – . . . (g) to practise any profession, or to carry on any occupation, trade or business..
151
INDIA CONST. art. 300A. Persons not to be deprived of property save by authority of law— No person shall be
deprived of his property save by authority of law.
152
‘Da Vinci Code’: AICUF activists ransack multiplex premises, OUTLOOKINDIA.COM, June 23, 2006, available at
http://www.outlookindia.com/pti_news.asp?id=394168.
88
especially of Shankarappa and Ranarajan can act as the bacon light in that direction. In the
prevailing circumstances, it is better to have a rating body than a Censor Board of the very nature
we have at present. The extent of censoring power should be very limited. The most important
criteria regarding such body should be that the Government can forward its
suggestions/recommendations but the decision must be taken by it independently. The power of
censorship delegated to the States has to be narrowed down drastically. They must satisfy the
Central authority as to why the ban in their territory is indispensable and that there is no
alternative left.
The power to impose restrictions is not the power which is available for exercise in an arbitrary
manner or for the purpose of promoting the interest of those in power or suppressing dissent.
While we enthusiastically profess right to information,153 we cannot sit back and ban films and
thus, censor information. If artists, playwrights and film makers of India are to exercise their
right to free speech appropriately, the utmost necessity is to do away with the restrictive clauses
under Article 19(2). If at all, any limiting line is to be drawn in the extreme cases, it shall be left
to the judiciary on which the country has reposed enormous faith since inception. Also, the
judiciary has to surge off the recent hiccups and deliver consistently upholding the right as it had
done all through. In case any unlawful means is adopted by any person(s) to stop screening of
films, the Government has to ensure that law and order is maintained by taking appropriate
actions against the person concerned. It is also bound to take necessary preventive measures.
Otherwise, it should be held for contempt of court.
On a whole, the test for allowing restrictions upon free speech should strive to be somewhat
more stringent. Legal restraints upon individual freedom of speech should only be tolerated
where they are absolutely necessary to prevent infliction of actual harm. Therefore, it can be
aptly concluded, if democracy has to evolve, that screening of films and documentaries can never
be denied for reasons based on mere speculation because banning motion pictures is equivalent
to banning the right of freedom of speech and expression. Some developments regarding the
topic are encouraging indeed; nevertheless, we have greater heights to scale.
153
In India, the Right to Information Act, 2005, No. 22 of 2005, has been a path-breaking piece of legislation, which
has been instrumental to empower citizens of the country in bringing out important and useful information of
various types relating to the State which were so far considered ‘confidential’. The mechanism provided under the
statute is used extensively throughout the country by social activists, civil society groups, and common men alike.
89
LAW COMMISSION OF INDIA
ONE HUNDRED EIGHTIETH REPORT

ON
ARTICLE 20(3) OF THE CONSTITUTION OF INDIA

AND THE RIGHT TO SILENCE
MAY 2002
May 9, 2002
No:6(3) (76) /2002 –LC (LS)
Dear Shri Arun Jaitley ji,
I am sending herewith the 180th report on “Article 20 (3) of the

Constitution of India and the right to Silence” of a person accused.
2. The Law Commission had taken up the above said subject, suo
motu, in view of some developments in U.K. and other countries diluting
the right to silence of the accused at the stage of interrogation and in
criminal trial proceedings. In India, the right against self-incrimination is
incorporated in clause (3) of article 20 of the Constitution. Further, after
PURL: https://www.legal-tools.org/doc/a85953/
2
Maneka Gandhi V Union Of India, (1978 (1) SCC 248), Article 21 of the
Constitution of India requires a fair, just and equitable procedure to be
followed in criminal cases. In the present Report, an analysis and a
comparative study of ‘right to silence’ is made based on recently decided
English and European Court cases and the position currently obtaining
in various countries like U.S.A., Australia, Canada, U.K. and China. Our
recommendation is to emphasize that no change in the law relating to
right to silence of the accused is necessary. The right is protected by
Articles 20 (3) and 21 of the Constitution and sections 161 (2), 313 (3)
and 315 of the Code of Criminal Procedure, 1973. If the changes made
in U.K. or those proposed in Australia are introduced in India, such
changes will be ultra vires of Articles 20 (3) and 21 of the Constitution of
India. Our recommendation, therefore, is that no dilution of the existing
right to silence need be made nor can be made.
With regards
Yours sincerely,
(Justice M.Jagannadha Rao)
Shri Arun Jaitley,

Hon’ble Minister of Law, Justice & Co. Affairs,
Shastri Bhawan,
New Delhi.
Report
on
Article 20(3) of the Constitution of India and the Right to Silence
“…..throughout the web of English criminal law, one golden thread is

always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt” (per Viscount Sankey).
(Woolmington vs. DPP, 1935 AC 462 at 481)
3
The ‘right to silence’ is a principle of common law and it means that

normally courts or tribunals of fact should not be invited or encouraged to
conclude, by parties or prosecutors, that a suspect or an accused is guilty
merely because he has refused to respond to questions put to him by the
police or by the Court.
The origins of right to silence may not be exactly clear but the right
goes back to the middle ages in England. During the 16th century, the
English Courts of Star Chamber and High Commission developed the
practice of compelling suspects to take an oath known as the “ex-officio
oath” and, the accused had to answer questions, without even a formal
charge, put by the judge and the prosecutor. If a person refused to take oath,
he could be tortured. These Star Chambers and Commissions were later
abolished. The right to silence is based on the principle ‘nemo debet
prodere ipsum’, the privilege against self-incrimination.
Wigmore regarded the principle of silence as having crept into the

common law almost by accident in the mid-seventeenth century following
the collapse of the political courts of Star Chamber and Commissions. Once
the right was established, the right of the accused was extended to witnesses
and to allegations of crime and to civil litigation. Wood and Crawford have
argued that the device can be attributed to the widespread hostility aroused
by compulsory testimony upon oath. They maintain that the right emerged
in England as a basic democratic right established by public agitation long
before it became the subject of judicial consideration. The second theory,
offered by Maguire and Levy, traces the ‘privilege against self-
4
incrimination’ to the English common law criminal procedure in the middle

ages. Both Levy and Maguire agree with Wigmore that the right was
extended later to witnesses in a criminal case and to allegations of crime
made in civil proceedings. Mc Nair has a third view that the above authors
have put “the cart before the horse”. The privilege originated in Roman
Common Law, applying first to witnesses and to allegations of crime in civil
proceedings before it was extended to the accused in criminal law. The
Criminal Law Revision Committee (UK) said in 1972 in its 11th Report that
the principle did not emerge until the 19th century. (see ‘The Right to
Silence: A Review of the Current Debate) (1990) Vol. 53 Mod L Rev p.
709).
The 16th and 17th centuries show that the privilege against self-
incrimination was closely related to the medieval version, which was
involved in the protection against religious intolerance. In England,
prerogative courts such as the Star Chamber and the High Commission and
ecclesiastical courts used the oath ex-officio. In this procedure, any person
on the street could be picked up, asked to take oath and answer questions for
finding out if they were in disagreement on questions of theology with the
Crown. The Privy Council on a motion from the House of Commons asked
Coke and Chief Justice Popham when the oath could properly be
administered. They replied, “No Man…. shall be examined upon secret
thoughts of his Heart, or of his secret opinion”: (see “An Oath before an
Ecclesiastical Judge ex-Officio”, 12 Coke’s Rep 26 (3rd Ed, 1727). The
Long Parliament abolished the Star Chamber and High Commissions and
forbade ecclesiastical courts to use the oath ex-officio. (see “Origins of the
Privilege against Self-incrimination”: by R.H. Helmhotz 65. New York
5
Univ. Law Rev 962 (1990); Michael R.T. Mc Nair, “The Early Development
of the Privilege against self-incrimination”: 10 Oxford J. of Legal Studies,
66 (1990); Eben Moglen, Taking the Fiflt: Reconsidering the origins of the
Constitutional Privilege against Self Incrimination 92, Mich L. Rev. 1086
(1994). (quoted at pp 216-217 by Prof. Akhil Reed Amar in his ‘The
Constitution and Criminal Procedure, First Principles’ 1999, Yale University
Press).
The right to silence has various facets. One is that the burden is on
the State or rather the prosecution to prove that the accused is guilty.
Another is that an accused is presumed to be innocent till he is proved to be
guilty. A third is the right of the accused against self incrimination, namely,
the right to be silent and that he cannot be compelled to incriminate himself.
There are also exceptions to the rule. An accused can be compelled to
submit to investigation by allowing his photographs taken, voice recorded,
his blood sample tested, his hair or other bodily material used for DNA
testing etc.
Some of the aspects relating to right to silence came to be included in

the Universal Declaration of Human Rights, 1948. Art. 11.1 thereof reads:
“11.1 Everyone charged with a penal offence has the right to be

presumed innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary for his defence.”
The International Covenant on Civil and Political Rights, 1966 to

which India is a party states in Art. 9.1 that none shall be deprived of his
6
liberty except on such grounds and in accordance with such procedure as are
established by law; Art. 9.2 states that any one who is arrested shall be
informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him. Art. 11.3 refers to the right
to be produced in a Court promptly and for a trial. Art. 14(3)(g) refers to
various “minimum guarantees” and states that everyone has a right:
“Art. 14(3)(g): Not to be compelled to testify against himself or to

confess guilt.”
The European Convention for the Protection of Human Rights and

Fundamental Freedoms states in Art. 6(1) that every person charged has a
right to a ‘fair’ trial and Art. 6(2) thereof states:
“Art. 6(2) Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.”
In India, the right against self incrimination is incorporated in clause

(3) of Art. 20 and after Maneka Gandhi’s case: (1978 (1) SCC 248), Art. 21
requires a fair, just and equitable procedure to be followed in criminal cases.
It is initially necessary to bear in mind the difference between burden

of proving an issue (known as the legal or persuasive burden of proof), a
burden which never shifts and the burden of adducing credible evidence
(known as evidential burden), which can go on shifting during the trial.
Several modern statutes, while maintaining the burden of proving a pleading
or charge, alter the evidential burden. For example, in a civil case, a
7
plaintiff may have to prove that the defendant, having borrowed money, is
indebted to him but under Sec. 118 of the Negotiable Instruments Act, the
initial evidential burden is shifted to the defendant if he had executed a
negotiable instrument in favour of the plaintiff. This method of shifting
evidential burden has been resorted to in criminal cases too particularly
where an accused is found in possession of certain property which the law
declares it illegal to possess, such as drugs or stolen property etc. It is
perfectly open to a legislature to shift the evidential burden.
For example, under the Prevention of Corruption Act, 1988 the

evidential burden is shifted to an accused person from whom unaccounted
monies or properties disproportionate to his known sources of income are
recovered. Under the Excise and Customs laws, and laws relating to
smuggling, such evidential burden is initially imposed on the accused in
certain circumstances, where the accused may be having special knowledge
about facts such as where contraband property is recovered from. Such
provisions have been challenged as violative of the principle against self
incrimination but have been upheld in as much as there is no shift in the
burden of proof on the charge which lies on the State or the prosecution.
However, in recent times, the basic principle that the prosecution has
to prove the charge of guilt against the accused beyond reasonable doubt is
being diluted by the legislature in several statutes. This is contrary to basic
rights concerning liberty. Glanville Williams, one of the greatest jurists on
criminal law has stated as follows:
8
“Where it is said that a defendant to a criminal charge is presumed to

be innocent, what is really meant is that the burden of proving his
guilt is upon the prosecution……Unhappily, Parliament regards the
principle with indifference – one might almost say, with contempt.
The Statute Book contains many offences in which the burden of
proving his innocence is cast on the accused…….The sad thing is that
there has never been any reason or expediency for these departures
from the cherished principle; it has been done through carelessness
and lack of subtleties.”
(see Glanville Williams, The Proof of Guilt (1963, 3rd Ed., Stevans pp
184-185).
It is in the above background and in the light of the constitutional

provisions in our Constitution that we propose to consider whether any
changes in the right to silence is necessary and whether, even if made,
whether such changes will be valid.
We shall refer to certain recent developments in other countries.
U.K.
Initially in England, the law-makers were confronted with problems of
terrorism in Northern Ireland. In order to combat the said problem, the
Criminal Evidence (Northern Ireland) Order, 1988 was amended permitting
inferences to be drawn from the silence of an accused where the accused had
a duty to speak. Later on, similar changes were carried out in the English
law by enacting sections 34 to 37 in the Criminal Justice and Public Order
Act, 1994. These provisions permit ‘proper inferences’ to be drawn from
9
the silence of the suspect during interrogation or of the accused at the trial.
The Court can comment on the silence in its summing up to the jury. The
jury can take the silence into consideration.
In a case arising from Northern Ireland, under the Criminal Evidence

(Northern Ireland) Order, 1988 the matter initially came up before the House
of Lords in Murray vs. DPP (1993 Cr. App. Rep. 151). There, the statute
enabled the Judge to taken silence into account. In N. Ireland the matters
would not go before the jury, unlike the provisions in the English Act of
1994. Lord Mustill observed that though the statute in Ireland enabled
‘proper inference’ to be drawn in case of silence of the accused, it was first
necessary that a prima facie case is made out against the accused. Only then
the new provisions could be resorted to for the purpose of drawing
conclusions about the guilt of the accused. The Court has to make a
‘common sense approach’. He made it clear that no finding of guilt could be
arrived at merely based on the silence of the accused.
On appeal, the European Court in Murray vs. United Kingdom (1996)

22 EHRR 29, held that the encroachments into the right to silence made in
Ireland by the Irish law of 1988 did not violate the right to a fair trial nor the
presumption of innocence mentioned in Article 6 of the European
Convention. It was further held that the trial Judge could not draw an
adverse inference merely on account of the silence of the accused and that
the guilt of the accused must be prima-facie established by the prosecution.
An additional condition was laid down that the new provisions could not be
resorted to unless it was proved that the accused was given an opportunity to
10
call for an attorney at the time when he was interrogated by the Police or at
the time of trial. This was a mandatory rule.
After the judgment above referred to, which arose from the Irish law,
the English Parliament, which had in the meantime introduced similar
provisions in the Criminal Justice and Public Order Act, 1994, as applicable
to England and Wales, amended the said Act by the Youth Justice and
Criminal Evidence Act, 1999 by introducing provisions requiring the suspect
or accused to be informed of his right to call an attorney.
Sub-section 2(A) was introduced in 1999 in Section 34 and that

section deals with pre-trial silence. Sub-section (2A) provides an opportunity
to call a lawyer and reads as follows:
“Section 34(2A). Where the accused was at an authorized place of

detention at the time of the failure, sub-sections (1) and (2) above do
not apply if he had not been allowed an opportunity to consult a
solicitor prior to being questioned, charged or informed as mentioned
in sub-section (1) above.”
A similar provision was introduced in Sec.36 by way of Sub-section

(4A). Section 36 deals with failure of the accused to account for objects,
substances, and marks. Sub-section (3A) was introduced in Section 35. That
section deals with right to silence at the trial. Similarly in Sec.37 which deals
with the presence of the accused at the scene of offence, sub-sec.(3A) was
introduced. All these new Sub-sections require that the accused must be
informed that he has a right to the presence of an attorney whenever he is
11
questioned. If he had not been so informed, the fact that he remained silent,
could not be taken into consideration.
If therefore, no presumption can be raised on account of the silence of

the accused unless a prima-facie case of guilt has been established by the
prosecution, it is difficult to see, and several jurists have also stated
similarly, that there is no extra advantage in permitting the judge to rely on
the silence of the accused. Further, while the amendment to the English law
has made a provision for raising “proper inferences”, the European Court in
Murray Vs. UK has reduced its rigour by limiting the use of the silence for
the limited purpose of an assurance or corroboration and that too, provided
the accused was informed of his right to have a lawyer by his side at the time
of the questioning.
But, according to the House of Lords and the European Court, silence
of the accused enters into the decision-making process before arriving at a
finding that the accused is guilty beyond reasonable doubt.
One may ask the question as to in how many cases Police Officers in
India are strictly following the rules laid down by the Supreme Court in
D.K.Basu’s case? In a pending public interest litigation in the Supreme
Court, it was reported by the amicus very recently that, according to the
information received from various States, it was clear that D.K.Basu
guidelines are not being followed in most of the States. Can anybody assure
that in India, the Police invariably would inform a person in detention that
he has a right to call a lawyer at the time of his interrogation? Even if we
introduce a rule to that effect and even if the Police record in their diary that
12
such an opportunity was given, one cannot say how much credence can be
given to such a noting in India. Even in England, it was stated that, if the
signature of the accused was not obtained in the diary after recording that he
was informed of his right to call an attorney, that would amount to a breach
of section 78 of the Police and Criminal Evidence Act, 1984. One other
thing to be noted is that Article 6(1) of the European Convention only speaks
of a right to a fair trial and Art. 6(2) to a presumption of innocence. There is
no reference to a right against self incrimination, as contained in Article
20(3) of our Constitution or as contained in the Fifth Amendment of the
American Constitution. In Murray vs. UK, the European Court no doubt
observed that if the silence of the accused was taken into account, after a
prima facie case was established and the accused was informed of his right
to call for an attorney, the provision as to fair trial in Art. 6(1) would not be
violated.
We shall next refer to the recent decision of the European Court in

Condron vs. The United Kingdom rendered on 2nd May, 2000. The case
directly arose under the English Act of 1994. The Court relied upon the
judgment in Murray’s case already referred to and stated that the right to
silence was not absolute but at the same time a prima facie case must be
made out and the safeguards mentioned in that judgment namely, giving an
opportunity to the accused or suspect, to call for a lawyer, must be followed.
Condron’s case was one where the accused persons exercised their right to
call for a lawyer and as the lawyer advised them to remain silent during
interrogation by the police, they remained silent and when cross-examined at
the trial (a procedure which does not obtain in India), they said that they
13
remained silent because of the advice of the lawyer. The Court then stated
as follows:
“…..the Court would observe at this juncture that the applicants were
subjected to cross examination on the content of their solicitor’s
advice can not be said to raise an issue of fairness under Art. 6 of the
Convention. They were under no compulsion to disclose the advice
given, other than the indirect compulsion to avoid the reason for their
silence remaining at the level of a mere explanation. The applicants
chose to make the content of their solicitor’s advice a live issue as part
of their defence. For that reason, they cannot complain that the
scheme of sec. 34 of the 1994 Act is such as to override the
confidentiality of their discussions with their solicitor”.
The above observations of the European Court lead to this. If the
accused remains silent, they run the risk of an adverse inference. But if they
seek legal advice and state that their lawyer advised them to remain silent,
the Court would then say that there was a fair trial and that they had waived
their privilege of confidentiality. They would be prejudiced either way.
We may further notice that in Condron’s case, the solicitor was also
examined at the trial as to the advice he had given. This is clear from what
the Court observed later:
“They (accused) testified that they acted on the strength of the advice
of their solicitor who had grave doubts about their fitness to cope with
police questioning….their solicitor confirmed this in his testimony in
the voir dire proceedings…….then admittedly the trial Judge drew the
jury’s attention to this explanation. However he did so in terms which
left the jury at liberty to draw an adverse inference notwithstanding
that it may have been satisfied as to the plausibility of the explanation.
14
It is to be observed that the Court of Appeal found in terms of the trial

Judge’s direction deficient in this respect…In the Court’s opinion, as
a matter of fairness, the jury should have been directed that it could
only draw an adverse inference if satisfied that the applicant’s silence
at the police interview could only sensibly be attributed to their
having no answer or none that would stand up to cross examination….
….As the applicants have pointed out, it is impossible to
ascertain what weight, if any, was given to the applicant’s silence (by
the jury). In its John Murray judgment, the Court noted that the trier
of fact in that case was an experienced Judge who was obliged to
explain the reasons for his decision to draw inferences and the weight
attached to them. Moreover, the exercise of the Judges discretion to
do so was subject to review by the appellate courts….However, these
safeguards were absent in this case. It was even more compelling to
ensure that the jury was properly advised on how to address the issue
of the applicants’ silence. It is true that the Judge was under no
obligation to leave the jury with the option of drawing an adverse
inference from their silence, and left with the option, the jury had
option to do so or not to do so. It is equally true that the burden of
proof lay with the prosecution to prove the applicants’ guilt beyond
reasonable doubt and that the jury was informed that the applicants’
silence could not “on its own prove guilt”…However,
notwithstanding the presence of these safeguards the Court considers
that the Judge’s omission to restrict the jury’s discretion must be seen
as incompatible with the exercise of their right to silence at the police
station.”
The Court observed further
15
“…the Court of appeal had no means of ascertaining whether or not

the applicants’ silence played a significant role in the jury’s decision
to convict…”
The Court observed that sec. 34 of the English Act as introduced in 1994
gave the discretion only to the jury and inasmuch as the Judge did not give
the discretion to the jury, the conviction was liable to be set aside. The
Court further observed:
“Any other conclusion would be at variance with the fundamental
importance of the right to silence, a right which, as observed earlier
lies at the heart of the notion of a fair procedure guaranteed by Art. 6.”
We have set out passages from the judgment of the European Court in
Condron’s case which arose out of the UK law as amended in 1994, in
sufficient detail, only to show the ramifications into which the English law
has been thrown after the 1994 amendments.
Let us, therefore, consider the new problems the English Courts are
presently facing after the 1994 changes in the law relating to the right to
silence. Presently in most cases, the accused would say, upon being
questioned, that his lawyer had asked him to remain silent. Questions have
arisen as to whether the lawyer has advised the accused to remain silent
because the lawyer felt that the accused might not be able to withstand the
hard questioning by the police or the clever or complicated questions of an
able prosecutor. Questions have also arisen as to whether the lawyer knew
about the guilt of the accused and felt that the accused should stand by his
constitutional right. Yet another question that has arisen is whether the
lawyer of the accused can be cross-examined, as done in Condron’s case to
16
reveal the details of the advise and whether that would or would not violate
the basic principle of confidentiality between a lawyer and his client.
We shall refer to some more problems faced by English Courts after

the changes of 1994. For example, the present law requires the court to
draw a ‘proper’ inference against the accused who has remained silent when
questioned by the Police or by the Court. There are no guidelines as to what
type of inference should be drawn in different situations or facts. Further,
even after 1994, it is accepted that silence alone cannot be treated as
evidence against the accused unless a prima facie case is made out first.
Opinion about prima facie case can always differ. For example, an accused
may want to remain silent as he does not recognise the authority of the
person questioning his innocence. Jesus might have opted to remain silent
as he did not accept the authority of Pontius Pilot to question his innocence.
(see Mathew 27: 11-14; Luke: 22: 2-5) (quoted by Rosemarry Pattenden on
“Inference from Silence” 1995 Cr.L. Rev. p 602). An accused may have
been silent if he felt that the prosecution case was weak. He may have
remained silent because his lawyer had asked him to remain silent.
It is again not clear what Lord Mustill in the House of Lords or later
the European Court meant in stating that a prima facie case must first be
established by the prosecution before any inference is drawn from the
silence of the accused (see Murray vs. DPP (1993) Cr. App. Rep. 151 (H L.)
and (1996) 22 EHRR 29). In the same judgment in the House of Lords,
Lord Slynn used the words “clear prima facie case” and Kelley J in R vs.
Murphy (NICA Unrep. 2-4-93), used the words “strong prima facie case”. It
is again not clear whether the inference that may be drawn by the court
17
against an accused should relate to the specific facts or whether it could be a

general inference about the guilt of the accused. But, Lord Mustill said that
sec. 35 could apply to one issue and may not apply to other issues. It is not
clear how this can be done in practice. In England, an accused may, in fact,
rely on sec. 1(f)(ii) of the Criminal Evidence Act, 1898 and contend that he
does not want to testify because of the risk of cross examination. What
would happen to that right is not clear. For example, in R vs. Barkley
(NICR, Nov. 27, 1992) the accused refused to say anything because he
feared that the co-accused may threaten him if he pointed out that the co-
accused was the really guilty person. Could it then be said that even in these
circumstances, it was a fit case, to draw an inference against the accused,
because he remained silent?
Silence can always be consistent with innocence – the accused might

remain silent because of shock, confusion, embarrassment, a desire to
protect another person or to avoid reprisals, or in order to conceal some
other improper conduct of some other person or it may be his personal trait
to generally be silent or he may be having a low I.Q. or there may be a
problem of language or literacy; there may be drug dependency; he may not
have understood the caution administered by the police; he may not have
realised that certain facts known to him would prove his innocence; or as
already stated, he may have remained silent because of a bona fide advice by
a lawyer. An accused cannot be punished because of a wrong advice of a
lawyer. In England it is also curious that except sec. 35 the other provisions,
namely sec. 34, 36 and 37 even apply to children and those mentally ill or
handicapped. What is to happen to the right to seek legal advise as
permitted under sec. 58 of the Police and Criminal Evidence Act, 1984?
18
These questions have still not been answered satisfactorily. Supposing an

accused, when questioned at the trial, answers “I do not know” or “it is not
true”, can an inference be drawn against him on the ground that the above
words amounted to silence? If not, is there any difference between his
verbal denial and his silence?
As already stated, initially the encroachment into the right to silence

started with the Criminal Evidence (Northern Ireland) Order, 1988 during
times when terrorist activities started on a big scale in Ireland. The Law
Revision Committee had earlier felt in 1972 that such an encroachment was
necessary in the law relating to silence, in the case of suspected terrorists,
serious crimes of armed robbery and in regard to businessmen suspected of
sophisticated offences of serious fraud (see 11th Report on Evidence (1972)
by the Criminal Law Revision Committee (Cmnd. 4991, para 21 (v) and 30)
and Report of Fraud Trials Committee 1986 (para 2.32). A law which was
proposed to tackle terrorism in Ireland, came to be accepted in England in
1994 and applied to all cases of crimes where an accused would choose to
remain silent.
In England, it has been lamented that the Government had brought the
1994 changes on the basis of the 11th Report of 1972 of the Criminal Law
Review Committee even though two other Royal Commissions had
recommended that the right to silence could not be encroached upon. (see
Report of the Royal Commission on Criminal Procedure (Cmnd. 8092,
1981) paras 4.47 and 4.53 and the Report of the Royal Commission on
Criminal Justice, Ch.IV, paras 20-25. (ibid, 1995 Crl. L. Rev. p. 4).
19
As to when a Court can say that a prima facie case has been proved
and as to when a Court can say it has sufficient evidence of the accused
having been advised of his right to call an attorney, these matters are capable
of becoming serious issues in Indian courts. If the accused and the lawyers
are also to be cross examined in India, as to what advise was given, there
would be more confusion. It, therefore, appears obvious not to go by the
changes of 1994 made in the English law. Otherwise, there will be more
litigation, more uncertainty and more arguments for the defence and perhaps
more acquittals in India. In fact, in Condron’s case, the European Court has
referred to several judgments of the Court of appeal in England between
1994 and 2000 and the said judgments reveal that the English law has
become more uncertain after 1994..
There are also several articles written by leading jurists published in

the Criminal Law Review (UK) and other journals right from 1994 referring
to the adverse consequences and serious problems that have crept into
English law on account of these new changes.
Australia:
In New South Wales, though the prosecution is expressly prohibited
from commenting to the jury on the fact that the defendant did not give
evidence, the judge and any party (other than the prosecution) may comment
to the jury if the defendant does not adduce evidence. However, there are
restrictions in the nature of comments which are permitted. Any suggestion
that the defendant did so because of a belief of guilt is prohibited.
20
Section 20 reads as follows: (NSW)

“Comment on failure to give evidence:
S.20. (1) This section applies only in a criminal proceeding for an
indictable offence.
(2) The judge or any party (other than the prosecution) may comment
on a failure of the defendant to give evidence. However, unless the
comment is made by another defendant in the proceeding, the
comment must not suggest that the defendant failed to give evidence
because the defendant was, or believed that he or she was, guilty of
the offence concerned.
……………… ………………… ………………..
(5) If:
(a) two or more persons are being tried together for an indictable
offence; and
(b) comment is made by one of those persons on the failure of any of
those persons to give evidence,
the judge may, in addition to commenting on the failure to give
evidence, comment on any comment of a kind referred to in paragraph
(b).”
Under sections 12 and 17, the defendant is a competent but not a

compellable defence witness. In spite of the prohibition on prosecution
comment, it can happen that the prosecution may refer to the judicial
comment that the defendant remained silent. The prosecutor has however to
take care to see that he is not adopting the judge’s comment as his own.
21
The question as to the limits of the right to silence indeed arose in

Weissensteiner vs. The Queen (1993) 178 Com Law Rep 217. In that case,
which arose from Queensland, by majority of four against three, Mason CJ,
Brennan, Deane, Dawson and Toohey JJ upheld the trial judge’s direction to
the jury that an inference of guilt could be drawn if the defendant elected not
to give evidence about facts which must have been within his special
knowledge. They further held that adverse inference could be drawn from a
defendant’s election not to testify where the evidence established a prima
facie case, and that the “silence” could then go into the evaluation of the
evidence before the court. The majority, however, admitted that mere
failure to testify, was not evidence of guilt and that silence could not fill up
gaps in the evidence. The judge was bound to inform the jury that the
defendant was entitled to remain silent and that there could be good reasons
for his silence which was unrelated to his guilt.
As stated earlier, the above case arose from Queensland where, the
relevant statute did not contain any prohibition against comment. There was
no section corresponding to sec. 20 of the New South Wales law.
In the same case, the majority quoted some early English rulings to
the effect that the right to silence was always part of the common law, both
in civil and criminal cases, that a person who could be presumed to have
knowledge of some facts, must speak out and if not, that could go against
him. An earlier decision in Australia, namely, Petty vs. Queen: (1991) 173
Com L.R. 95 was distinguished. (In Petty, it was decided that, at trial it was
not permissible to suggest that the accused’s exercise of the right to silence
before trial, could provide a basis for inferring consciousness of guilt or for
22
inferring that he was aiding a defence newly invented which he failed to

mention earlier.) It was observed that Petty did not determine whether it
was permissible for the trial judge to instruct the jury that an inference
available from facts proved by the Crown could be drawn more safely when
the accused elected not to give evidence on relevant facts which the jury
perceived to be within the personal knowledge of the accused.
Mason CJ observed on behalf of the majority as follows:
“…. doubts about the reliability of witnesses or about the inferences to

be drawn from the evidences may be readily discounted in the absence
of contradictory evidence from a party who might be expected to give
or call it. In particular, in a criminal trial, hypotheses consistent with
innocence may cease to be rational or reasonable in the absence of
evidence to support them when that evidence, if it exists at all, must
be within the knowledge of the accused.”
At the same time, the following exceptions were accepted:
“Of course, an accused may have reason not to give other than that the
evidence would not assist his or her case. The jury must bear in mind
in determining whether the prosecution case is strengthened by the
failure of the accused to give evidence. Ordinarily, it is appropriate
for the trial judge to warn the jury accordingly.”
“Not every case calls for explanation or contradiction in the form of

evidence from the accused. There may be no facts peculiarly within
23
the accused’s knowledge. Even if there are facts peculiarly within the
accused’s knowledge, the deficiencies in the prosecution case may be
sufficient to account for the accused remaining silent and relying upon
the burden of proof cast upon the prosecution. Much depends upon
the circumstances of the particular case and a jury should not be
invited to take into account the failure of the accused to give evidence
unless that failure is clearly capable of assisting them in the evaluation
of the evidence before them.”
Mason CJ further observed:
“There is a distinction, no doubt a fine one, between an inference of

guilt merely from silence and drawing an inference otherwise
available, more safely, simply because the accused has not supported
any hypothesis which is consistent with innocence from facts which
the jury perceives to be within his or her knowledge. In determining
whether the prosecution has satisfied the standard of proof to be
requisite defence, it is relevant to assess the prosecution case on the
footing that the accused has not offered evidence of any hypothesis or
explanation which is consistent with innocence.”
After referring to all these various possibilities, Mason CJ clarified:
“The failure of the accused to give evidence is not by itself evidence.

It is not an admission of guilt by conduct. It cannot be, because it is
the exercise of a right which the accused has, to put the prosecution to
its proof. In some other circumstances, silence in the face of an
24
accusation, when an answer might reasonably be expected, can

amount to an admission by conduct. (see e.g. Reg vs. Mitchell (1892)
Cox. C.C. 503; Reg vs. Chandler (1976) (1) WLR 585 and discussion
in Young, “Silence as evidence” Australian Law Journal, Vol. 66
(1992) p. 675). But when an accused elects to remain silent at trial,
the silence cannot amount to an implied admission. The accused is
entitled to take that course and it is not evidence of either guilt or
innocence. That is why silence on the part of the accused at his or her
trial, cannot fill in any gaps in the prosecution case; it cannot be used
as a make-weight. It is only when the failure of the accused to give
evidence is a circumstance which may bear upon the probative value
of the evidence which has been given and which the jury is required to
consider, that they may take it into account, and they may take it into
account only for the purpose of evaluating that evidence. The fact
that the accused’s failure to give evidence may have this consequence
is something which, no doubt, an accused should consider in
determining whether to exercise the right or not.”
The principles laid above, together with the exceptions referred to, leaves
one absolutely confused. They, in fact, appear to be absolutely
contradictory.
Brennan and Toohey JJ gave a separate judgment concurring with

Mason CJ. They referred to sec. 3 of the Criminal Law Amendment Act,
1892 (Q) which made a person accused of an indictable offence and the wife
or husband of every accused person, a competent but not a compellable
witness. In 1961, this provision was carried into sec. 618A of the Criminal
25
Code. In 1977, sec. 8 of the Evidence Act, 1977 (Q) reproduced, with some
variations, the earlier enactments. In several jurisdictions in Australia,
similar laws precluded the making of any comment by the prosecution
(Evidence Act, 1906 (West Australia); sec. 85(1)(c) of evidence Act, 1910
(Tasmania); R 18(1)(II) Evidence Act, 1929 (South Australia); S 74(1)
Evidence Act, 1971 (ACT). In some instances, the statutes prohibited
comment by the Judge (sec. 407(2) Crimes Act, 1900 (NS Wales); s. 9(3) of
Evidence Act 1939 (NT); s. 399(3) Crimes Act, 1958 (Victoria), on the
failure of an accused person to testify. No such provision was found in the
Queensland statute.
We may point out that no provision from any Charter or Bill of Rights
which guarantees a right against self-incrimination has been adverted by the
majority in the above Judgment.
On the other hand, the minority Judgment of Garedron and McHugh

JJ observe significantly that the right to silence is, of course, concerned with
more than the presumption of innocence and the duty of the prosecution to
prove guilt beyond reasonable doubt. They stated that, it is the presumption
of innocence and the prosecution’s burden of proof which preclude an
adverse inference being drawn from silence. Silence does not amount to
evidence. “Because of the presumption and because of the burden of proof,
silence of that kind proves nothing and provides no basis for any inference
adverse to the accused. Neither the presumption of innocence nor the
burden of proof bears upon the situation in which failure to explain is, itself
evidence. Nor does the privilege against incrimination in circumstances
26
involving an assumption that an innocent person would offer an explanation,

the accused is not asked to testify against himself, but in favour of himself.”
In our view, the minority judgment is more consistent with the right
against self-incrimination while, the majority judgment of Mason CJ and the
other concurrent judgment contain mutually contradictory passages. The
majority had no occasion to refer to any constitutional guarantee like Art.
20(3) of our Constitution nor to any international convention such as the
ICCPR. As stated earlier, any trial Judge will find it extremely difficult to
apply the exceptions to any given set of facts. The majority view is likely to
lead to more litigation. Latter cases in Australia are R vs. O.G.D. (1998) 45
NSW CR 744, RPS vs. The Queen 2000 HCA 3, have also not been able to
lay down the law in clearer terms.
Another unfortunate fact that has to be noted so far as Australia is

concerned, is that the right of the defendant to make an unsworn statement at
trial has been abolished in New South Wales in 1994, although the right still
exists in some residual trials. Unsworn statements have now been abolished
in all Australian jurisdictions. According to several jurists, this is yet
another serious infraction of the right of an accused to speak, in case he
wants to speak.
The Law Reform Commission of New South Wales, in its recent

Report No.95 rendered in the year 2000, on the subject “The right to
silence”, after a review of the law in various countries and within Australia,
has made several recommendations. One of the important recommendations
is Recommendation No.1 and is to the effect that legislation based on
27
sections 34, 36 and 37 of the Criminal Justice and Public Order Act, 1994
(UK) should not be introduced in New South Wales. However,
Recommendation No. 5(a) and 5(b) appears to us to take away the effect of
the Recommendation No. 1. The Recommendations 5(a) and (b) are
important. Recommendation 5(a) states that the defendant shall be required
to disclose the following material and information, in writing, unless the
Court directs otherwise:-
“5(a) In addition to the existing notice requirements for alibi-

evidence and substantial impairment by abnormality of mind, whether
the defence, in respect of any element of the charge proposes to raise
issues in answer to the charge, (e.g. accident, automatism, duress,
insanity, intoxication, provocation, self-defence; in sexual assault
cases, consent, a reasonable belief that the complainant was
consenting, or that the defendant did not commit the act constituting
the sexual assault alleged; in deemed supply cases, whether the illicit
drug was possessed other than for the purpose of supply; cases
involving an intent to defraud, claim of right.
Recommendation 5(b) reads as follows:

“5(b) In any particular case, whether falling within Recommendation
5(a) or not, the trial Judge or other Judge charged with responsibility
for giving pre-trial directions may at any time order the defendant to
disclose the general nature of the case he or she proposes to present at
a trial, identifying the issues to be raised, whether by way of denial of
the elements of the charge or exculpation, and stating, in general
terms only, if actual basis of the case which is to be put to the jury.”
28
Recommendation No. 10 then refers to the consequences of an

accused not complying with the direction to furnish the material specified in
Recommendation No .5 ((a) and (b)). It reads as follows:
“10. The Commission recommends that Judges be given a discretion

to impose any of the following consequences for non-disclosure or
departure from the disclosed case during the trial:
(a) A discretion to refuse to admit material not disclosed in
accordance with the requirements.
(b) A discretion to grant an adjournment to a party whose case
would be prejudiced by material introduced by the other party
which was not disclosed in accordance with the requirement.
(c) In jury trials, a discretion to comment to the jury or to permit
counsel to comment, subject, if appropriate, to any conditions
imposed by the trial Judge.
(d) In trials without jury, the trial Judge may have regard to the
failure to comply with the disclosure requirements in the same
way as a jury would be entitled to do so.”
It appears to us that while the N.S.W. Law Commission has not

recommended the incorporation of provisions similar to sections 34, 36 and
37 of the English Act of 1994, it has however made recommendations to
require the accused to disclose his defence in several respects and upon the
failure to so disclose, make adverse comments. Both the prosecution and the
Judge are permitted to comment on the refusal of the accused to speak. In
our view the above restrictions on the right to silence do not amount to a fair
29
due process and further the jury and the Court cannot be allowed to take the
silence into account before arriving at a finding that the prosecution has
established guilt of the accused beyond reasonable doubt.
The Commission, no doubt, refers to a distinction between the silence

at the time of questioning by the police, when no charges are framed and to
the right at the trial, after charges are framed and states that silence at the
stage of interrogation of police cannot have the same importance as silence
at the trial, in as much as at that stage, there is no allegation or evidence. At
the stage of interrogation, the suspect may remain silent because things are
not clear. At the stage of trial, there is a charge and there is evidence and
therefore there is less chance of a shock or confusion or inadequate
preparation to answer the questions. Even so, it does not preclude silence at
the stage of interrogation being taken into account by the Judge or the Jury.
The N.S.W. Law Commission in its Report indeed refers to various

aspects relating to the right to silence and to Murray vs. UK decided by the
European Court, but the Commission does not, however, refer to the
conditions laid down by the European Court, namely, that a prima facie case
must be made out first and that even so, silence cannot be relied upon unless
the suspect or the accused has been informed of his right to call an attorney.
We do not also find any justification for the Legislature in Australia in
abolishing the right of the accused to speak if he so desires. In addition, the
Commission has now recommended that, not only the Court, but even the
prosecution can be permitted to comment on the silence because the jury
may mistake the comment made by the judge as an indication that an
30
inference of guilt may easily be drawn. The N.S.W. Commission, in the

body of the Report, recommended as follows:
“The Commission recommends that prohibition on prosecution

comment in sec. 20(2) as Evidence Act 1995 (NSW) should be
removed. Prosecutors should be permitted to comment upon the fact
that the defendant has not given evidence, subject to the restrictions
which apply to comment by the trial judge and counsel for the
defendant and any accused. The prosecution should be required to
apply for leave before commenting.”
As already stated, we are of the view that the above procedure is not a
fair procedure. The law relating to prosecution in Australia, in our view,
does not conform to the minimum standards prescribed by the ICCPR.
Unfortunately, even the right of the accused to speak out has been abolished.
We shall next refer to the law in England and Canada, which is

absolutely in favour of the right of the accused to remain silent.
U.S.A.
In The United States, the Fifth Amendment relates to the fundamental
right against self incrimination and contains, more or less, the same language
as in Article 20(3) of our Constitution. In fact, there is a federal statute of
1878 which declared that it would be competent for an accused to give
evidence on his own behalf but that his failure to do so shall not be subject
31
to any unfavourable inference against him. Initially, in Adamson vs.

California (1947) 332 US 46, the question relating to the right to silence
came to be considered. The majority did not refer to the Fifth Amendment.
But the minority laid down, while referring to the Fifth Amendment, that the
right to silence was absolute in US. Subsequently, in Griffin Vs. California
(1965) 380 US 609, the Supreme Court of United States refused to permit
prosecuratorial or judicial comment to the jury upon a defendant’s refusal to
take the ‘stand’ in his own behalf, because such comment was a “penalty
imposed by courts for exercising a constitutional privilege” and it “cuts
down on the privilege by making its assertion costly”. The penalty
“needlessly encouraged” a waiver of the defendant’s Fifth Amendment right
to plead not guilty. The Court has stated that the defendant has an absolute
right not to take the “stand” and that no adverse inference of guilt can be
drawn if the defendant exercises his right to silence. An innocent defendant
may want to avoid taking the “stand” because he feels that he is likely to
perform badly, being uninformed about the law as compared to an
experienced prosecutor who is skilled in the artificial rules governing court
rooms and that the prosecutor may be able to trip him up.
However, American courts, have laid down a different principle,

namely that, at a latter stage the silence of the accused can be taken into
consideration by the court while deciding about the quantum of punishment.
Such questions arise during plea bargaining. The Court said that the
pressure to take the ‘stand’ in response to the ‘sentencing issue’ was not so
great as to impair the policies underlying the self-incrimination clause.
Similarly a notice by defendant regarding a plea of alibi does not offend the
32
right against self-incrimination. (see “The Constitution and the Criminal

Procedure, First Principles” by Prof. Akhil Amar, Yale University, USA).
Even in Miranda Vs. Arizona (1966) 384 US 436, it was held that the
police have to give a warning to the suspect and that the suspect has a right
to remain silent. He has a further right to the presence of an attorney during
questioning. It is also important to note that the US Supreme Court has
nowhere laid down that on account of the silence of the accused, an adverse
inference can be drawn or that the silence can be treated as a piece of
corroboration for inferring of guilt.
Canada:
We shall next refer to the judgment of Canadian Supreme Court in R
Vs. Noble (1997) (1) SCR 874. The majority in that case held that the right
to silence is absolute and the silence of an accused cannot lead to any
adverse inference against him nor be used for the purpose of arriving at a
finding of guilt beyond reasonable doubt.
Section 11(c) of the Canadian Charter of Rights and Freedoms

provides that any person charged with an offence has a right not to be
compelled to be a witness in proceedings against him in respect of an
offence. Section 7 of the Charter also states that every person has the right to
life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
Section 11(d) codifies the common law presumption of innocence and the
right to a fair trial.
33
Section 4(6) of the Canadian Evidence Act 1985, provides as follows:

“Section 4(6). The failure of the person charged or of the wife or
husband of that person to testify shall not be made the subject of
comment by the Judge or by counsel for the prosecution.”
In the above case, the judgment for the majority was pronounced by Sopinka
J who observed that the right to silence was a fundamental principle of
justice incorporated into sec. 7 of the Canadian Charter and that sec. 11(c)
referred to the non-compellability of a person to be a witness against
himself. The majority referred to R vs. Hebart 1990(2) SCR 151 wherein it
was held that there was a right to silence upon arrest, charge or detention and
that the State could otherwise trick a detained accused into making self
incriminating statements by using an undercover police office eliciting
information in the cell of the accused under the coercive power of the State.
The right to silence vested in the accused could only be waived by an
informed decision of the accused. The Court also referred to R vs.
Chambers 1990(2) SCR wherein it was laid down that it would be a snare
and a delusion to caution the accused that he need not say anything in
response to the police officer’s question and at the same time put in the
evidence that the accused had exercised his right to remain silent and that the
said silence suggested guilt. The court also referred to R vs. Amway Corp.
1989(1) SCR p.21 where in it was held that the silence of an accused could
not be used to determine his guilt. After referring to the above decisions,
Sopinka J observed as follows:
34
“….the use of silence to help establish guilt beyond a reasonable

doubt is contrary to rationale behind the right to silence. Just as a
person’s words should not be conscripted and used against him or her
by the State, it is equally inimical to the dignity of the accused to use
his or her silence to assist in grounding a belief beyond a reasonable
doubt. To use silence in this manner is to treat it as communicative
evidence of guilt…The failure to testify tends to place the accused in
the same position as if he has testified and admitted his guilt.”
It was further held by the majority that sec. 11(d) protects the accused when
it states that the silence of the accused cannot be placed on the evidentiary
scales against the accused. The presumption of innocence indicates that it is
not incumbent on the accused to present any evidence at all. If the Crown
had proved the case beyond reasonable doubt, the silence of the accused may
be referred to as evidence of the absence of an explanation, which could
raise a reasonable doubt. In fact, in that event, the accused need not testify,
and if he does not, the Crown’s case prevails and the accused will be
convicted. It is only in this sense that the accused “need respond”, once the
Crown has proved its case beyond a reasonable doubt. If, silence is taken
into account after arriving at a finding of guilt, it does not offend either the
right to silence or the presumption of innocence. Sopinka J further observed
as follows:
“The right to silence and its underlying rationale are respected, in that
the communication or absence of communication is not used to build
a case against the accused. The silence of the accused is not used as
inculpatory evidence, which would be contrary to the right to silence,
35
but simply is not used as exculpatory evidence. Moreover, the

presumption of innocence is respected, in that it is not incumbent on
the accused to defend him – or her – self or face the possibility of
conviction on the basis of his or her silence. Thus a trier of fact may
refer to the silence of the accused simply as evidence of the absence
of an explanation which it must consider in reaching a verdict. On the
other hand, if there exists in evidence a rational explanation or
inference that is capable of raising a reasonable doubt about guilt,
silence cannot be used to reject this explanation”.
The majority also referred to R vs. Francois 1994(2)SCR 827, and to R vs.
Lepage 1995(1) SCR 654, and further observed:
“while it is permissible to conclude from the failure to testify that

there is no unspoken, innocent explanation about which the trier of
fact must speculate it is not permissible to use silence to strengthen a
case that otherwise falls short of proving guilt beyond a reasonable
doubt. If the totality of the evidence leads to guilt beyond a
reasonable doubt, the accused’s silence simply fails “to provide any
basis to conclude otherwise.”
Sopinka J further observed that silence was not either inculpatory or

exculpatory. Silence could however confirm a finding of guilt already
arrived at independently on the basis of the evidence led by the prosecution.
Silence may indicate that the accused has not put forward any explanation or
evidence to contradict or negative the evidence produced by the prosecution
to prove guilt beyond reasonable doubt. In this limited sense, silence may be
36
used but if there is a rational explanation which is consistent with innocence

and which may raise a reasonable doubt, then silence cannot be used to
remove that doubt. The admissible uses of silence arise only after the trier
of fact has reached the belief of guilt beyond reasonable doubt and therefore
silence indeed is “superfluous”. Finally Sopinka J observed:
“I would therefore conclude that courts should generally avoid using

the potentially confusing term ‘inference’ in discussing the silence of
the accused. “Inference” could be taken to indicate that the trier of
fact used silence to help establish the case for the guilt beyond
reasonable which is not permissible use of silence. Indeed, because of
the potential for confusion, discussion of the silence of the accused
should be generally avoided. However where silence is mentioned by
the trial Judge as confirmatory of guilt, given the totality of evidence,
but not as a “make-weight”, there is no reversible error.”
It will thus be seen that according to the Canadian view it would be an error
of law if the court directs the Jury to take into consideration the silence of
the accused for arriving at a decision on the guilt of the accused. On the
other hand, we have seen that the English view and the view of the European
Court particularly in Condron’s case is just the opposite. It is held there that
the jury can be asked to take the silence into consideration for arriving at a
decision on the guilt of the accused.
China
37
It is very interesting to note that in China, the latest policy is to

introduce the right to silence into its criminal jurisprudence. Such a
regulation has been introduced recently in the procuratorates in Shenyang,
Dalian and other cities.
The following item on (see China Daily dt. 23.11.2000) ‘Right to

Silence in China’s Judicial System’ is worth noting. (see http.//www.china.
org.cn/English/2000/nov)
“Procurators should prosecute suspects based on proof other than a

confession in criminal cases, as announced by a procuratorate in
Fushun of northeast China’s Liaoning Province in a newly-issued
regulation.
The regulation guarantees people’s right to keep silence and entitles

suspects to defend himself against accusations or keep silence during
a criminal interrogation.
It is the first time for China’s judicial system to officially adopt right
to keep silence for suspects, marking the country’s progress in
protection of human right and freedom of the people.
According to the regulation, law officers will give no credit to

confession, and a conviction will be based on other impersonal and
reliable proof, explained by Yang Xiaodong, researcher with the
Research Office of Liaoning Provincial People’s Procuratorate.
38
In spite of its subjectivity, a confession has been taken as the major

source of proof in trying criminal cases in China. The right to silence
application is believed to help eliminate inquisition by torture or
extorting a confession.
The regulation practically admits the presumption of innocence and

therefore has brought a radical change to the traditional judicial
concept in the country, said Yang.
The presumption of innocence means that a suspect is supposed

innocent when the interrogation begins and will not be convicted
unless there is proof to prove his guilt. Jiang Xiaoyang, a lawyer with
a Ph.D. degree from Beijing University, said that some real criminals
might escape punishment after application of the presumption of
innocence and right to silence, but that is the price the judicial system
will have to pay in protection of innocent people.
It reflects the respect for human beings’ dignity and spiritual freedom,
said Jiang.
Judiciary justness has always been the focus of media and National
People’s Congress (NPC), the country’s highest legislative body.
China’s top leaders have also pledged many times to curb unlawful
acts inside the judicial system.
39
So far, the concept of right to silence has been introduced and

implemented in procuratorates in Shenyang, Dalian and otherk cities
in the province.
Chen Jie, judge in Dalian Intermediate People’s Court said that

though the right to silence is only at the beginning in China, it will
trigger a series of innovations to the country’s legal system.
China has been making reforms on its legal system in hope of

protecting the citizens’ rights and interests in an all-round way and
ensures judicial fairness.
China established a new Criminal Law in 1996 and made amendments

to the law in 1997 focusing on rescinding illegal privileges and
assuring citizens’ rights.
In 1998, China participated in United Nations’ International Covenant

on Civil and Political Rights, which guarantees the right against self-
incrimination.”
(China Daily 11/23/2000)
India
In the Indian context, clause (3) of Art. 20 of the Constitution of India
guarantees a fundamental right against self incrimination. Art. 21 grants a
further fundamental right to life and liberty and states that the liberty of a
person cannot be taken away except by a procedure laid down by the law. In
40
Maneka Gandhi’s case it was further interpreted that the procedure

envisaged by Art. 21 is a procedure which must be just, fair and equitable.
The Criminal Procedure Code contains several protections. Sub sec.

(2) of sec. 161 of the Code of Criminal Procedure, 1973 grants a right to
silence during interrogation by police. It reads as follows:
“Sec. 161(2): Such person shall be bound to answer truly all

questions relating to such case put to him by such officer, other than
questions the answers to which would have tendency to expose him to
a criminal charge or to a penalty or forfeiture”.
Sub section (3) of sec. 313 again protects this right to silence at the trial. It
reads as follows:
“313(3): The accused shall not render himself liable to punishment by

refusing to answer such questions, or by giving false answers to them”
Sub section (1) of sec. 315 contains a proviso and clause (b) of the said
proviso precludes any comment by any of the parties or the court in regard
to the failure of the accused to give evidence. It reads as follows:
“provided that-
(a)……………
(b) his failure to give evidence shall not be made the subject of any
comment by any of the parties or the court or give rise to any
41
presumption against himself or any person charged together with him

at the same trial.”
The above provision also creates a presumption against guilt.
In other words, sec. 161, 313 and 315 raise a presumption against
guilt and in favour of innocence, grant a right to silence both at the stage of
investigation and at the trial and also preclude any party or the court from
commenting upon the silence. This is quite contrary to what the Australian
law permits. Under the Australian law the Court can make a comment on
the silence but the prosecution cannot make any comment. Now the New
South Wales Law Commission has, as stated earlier, recommended
amendment of the law, to permit even the prosecution to comment on the
silence of the accused.
Our law in the Code of Criminal Procedure, 1973 is consistent with

clause (3) of Art. 20 of the Constitution and Art. 21.
The earlier history of these provisions under the Criminal Procedure

Code, 1898, is equally revealing. Durga Das Basu in his Commentary on
Art. 20 of the Constitution (see Silver Jubilee Edition Vol.D p. 46, 47) refers
to this aspect. Sec. 342A of the Code of Criminal Procedure, 1898, as
introduced in 1955 made it possible for the accused to testify on his own
behalf and also stated that “his failure to give evidence shall not be made the
subject of comment by any of the parties or the court”. However, sub
section (2) of sec. 342 of the said Code contained a provision which
contradicted the above prohibition and read as follows:
42
“Sec. 342(2): The accused shall not render himself liable to

punishment by refusing to answer questions or by giving false
answers to them; but the court and the jury (if any) may draw such
inference from such refusal or answers as it thinks fit.”
It will be seen that the underlined words in sec. 342(2) of the old Code
permitted an inference to be drawn from the silence of the accused. This
provision was not however repeated in the Code of 1973 and was dropped
obviously because of the guarantee under clause (3) of Art. 20 of the
Constitution of India which came in to force in 1950. The provision was
dropped presumably because it was contrary to the constitutional protection
against self incrimination. In fact Basu points out (ibid p.46) that the
“foregoing lacuna” in the 1898 Code, was commented upon by the author at
p. 38 of Vol.2 of the previous Ed. of this Commentary in the following
words
“To the author, it seems that it is due to oversight that the legislature
did not omit the italicised words, while inserting sec. 342A in 1955;
for, after the insertion of sec. 342A, the italicised words have, at least
become anomalous. They are inconsistent with proviso (b) of sec.
342A; for, the object of both sections 342 and 342A as already
explained is to offer an opportunity to explain anything incriminating
in the evidence against him. If, therefore, no inference may be made
from the failure of the accused to take hold of the opportunity offered
under sec. 342A by volunteering to testify on his own behalf, why
43
should such inference be permissible when the court questions him for
the same purpose?
“Apart from the above statutory consideration, there is a constitutional

implication if we take into account the observations of the dissenting
Judges in Adamson vs. California (1947) 332 US 46…..If you cannot
compel an accused to make a statement against himself, you cannot
draw any inference against him because he remains silent, since that
would obviously oblige him to speak, rather than remain silent.”
“To draw an adverse inference from the refusal to testify is indeed to

punish a person who seeks to exercise his right under Art. 20(3). Just
as no inference of guilt can be made from the fact that the accused is
invoking the protection of Art. 20(3), so no inference of guilt can be
made from the mere fact that he refuses to answer or to make a
statement”.
Basu now says (Silver Jubilee edition Vol. D p 47) that it is gratifying
to note that in view of the above comments in the earlier edition of his work,
the legislature while it introduced the 1973 Act, it omitted the words in the
later part of sec. 340(2) of the old Act of 1898. Basu states
“It is now clear, therefore, that the Court cannot draw any adverse
inference against the accused from his silence or refusal to answer
court questions, under any circumstances”.
44
The right to silence has been considered by the Supreme Court of India in a
three-Judge Bench in Nandini Satpati vs. P.L. Dani 1978(2) SCC 424 where
the Supreme Court followed the earlier English law and the judgment of the
American Supreme Court in Miranda. Krishna Iyer J observed that the
accused was entitled to keep his mouth shut and not answer any questions if
the questions were likely to expose him to guilt. This protection was
available before the trial and during the trial. The learned Judge observed as
follows:
“……whether we consider the Talmudic Law or the Magna Carta, the

Fifth Amendment, the provisions of other constitutions or Article
20(3), the driving force behind the refusal to permit forced self
incrimination is the system of torture by investigators and courts from
medieval times to modern days. Law is response to life and the
English rule of the accused’s privilege of silence may easily be traced
as a sharp reaction to the Court of Star Chamber when self-
incrimination was not regarded as wrongful. Indeed then the central
feature of the criminal proceedings, as Holdsworth noted, was the
examination of the accused.”
Summary:
A survey of the current law in various countries reveals that in USA,

Canada and India in view of the constitutional provisions against self
incrimination the Courts have required the prosecution to prove guilt beyond
reasonable doubt and there has been no encroachment whether at the stage
of interrogation or trial, into the right to silence vested in the suspect or
45
accused. It is only in UK that certain deviations have been made recently.

The UK law of 1994 has not yet been tested under the Human Rights Act,
1998. No doubt, two cases have gone before the European Court and the
said Court has laid down some conditions which must be satisfied before the
Court or jury could take into consideration the silence of the accused.
Firstly, a prima facie case as to guilt has to be made out by the prosecution.
Secondly, the suspect or the accused must have been given an opportunity to
call an attorney when he was questioned. This has led to the further
amendment in the UK law in 1999 permitting the suspect or accused to call
for an attorney’s assistance. But then fresh problems have arisen where the
accused has relied upon the lawyer’s advice to remain silent. In such cases,
the Courts are resorting to the cross-examination of the accused as well as
his lawyers. A lawyer’s wrong advice can lead to serious prejudice to the
accused and this cannot be permitted. In the light of the above
complications, criminal trials have become more complicated and the
accused is having more grounds to question a verdict of guilt. In our view, it
may not therefore be wise to introduce similar changes in our system. In
fact, the New South Wales Law Commission has clearly recommended that
provisions like sections 34, 36 and 37 which permit the Court or jury to draw
inferences from the silence of the suspect or accused, should not be
introduced into the statute in New South Wales. But, unfortunately, N.S.W.
Law Commission has recommended that the accused can be compelled to
disclose various facts relating to his defence failing which the prosecution
and the Court can make comment. In our view, this does not amount to a
fair trial and indirectly violates the right against self-incrimination. The
Australian Courts have not referred to any constitutional prohibitions.
46
On the other hand, the American and Canadian Courts have not
permitted any inroads into the right to silence. While English and European
Courts and the Australian Courts permit the jury and the Courts to take the
silence into consideration before arriving at a finding of guilt beyond
reasonable doubt,- of course, where a prima facie case is made out, and the
accused is informed of his right to an attorney - the American and Canadian
Courts prohibit silence being taken into consideration before arriving at a
finding of guilt beyond reasonable doubt. It is only after the Court comes to
a finding of guilt beyond reasonable doubt, that the accused can be asked if
he has any explanation.
It is interesting that China has introduced a regulation in some regions

which entitles an accused to remain silent. It is indeed rather surprising that
when China is introducing this principle into its laws some democracies like
UK & Australia are introducing laws deviating from the old tradition as to
right to silence.
The law in India appears to be same as in USA and Canada. In view

of the provisions of clause (3) of Art. 20 and the requirement of a fair
procedure under Art. 21, and the provisions of ICCPR to which India is a
party and taking into account the problems faced by the Courts in UK, we
are firmly of the view that it will not only be impractical to introduce the
changes which have been made in UK but any such changes will be contrary
to the constitutional protections referred to above. In fact, the changes
brought about in the Criminal Procedure Code, 1973 leaving out the certain
provisions which were there in 1898 Code, appear to have been the result of
the provisions of clause (3) of Art. 20 and Art. 21 of our Constitution.
47
We have reviewed the law in other countries as well as in India for the
purpose of examining whether any amendments are necessary in the Code of
Criminal Procedure, 1973. On a review, we find that no changes in the law
relating to silence of the accused are necessary and if made, they will be
ultra vires of Art. 20(3) and Art. 21 of the Constitution of India. We
recommend accordingly.
(Justice M. Jagannadha Rao)

Chairman
(Dr. N.M. Ghatate)

Member
9.5.2002 (Dr. T.K. Vishwanathan)

Member Secretary

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National Law Institute University

Kerwa Dam Road, Bhopal

Course Material compiled by

2. Preamble to the Constitution of India……Pages 14.

3. Significance of fundamental rights………. Pages 15-42.

4. Article 12-Critical analysis and judicial interpretation……Pages 43-59.

developments…. Pages 110-113.

7. Article 13 and pro tanto supremacy of the Constitution of India…Pages 114-119.

8. Article 14-Equality rights…..Pages 120-145.

9. Article 14-Legal aspect of equality…Pages 146-180.

10. Article 14-The promise of equality-A comparative analysis of the Constitutional

guarantee of equality in India and the USA…. Pages 181-221.

12. Article 19-Freedom of Expression…Page 263.

13. Article 19-Right to free speech in a censored democracy…. Pages 264-291.

14. Article 20 (3)-Law Commission of India-Article 20 (3) of the Constitution of India

and the right to silence…Pages 292-338.

British Constitution-Parliamentary Government, Rule of Law, Legislative procedures, single

1. The difference between Constitutional Law and Ordinary Laws.

On the completion of this course, students are expected to:

1. State and explain the Constitution and Constitutionalism.

2. Explain and discuss the supremacy of the Constitution.

3. State and explain the underlying principles of Constitutional Law.

6. Explain fundamental rights.

8. Acquire the art of legal reasoning in judgments.

10. Have acquired critical and analytical skills.

UNIT – I: Fundamentals of constitutional law

Introduction to Constitutional Law-the study of Constitutional Law-what is law of the

UNIT – II: THE evolution and SIGNIFICANCE OF FUNDAMENTAL RIGHTS TO

UNIT – IV: RIGHT TO EQUALITY

UNIT – V: RIGHT TO FUNDAMENTAL FREEDOM

ARTICLES 19 – 22 - Freedom of speech and expression-Freedom to assemble peacefully without arms

UNIT – VI: RIGHT AGAINST EXPLOITATION

UNIT – VII: RIGHT TO FREEDOM OF RELIGION

UNIT – VIII: CULTURAL AND EDUCATIONAL RIGHTS

UNIT – IX: WRIT JURISDICTIONS OF THE COURTS AND REMEDIES

UNIT – X: DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES

A short history of Fundamental Rights – Just as a written Constitution has evolved

Fundamental rights have evolved out of ‗natural rights‘

The doctrine of natural rights is itself, an offshoot of the doctrine of natural

Together with these Charters of liberties we should advert to the views of

Of this group of political thinkers, the most systematic contribution was

Though full of contradictions in his philosophy of Social contract, it was

It is striking that this concept of natural rights as binding on any political

By absolute rights of individuals, Blackstone meant –

These are to be distinguished from relative rights which are incidental to

Credit must, therefore, go to Blackstone for importing the doctrine of

Lockes‘ theory of Social contract was materially fruitful in the compact

The Bill of Rights adopted in the State constitution of Virginia in 1776

The aggression of the omnipotent British Parliament against the American

The Declaration of American Independence, drafted by Jefferson in 1776,

Though it was not a part of a written constitution, it asserted ―certain

Inspired by the American Declaration of Independence, the French

The representatives of the people of France, formed into a National

The philosophy underlying this doctrine of inalienable rights, superior to

From these premises two or three conclusions will follow:

Secondly that civil power properly considering as such is made up of the

A most sticking feature of the federal Constitution of the U.S.A. however,

remarkable difference between the characters of the inconveniences which attend

The unmistakable direction in which the Americans took a step in advance

A modern exposition of this doctrine, as understood by the American

The Due Process Clause has thus come to be treated as an expression of

Another most noticeable feature of the history of fundamental rights in the

Legislature or Government,29 by the use of the words – Congress shall make no