Unit-I: Fundamental Rights – I (Lectures-

10)
 a. Definition of State for Enforcement of Fundamental
Rights: Justifiability of Fundamental Rights, Doctrine of
Eclipse, Severability, Waiver

 b. Right to Equality (Articles14-18): Doctrine of

Reasonable Classification and the Principle of Absence of
Arbitrariness, Legitimate Expectations, Principle of
Compensatory Discrimination

 c. Fundamental Freedom (Article 19): Freedom of Speech

and Expression, Freedom of Press and Media; Expansion
by Judicial Interpretation of Article19; Reasonable
Restrictions(Article19 clause (2)to(5)
Meaning of State, Article 12 of
Indian Constitution
 The term “State” is defined under Article 12 of Part III
(Fundamental Rights) of the Constitution of India.

 It states that: In this Part, unless the context otherwise

requires, “the State” includes the Government and
Parliament of India and the Government and the
Legislature of each States and all local or other
authorities within the territory of India or under the
control of the Government of India.
 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 grounds of contravention
of some provision of the Constitution outside Part III,
e.g., where such body has a public duty to perform or
where its acts are supported by the State or public
officials.
Judiciary and Article 12
 In Ujjain Bai v. State of U.P., 1962 AIR 1621 the Supreme
Court observed that Article 12 winds up the list of
authorities falling within the definition by referring to
“other authorities” within the territory of India which
cannot, obviously, be read as ejusdem generis with either
the Government or the Legislature or Local authorities.
The word “State” is of wide amplitude and capable of
comprehending every authority created under the statute
and functioning within the territory of India.
Scope of Article 12
 When the body is financially, functionally and
administratively dominated by or under the control of
the government and such control is particular to the
body and is pervasive, then it will be “State” within
Article 12. If the control is merely regulatory, it will not
be a State.
Local Authorities within the
Territory of India
 Local authorities are under the exclusive control of the
States, by virtue of entry 5 of List II of the 7th
Schedule. That entry contains a list of some local
authorities. This expression will, therefore, include a
Municipal Committee; a Panchayat; a Port Trust;
Municipality is a “State” within the meaning of Article
12. But that does not mean that the authorities are
State Government or Central Government and there is
distinction between State and Government.
 In Union of India v. R.C. Jain, 1981 SCR (2) 854 to be
considered a “local authority”, an authority must fulfil the
following tests-
 1) Separate legal existence.
 2) Function in a defined area.
 3) Has power to raise funds.
 4) Enjoys autonomy.
 5) Entrusted by a statute with functions which are usually
entrusted to municipalities?
Other Authorities
 It refers to authorities other than those of local self-
government, who have power to make rules,
regulations, etc. having the force of law.
“Instrumentality” and “agency” are the two terms,
which to some extent overlap in their meaning. The
basic and essential distinction between an
“instrumentality or agency” of the State and “other
authorities” has to be borne in mind. An ‘Authority’
must be authority sui juris within meaning of
expression “other authorities” under Article 12.
 In the case of R.D.Shetty v/s International Airport
Authority, AIR 1978 SC 1289 the Court laid down five
tests to be considered “other authority”:
 1) Entire share capital is owned or managed by State.
 2) Enjoys monopoly status.
 3) Department of Government is transferred to
Corporation.
 4) Functional character governmental in essence.
 5) Deep and pervasive State control.
 6) Object of Authority
Right to Equality
 ARTICLE 14: EQUALITY BEFORE LAW
 “The state shall not deny to any person equality
before the law or the equal protection of the laws
within the territory of India.”… (Art. 14)

 Article 14 guarantees to every person the right to

equality before the law or the equal protection of
laws.
 In other words, all persons who are in the same
circumstances will be governed by the same set of
rules. It is a guarantee of equal treatment. An equal
law should be applied with an equal hand to all
persons who are the equals. The rule is that the like
should be treated alike and not that unlike should be
treated alike.
Equality before Law
 According to Dr. Jennings, “Equality before the law
means that among equals the law should be equal and
should be equally administered, that the like should be
treated alike. The right to sue and be sued, to
prosecute and to be prosecuted for the same kind of
action should be same for all citizens of full age and
understanding without distinctions of race, religion,
wealth, social status or political influence.
Case Laws
 In State of West Bengal v. Anwar Ali Sarkar, 1952
SCR 284 the Court rightly observed that the second
expression is the corollary of the first and it is difficult to
imagine a situation in which the violation of equal
protection of laws will not be the violation of the equality
before the law. Thus, in substance, the two expressions
mean one and the same thing.
 In Re Special Courts Bill, 1978, 1979 2 SCR
476 Chandrachud, J., observed: “The underlying principle
of the guarantee of Art. 14 was that all persons similarly
circumstanced should be treated alike both in privileges
conferred and liabilities imposed.”
Rule of Law
 Rule of law- the guarantee of equality before the law
is an aspect of what Dicey calls the rule of Law in
England. Rule of law requires that no person shall be
subjected to harsh, uncivilized or discriminatory
treatment even when the object is the securing of the
paramount exigencies of law and order.
 Prof. Dicey gave three meanings to Rule of Law, they are –
 The absence of Arbitrary Power or Supremacy of Law –
in other words, a man may be punished for a breach of law
but he can be punished for nothing else. It means the
absolute supremacy of Law as opposed to the arbitrary
power of the Government.
 Equality before the Law – it means subjection of all
classes to the ordinary law of the land administered by
ordinary law courts. This means that no one is above law
with the sole exception of the monarch who can do no
wrong.
 The Constitution is the result of the ordinary law of
the land – it means that the source of the right of
individuals is not the written Constitution but the rules as
defined and enforced by the Courts.
Article 15
 Article 15 in The Constitution Of India 1949
 15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth
 The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth
or any of them
 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 access to shops, public restaurants, hotels
and palaces of public entertainment; or
Article 16
 Article 16 in The Constitution Of India 1949
 16. Equality of opportunity in matters of public
employment
 There shall be equality of opportunity for all citizens
in matters relating to employment or appointment to
any office under the State
 No citizen shall, on grounds only of religion, race,
caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in
respect or, any employment or office under the State
Article 17
 Article 17 in The Constitution Of India 1949
 17. Abolition of Untouchability Untouchability is
abolished and its practice in any form is forbidden The
enforcement of any disability arising out of
Untouchability shall be an offence punishable in
accordance with law
Article 18
 Article 18 in The Constitution Of India 1949
 18. Abolition of titles No title, not being a military or
academic distinction, shall be conferred by the State
No citizen of India shall accept any title from any
foreign State No person who is not a citizen of India
shall, while he holds any office of profit or trust under
the State, accept without the consent of the President
any title from any foreign State No person holding any
office of profit or trust under the State shall, without
the consent of the President, accept any present,
emolument, or office of any kind from or under any
foreign State Right to Freedom
Doctrine of Severability
 The doctrine of severability means severing part of a
statute which is inconsistent with any of the
constitutional provisions and particularly the
provisions contained under the chapter of
fundamental rights in the Indian Constitution.

 The other part of the severed statute is to remain valid.

 The Supreme Court of India has considered the
doctrine of severability in various cases such as the
A.K. Gopalan’s Case.

 The apex court of India, Supreme Court has

summarized the rules relating to doctrine of
severability as follows:
 (1) The intention of the legislature Is a factor whether
the legislature enacted that law, knowing full well that
the rest of the statute is invalid - to determine whether
valid parts are separable or not.
 (2) If valid and invalid are so inextricably mixed up,
the whole law is declared valid.
 (3) If valid and invalid form part of a single scheme,
the whole law is declared invalid.
 (4) After omitting, the invalid part, if what remain is
very thin and what emerges out is something different,
then the entire law is declared invalid.
Doctrine of Eclipse
 The Doctrine of Eclipse in constitutional law stands
for over-shadowing any provision of a statute by the
fundamental rights contained in Part-III of the Indian
Constitution.
 In 1955, Supreme Court of India in the case of B.
Narain vs. the State of MP has introduced the Doctrine
of Eclipse and stated - that if any law is not consistent
with any provision of the fundamental right then such
law would be overshadowed by the fundamental right
and it will remain dormant but it will no to be dead
altogether.
 This dormant statute whole or any of its part will
become operative as a valid law when the shadow cast
by the fundamental right is removed by a subsequent
amendment.
 The Constitution of India in Article 13(1) states that all
laws enforced in India immediately before the
commencement of the constitution, in so far as they
are inconsistent with any or all fundamental rights
shall be valid to the extent of such inconsistency.
 The Supreme Court of India in its earlier decisions
had applied the doctrine of eclipse only to pre-
constitutional laws but later on in the case of the
state of Gujarat vs. Shri Ambika Mills (1974). It
stated that the doctrine can be extended to the
post constitutional laws as well.
Doctrine of Waiver
 Waiver proceeds on the basis that a man not under
legal liability is the best judge of his own interest and
if with knowledge of a right or privilege conferred on
him by the statute, contract or otherwise for his
benefit, he intentionally gives up the right or privilege,
or chooses not to exercise the right or privilege, and
that the right or privilege is conferred principally for
the interest of himself not the interest of general
public
 Can a citizen waive his fundamental right given to
him by the constitution? This was a major question
which was dealt in many cases till now. Generally the
question came up for the first time in the case of
Behram v state of Maharashtra in which justice
Venkatrama Aiyar told that the rights are to be divided
in to two broad categories, firstly Rights conferring
benefits on the individuals and secondly rights
conferring benefits on the general public.
 He was of the opinion that a law would not be a nullity
but merely unenforceable if it was repugnant with a
fundamental right in the formal category, and that
effected individual could waive such an
unconstitutionality, in which case the law would apply
to him.for example the right guaranteed under article
19(1)(f) was for the benefit of the property owners and
when a law was found to infringe article(1)(f). it was
open to any person whose right had been infringed to
waive his fundamental rights. In case of such a waiver,
the law in question could be enforced against the
individual concerned.
Freedom of Speech and
Expression
 Speech is God's gift to mankind. Through speech a
human being conveys his thoughts, sentiments and
feeling to others. Freedom of speech and expression is
thus a natural right, which a human being acquires on
birth. It is, therefore, a basic right. "Everyone has the
right to freedom of opinion and expression; the right
includes freedom to hold opinions without
interference and to seek and receive and impart
information and ideas through any media and
regardless of frontiers" proclaims the Universal
Declaration Of Human Rights (1948).
 Speech is God's gift to mankind. Through speech a human being
conveys his thoughts, sentiments and feeling to others. Freedom of
speech and expression is thus a natural right, which a human being
acquires on birth. It is, therefore, a basic right. "Everyone has the right
to freedom of opinion and expression; the right includes freedom to
hold opinions without interference and to seek and receive and impart
information and ideas through any media and regardless of frontiers"
proclaims the Universal Declaration Of Human Rights (1948).
 The people of India declared in the Preamble of the Constitution,
which they gave unto themselves their resolve to secure to all the
citizens liberty of thought and expression. This resolve is reflected in
Article 19(1) (a) which is one of the Articles found in Part III of the
Constitution, which enumerates the Fundamental Rights.
Meaning and Scope
 Article 19(1)(a) of Indian Constitution says that all
citizens have the right to freedom of speech and
expression.
 Freedom of Speech and expression means the right to
express one's own convictions and opinions freely by
words of mouth, writing, printing, pictures or any
other mode. It thus includes the expression of one's
idea through any communicable medium or visible
representation, such as gesture, signs, and the like.
 Free propagation of ideas is the necessary objective
and this may be done on the platform or through the
press. This propagation of ideas is secured by freedom
of circulation. Liberty of circulation is essential to that
freedom as the liberty of publication. Indeed, without
circulation the publication would be of little value.
The freedom of speech and expression includes liberty
to propagate not one's views only. It also includes the
right to propagate or publish the views of other people;
otherwise this freedom would not include the freedom
of press.
Purpose
 Freedom of expression has four broad special purposes
to serve:
 1) It helps an individual to attain self-fulfillment.
 2) It assists in the discovery of truth.
 3) It strengthens the capacity of an individual in
participating in decision-making.
 4) It provides a mechanism by which it would be
possible to establish a reasonable balance between
stability and social change.
 5) All members of society would be able to form their
own beliefs and communicate them freely to others
New Dimensions Of Freedom Of Speech And
Expression

 Government has no monopoly on electronic media: The

Supreme Court widened the scope and extent of the right
to freedom of speech and expression and held that the
government has no monopoly on electronic media and a
citizen has under Art. 19(1)(a) a right to telecast and
broadcast to the viewers/listeners through electronic
media television and radio any important event. The
government can impose restrictions on such a right only on
grounds specified in clause (2) of Art. 19 and not on any
other ground. A citizen has fundamental right to use the
best means of imparting and receiving communication and
as such have an access to telecasting for the purpose.
 Commercial Advertisements: The court held that
commercial speech (advertisement) is a part of the
freedom of speech and expression. The court however
made it clear that the government could regulate the
commercial advertisements, which are deceptive,
unfair, misleading and untruthful. Examined from
another angle the Court said that the public at large
has a right to receive the "Commercial Speech". Art.
19(1)(a) of the constitution not only guaranteed
freedom of speech and expression, it also protects the
right of an individual to listen, read, and receive the
said speech.
continued
 Telephone Tapping: Invasion on right to privacy :
Telephone tapping violates Art. 19(1)(a) unless it comes
within grounds of restriction under Art. 19(2). Under
the guidelines laid down by the Court, the Home
Secretary of the center and state governments can only
issue an order for telephone tapping. The order is
subject to review by a higher power review committee
and the period for telephone tapping cannot exceed
two months unless approved by the review authority.
Freedom of Press
 The fundamental right of the freedom of press implicit
in the right the freedom of speech and expression, is
essential for the political liberty and proper
functioning of democracy. The Indian Press
Commission says that "Democracy can thrive not only
under the vigilant eye of legislature, but also under the
care and guidance of public opinion and the press is
par excellence, the vehicle through which opinion can
become articulate."
Grounds of Restriction
 Clause (2) of Article 19 contains the grounds on which
restrictions on the freedom of speech and expression
can be imposed-
 1) Security of State: Under Article 19(2) reasonable
restrictions can be imposed on freedom 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 order 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.
 2) 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
similar provision is present in any other Constitution
of the world.
continued
 Public Order: This ground was added by the
Constitution (First Amendment) Act. '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.“
 Decency or morality: The 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.
 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. According to the Section 2 'Contempt of court'
may be either 'civil contempt' or 'criminal contempt.‘
 Defamation: A statement, which injures a man's
reputation, amounts to defamation. Defamation
consists in exposing a man to hatred, ridicule, or
contempt. The civil law in relating to defamation is
still uncodified in India and subject to certain
exceptions.
References
 Seervai H.M., Constitutional Law of India: A critical
commentary,349(4th ed.).

 Basu Durga Das, Commentary on Constitution of

India,635, (8th Edition 2007).

 Pandey J.N. , The Constitution of India, 48th Edn., Central

Law Agency, Pg. No. 62-63