Indian Constitution | Fundamental Rights and Fundamental Duties Download PDF
Individual Rights and Fundamental Rights
THE Constitution of England is unwritten. Hence, there is, in England, no code of Fundamental Rights as exists in the Constitution of the United States or in other written Constitutions of the world. This does not mean, however, that in England there is no recognition of those basic rights of the individual without which . democracy becomes meaningless. The object, in fact, is secured here in a different way. The foundation of individual rights in England may be said to be negative, in the sense that an individual has the right and freedom to take whatever action he likes, so long as he does not violate any rule of the ordinary law of the land. Individual liberty is secured by judicial decisions determining the rights of individuals in particular cases brought before the Courts.
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. The English Parliament being theoretically ‘omnipo¬tent’, there is no law which it cannot change. As has been already said, the individual has rights, but they are founded on the ordinary law of the land which can be changed by Parliament like other laws. So, there is no right which may be said to be ‘fundamental’ in the strict sense of the term. Another vital consequence of the supremacy of Parliament is that the English Court has no power of judicial review over legislation at all. It cannot declare any law as unconstitutional on the ground of contravention of any supposed fundamental or natural right.
Bill of Rights in the U.S.A
The fundamental difference in approach to the question of individual rights between England and the United States is that while the English were anxious to protect individual rights from the abuses of executive power, the framers of the American Constitution were apprehensive of tyranny not only from the Executive but also from the Legislature—i.e., a body of men who for the time being form the majority in the Legislature.
So, the American Bill of Rights (contained in the first Ten Amendments of the Constitution of the U.S.A.) is equally binding upon the Legislature as upon the Executive. The result has been the establishment in the United States of a ‘judicial supremacy’, as opposed to the ‘Parliamentary supremacy’ in England. The Courts in the United States are competent to declare an Act of Congress as unconstitutional on the ground of contravention of any provision of the Bill of Rights. Further, it is beyond the competence of the Legislature to modify or adjust any of the fundamental rights in view of any emergency or danger to the State. That power has been assumed by the Judiciary in the United States.
History of the demand for Fundamental Rights in India
In India, the Simon Commission and the Joint Parliamentary Committee which were responsible for the Government of India
History of the Act, 1935 had rejected the idea of enacting declara- mental Rights in bons of fundamental rights on the ground that India. “abstract declarations are useless, unless there exist the will and the means to make them effective”. But nationalist opinion, since the time of the Nehru Report,1 was definitely in favour of a Bill of Rights, because the experience gathered from the British regime was that a subservient Legislature might serve as a handmaid to the Executive in committing inroads upon individual liberty’.
Regardless of the British opinion, therefore, the makers of our Constitution adopted Fundamental Rights to safeguard individual liberty and also for ensuring (together with the Directive Principles) social, economic and political justice for every member of the community. That they have succeeded in this venture is the testimony of an ardent observer of the Indian Constitution.
“In India it appears that the Fundamental Rights have both created a new equality. . . and have helped to preserve individual liberty. . . The number of rights cases brought before High Courts and the Supreme Court attest to the value of the Rights, and the frequent use of prerogative writs testifies to their popular acceptance as well. The classic arguments against the inclusion of written rights in a Constitution have not been borne out in India. In fact, the reverse may have been the case”.
Courts have the Power to declare as void laws contravening Fundamental Rights
So the Constitution of India has embodied a number of Fundamental Rights in Part III of the Constitution, which are (subject to exceptions, to be mentioned hereafter) to act as limitations not only upon the powers of the Executive but also upon the powers of the Legislature. Though the model has been taken from the Constitution of the United States, the Indian Constitution does not go so far, and rather effects a compromise between the doctrines of Parliamentary sovereignty and judicial supremacy. On the other hand, the Parliament of India cannot be said to be sovereign in the English sense of legal omnipotence—for, the very fact that the Parliament is created and limited by a written Constitution enables our Parliament to legislate only subject to the limitations and prohibitions imposed by the Constitution, such as, the Fundamental Rights, the distribution of legislative powers, etc.. In case any of these limitations are transgressed, the Supreme Court and the High Courts are competent to declare a law as unconstitutional and void. Now there is no blanket protection available to the laws inserted in the Ninth Schedule by constitutional amendments on or after 24-04-1973 (the date of the judgment of Keshawananda Bharti v. State of Kerala) and it shall be a matter of constitutional adjudication by examining the nature and extent of infraction of fundamental rights by a statute, sought to be constitutionally protected.1A So far as the contravention of Fundamental Rights is concerned, this duty is specially enjoined upon the Courts by the Constitution [Art. 13], by way of abundant caution. Clause (2) of Art 13 says—
“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.”
To this extent our Constitution follows the American model rather than the English.
But the powers of the Judiciary vis-a-vis the Legislature are weaker in India than in the United States in two respects:
Fundamental Rights under Indian Constitution distinguished from American Bill of Rights
Firstly, while the declarations in the American Bill of Rights are absolute and the power of the State to impose restrictions upon the fundamental rights of the individual in the collective interests had to be evolved by the Judiciary—in India, this power has been expressly conferred upon the Legislatures by the Constitution itself in the case of the major fundamental rights, of course, leaving a power of judicial review in the hands of the Judiciary to determine the reasonableness of the restrictions imposed by the Legislature.
44th Amendment, 1978. The right to property
Secondly, by a somewhat hasty step, the Janata Government, headed by Morarji Desai, has taken out an important fundamental right, the right of Property, by omitting . 19(l)(f) and 31, by the 44th Amendment Act, 1978. Of course, the provision in Art. 31(1) has, by the same amendment, been transposed to a new article—Art. 300A, which is outside Part III of the Constitution and has been labelled as ‘Chapter IV’ of Part XII (which deals with ‘Finance, Property, Contracts and Suits’)—but that is not a ‘fundamental right’.
While under the Congress rule for 30 years, the ambit of the Fundamental Rights embodied in Part HI of the original Constitution had been circumscribed by multiple amendments, bit by bit, the death blow to one of the Fundamental Rights came from the Janata Government.
The net result of the foregoing amendments inflicted upon the right to property are—
(i) The right not to be deprived of one’s property save by authority of law is no longer a ‘fundamental right’. Hence, if anybody’s property is taken away by executive fiat without the authority of law or in contravention of a law, the aggrieved individual shall have no right to move the Supreme Court under Art. 32.
(ii) If a Legislature makes a law depriving a person of his property, he cannot challenge the reasonableness of die restrictions imposed by such law, invoking Art. 19(l)(f), because that provision has ceased to exist.*
(iii) Since Cl. (2) of Art. 31 has vanished, the individual’s right to property is no longer a guarantee against the Legislature in respect of any compensation for loss of such property. Article 31(2) [in the original Constitution] embodied the principle that if the State makes a compulsory acquisition or requisitioning of private property, it must (a) make a law; (b) such law must be for a public purpose; and (c) some compensation must be paid to the expropriated owner.
Of course, by the 25th Amendment of 1971, during the regime of Mrs. Gandhi, the requirement of ‘compensation’ was replaced by ‘an amount’, the adequacy of which could no longer be challenged before the Courts. Nevertheless, the Supreme Court held, the aggrieved individual might complain if the ‘amount’ so offered was illusory or amounted to ‘confiscation’. But even such an innocuous possibility has been foreclosed by the 44th Amendment.
The short argument advanced in the Statement of Objects and Reasons of the 45th Amendment Bill for deleting the fundamental right to property is that it was only being converted into a legal right. What is meant is that while Arts. 19(l)(f) and 31(2) of the original Constitution operated as limitations on the Legislature itself, the 45th Amendment Bill installs the Legislature as the guardian of the individual’s right to property, without any fetter on its goodwill and wisdom. But if the Legislature could be presumed to be so infallible and innocent, this would be a good argument for omitting all the fundamental rights from Part HI. As it has been pointed out earlier, the very justification of putting limitations on the Legislature by adopting a guarantee of Fundamental Rights is that history has proved that the group of human beings constituting, for the time being, the majority in a Legislative body, are not always infallible and that is why constitutional safeguards are necessary to permanently protect the individual from legislative tyranny.
Thirdly, by subsequent amendments, the arena of Fundamental Rights has been narrowed down by introducing certain exceptions to the operation of fundamental rights, namely, Articles 31A, 31B, 31C, 31D.6
Exceptions to Fundamental Rights
(a) Of these, Arts. 31A, 31C are exceptions to the fundamental rights enumerated in Articles 14 and 19; this means that any
law falling under the ambit of Art. 31A (e.g., a law for Rights. agrarian reform), or Art. 31C (a law for the implementation of any of the Directive Principles contained in Part IV of the Constitution), cannot be invalidated by any Court on the ground that it contravenes any of the fundamental rights guaranteed by Art. 14 (equality before law); Art. 19 (freedom of expression, assembly, etc.).(b) Art. 3IB, however, offers almost complete exception to all the fundamental rights enumerated in Part HI. If any enactment is included in the 9th Schedule, which is to be read along with Art. 31B, then such enactment shall be immune from constitutional invalidity on the ground of contravention of any of the fundamental rights. But shall be open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24-4-1973 (i.e. the date of decision in Kesavanandd’s case).(c) The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession. Therefore, it will have to be kept in mind that the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights.
Fourthly, by the 42nd Amendment Act, 1976, a countervailing factor has Fundamental been introduced, namely, the Fundamental DutiesDuties. mentioned in Art. 51 A. Though these Duties are not themselves enforceable in the Courts nor their violation, as such, punishable, nevertheless, if a Court, before which a fundamental right is sought to be enforced, has to read all parts of the Constitution, it may refuse to enforce a fundamental right at the instance of an individual who has patendy violated any of the Duties specified in Art. 51 A.8 If so, the emphasis of the original Constitution on fundamental rights has been minimised.
Fifthly, the category of ‘fundamental rights’ under our Constitution is Enumeration of exhaustively enumerated in Part III of the Constitution
. The American Constitution (9th Amendment) Rights in Part III, expressly says that the enumeration of certain rights in the Bill of Rights “shall not be construed to deny or disparage others retained by the people.” This rests on the theory of inalienable natural rights which can by no means be lost to the individual in a free society; die guarantee of some of them in the written Constitution cannot, therefore, render obsolete any right which inhered in the individual even before the Constitution, e.g., the right to engage in political activity. But there is no such unenumerated right under our Constitution.
As was observed in the early case of A.K. Gopalan v. State of Madras,9 the Legislatures under our Constitution being sovereign except insofar as their sovereignty has been limited by the Constitution either expressly or by necessary implication, the Courts cannot impose any limitation upon that sovereignty either on the theory of the ‘spirit of the Constitution’ or of that of ‘natural rights’, i.e., rights other than those which are enumerated in Part III of the Constitution.10 Any expansion of the Fundamental Rights under the Indian Constitution must, therefore, rest on judicial interpretation and the Supreme Court has gone ahead in this direction by enlarging the scope of Art. 21.
Rights following from other provisions of the Constitution
It should not be supposed, however, that there is no other justiciable Rights following right provided by our Constitution outside Part III.Limitations upon the State are imposed by other provisions the visions of the Constitution and these limitations give rise to corresponding rights to the individual to enforce them in a Court of law if the Executive or the Legislature violates any of them. Thus, Art. 265 says that “no tax shall be levied or collected except by authority of law”. This provision confers a right upon an individual not to be subjected to arbitrary taxation by the Executive, and if the Executive seeks to levy a tax without legislative sanction, the aggrieved individual may have his remedy from the Courts. Tax illegally levied must be refunded since its retention may offend article 265 of the constitution. The new provision in Art. 300A belongs to this category. Similarly, Art. 301 says that “subject to the provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free”. If the Legislature or the Executive imposes any restriction upon the freedom of trade or intercourse which is not justified by the other provisions of Part XIII of the Constitution, the individual who is affected by such restriction may challenge the action by appropriate legal proceedings.
Difference between Fundamental Rights and Rights secured by other provisions of Constitution
What, then, is the distinction between the ‘fundamental rights’ included in Part III of the Constitution and those rights arising out of die limitations contained in the other Parts which are equally justiciable? Though the rights of both these classes are equally justiciable, the constitutional remedy by way of an application direct to the Supreme Court under Art. 32, which is itself included in Part IH, as a ‘fundamental right’, is available only in the Difference between case of fundamental rights. If the right follows from some other provision of the Constitution, say, Art. 265 Rights and Rights or Art. 301, the aggrieved person may have his relief by an ordinary suit or, by an application under Art. 226 to the High Court, but an application under Art. 32 shall not lie, unless the invasion of the non¬fundamental right involves the violation of some fundamental right as well.As the word ‘fundamental’ suggests, under some Constitutions, funda¬mental rights are immune from constitutional amendment; in other words, they are conferred a special sanctity as compared with other provisions of the Constitution. But this principle has been rejected by the Indian Constitution, as it stands interpreted by amendments of the Constitution them¬selves and judicial decisions.Of course, no part of the Constitution of India can be changed by ordinary legislation unless so authorised by the Constitution itself (e.g., Art. 4); but all parts of the Constitution except the basic features can be amended by an Amendment Act passed under Art. 368, including the fundamental rights. This proposition has been established after a history of its own:
A.Until the case of Golak Nath, the Supreme Court had been holding Amendabilit that no part of our Constitution was unamendable and Parliament might, by passing a Constitution Amendment Act, in compliance with the requirements of Art. 368, amend any provision of the Constitution,including the Fundamental Rights and Art. 368 itself.
According to this earlier view,18 thus, the Courts could act as the guardian of fundamental rights only so long as they were not amended by the Parliament of India by the required majority of votes. In fact, some of the amendments of the Constitution so far made were effected with a view to superseding judicial pronouncements which had invalidated social or economic legislation on the ground of contravention of fundamental rights. Thus, the narrow interpretation of Cl. (2) of Art 19 by the Supreme Court in the cases of Ramesh Thappar v. State of Madras19 and Brij Bhushan v. State of Delhi20 was superseded by the Constitution (1st Amendment) Act, 1951, while the interpretation given to Art. 31 in the cases of State of West Bengal v. Gopal, Dwarkadas v. Sholapur Spinning Co.,22 and State of West Bengal v. Bela Banerjee,23 was superseded by the Constitution (4th Amendment) Act, 1955.
B. But the Supreme Court cried halt to the process of amending the Fundamental Rights through the amending procedure laid down in Art. 368 of the Constitution, by its much-debated decision in Golak Nath v. State of Pun¬jab.17 In this case,1′ overruling its two earlier decisions,18 the Supreme Court held that Fundamental Rights, embodied in Part IH, had been given a ‘transcendental position’ by the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under Art. 368, was competent to amend the Fundamental Rights.
C. But by the 24th Amendment Act, 1971, Arts. 13 and 368 were amended to make it clear that Fundamental Rights were amendable under the procedure laid down in Art. 368, thus overriding the majority decision of the Supreme Court in Golak Nath v. State of Punjab.The majority decision in Kesavananda Bharatfs case upheld the validity of these amendments and also overruled Golak Nath’s case, holding that it is competent for Parliament to amend Fundamental Rights under Art. 368, which does not make any exception in favour of fundamental rights; nor does Art. 13 ‘comprehend Acts amending the Constitution itself. At the same time Kesavananda’s case also laid down that there were implied limitations on the power to ‘amend’ and that power cannot be used to alter the ‘basic features’ of the Constitution.A big limitation that stands in the way of Parliament, acting by a special majority, to introduce drastic changes in the Constitution, is the judicially innovated doctrine of ‘basic features’ which can be eliminated only if a Bench larger than the ‘13Judge Bench’ in Kesavananda’s case17 be prepared to overturn the decision in that case. In the meantime, applying Kesavananda the majority of the Constitution Bench has invalidated Cls. (4) and (5) of Art. 368 as violative of the basic features of the Constitution [Minerva Mills v. Union of India, AIR 1980 SC 1789 (paras 21, 28)].The fundamental rights form the basic structure of the Constitution. Any law that abrogates or abridges such rights would be violative of the doctrine of basic structure. Article 32 being a fundamental right, it is the dutv of the court to ensure that no fundamental right is contravened or abridged by any statutory or constitutional provision.A violation of separation of powers need not rise to such a level that the apex court considers it an abrogation of the basic structure.25 It is important to note that separation of powers between three organs – the Legislature, the Executive and the Judiciary – is also nothing but a consequence of principles of equality enshrined in Art. 14 of the Constitution of India. Accordingly, breach of the separation of judicial powers, may amount to negation of equality under Art. 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers, since such breach is negation of equality under Art. 14 of the Constitution.The provisions of Part III of our Constitution which enumerate the Classification of Fundamental Rights are more elaborate than those of Fundamental any other existing written constitution relating toRights. fundamental rights, and cover a wide range of topics
Classification of Fundamental Rights
I. The Constitution itself classifies the Fundamental Rights under seven groups as follows:
(a)Right to equality.
(b) Right to particular freedoms. (c) Right against exploitation.
(d) Right to freedom of religion.
(e) Cultural and educational rights.
(f) Right to property.
(g) Right to constitutional remedies.
Right to property omitted
Of these the Right to Property has been elimi- omitted. nated by the 44th Amendment Act, so that only six
freedoms now remain, in Art. 19(1) [see under ‘44th Amendment’, ante].The rights falling under each of the six categories are shown in Table V.
II. Another classification which is obvious is from the point of view of persons to whom they are available. Thus
(a) Some of the fundamental rights are granted only to citizens—(i) Protection from discrimination on grounds only of religion, race, caste, sex or place of birth [Art. 15]; (ii) Equality of opportunity in matters of public employment [Art. 16]; (iii) Freedoms of speech, assembly, association, movement, residence and profession [Art. 19]; (iv) Cultural and educational rights of minorities [Art. 30],
(b) Some of the fundamental rights, on the other hand, are available to any person on the soil of India—citizen or foreigner—(i) Equality before the law and equal protection of the Laws [Art. 14]; (ii) Protection in respect of conviction against expost laws, double punishment and self¬incrimination [Art. 20]; (iii) Protection of life and personal liberty against action without authority of law [Art. 21]; (iv) Right against exploitation [Art. 23]; (v) Freedom of religion [Art. 25]; (vi) Freedom as to payment of taxes for the promotion of any particular religion [Art. 27]; (vii) Freedom as to attendance at religious instruction or worship in State educational institutions [Art. 28].
III. Some of the Fundamental Rights are negatively worded, as prohibitions to the State, e.g., Art. 14 says—“The State shall not deny to any person equality before the law. . .” Similar are the provisions of Arts. 15(1); 16(2); 18(1); 20, 22(1); 28(1). There are others, which positively confer some benefits upon the individual [e.g., the right to religious freedom, under Art. 25, and the cultural and educational rights, under Arts. 29(1), 30(1)].
IV. Still another classification may be made from the standpoint of the extent of limitation imposed by the different fundamental rights upon legislative power.(i) On the one hand, we have some fundamental rights, such as under Art. 21, which are addressed against the Executive but impose no limitation upon the Legislature at all. Thus, Art. 21 simply says that—“No person shall be deprived of his life or personal liberty except according to theprocedure established by law.It was early held by our Supreme Court that a competent Legislature is entitled to lay down any procedure for the deprivation of personal liberty, and that the Courts cannot interfere with such law on the ground that it is unjust, unfair or unreasonable. In this view,9 the object of Art. 21 is not to impose any limitation upon the legislative power but only to ensure that the Executive does not take away a man’s liberty except under the authority of a valid law, and in strict conformity with the procedure laid down by such law. In later cases, however, the Supreme Court has found it difficult to immunise laws made under Art. 21 from attack on the ground of ‘unreasonableness’ under a relevant clause of Art. 19(1), or Art. 14, and recent Supreme Court decisions show an increasing inclination in that direction.
(ii)To the other extreme are Fundamental Rights which are intended as absolute limitations upon the legislative power so that it is not open to the Legislature to regulate the exercise of such rights, e.g., the rights guaranteed by Arts. 15, 17, 18, 20, 24.
(iii) In between the two classes stand the rights guaranteed by Art. 19 which itself empowers the Legislature to impose reasonable restrictions upon the exercise of these rights, in the public interest. Though the individual rights guaranteed by Art. 19 are, in general, binding upon both the Executive and the Legislature, these ‘authorities’ are permitted by the Constitution to make valid exceptions to the rights within limits imposed by the Constitution. Such grounds, in brief, are security of the State, public order, public morality and the like.
All the above rights are available against the State. It is now settled that the rights which are guaranteed by Arts. 1927 and 2128 Fundamental are guaranteed against State action as distinguishedn against violation of such rights by private individuals. In case of violation of such rights by individuals, the ordinary legal remedies may be available but not the constitutional remedies.
‘State action’, in this context, must, however, be understood in a wider sense. For interpreting the words ‘State’ wherever it occurs in the Part on Fundamental Rights, a definition has been given in Art. 12 which says that, unless the context otherwise requires, ‘the State’ will include not only the Executive and Legislative organs of the Union and the States, but also local bodies (such as municipal authorities) as well as ‘other authorities’. This latter expression refers to any authority or body of persons exercising the power to issue orders, rules, bye-laws or regulations having the force of law, e.g., a Board having the power to issue statutory rules, or exercising governmental powers. Even the act of a private individual may become an act of the State if it is enforced or aided by any of the authorities just referred to.Unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution are not State within the meaning of Art. 12 of the Constitution.The Constitution (Ninety third Amendment) Act, 2005, inserting clause (5) of Art. 15 of the Constitution and the Constitution (Eighty- Sixth Amendment) Act, 2002, inserting Art. 21A of the Constitution do not alter the basic structure or framework of the Constitution and are declared constitutionally valid. The Right of Children to Free and Compulsory Education Act (or Right to Education Act), 2009 is not ultra vires Art. 19(1)(g) of the Constitution. However, the Right of Children to Free and Compulsory Education Act, 2009 insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Art. 30 of the Constitution, is ultra rires the Constitution.It should be noted, however, that there are certain rights included in Part III which are available not only against the State but also against private individuals, e.g., Art. 15(2) [equality in regard to access to and use of places of public resort]; Art 17 [prohibition of untouchability]; Art. 18(3)-(4) [prohibition of acceptance of foreign title]; Art. 23 [prohibition of traffic in human beings]; Art. 24 [prohibition of employment of children in hazar¬dous employment]. But these provisions in Part III are not self-executory, that is to say, these articles are not direcdy enforceable; they would be indirectly enforceable; only if some law is made to give effect to them, and such law is violated. It follows that the classification of fundamental rights into executory and self-executory is another possible mode of classification.We may now proceed to a survey of the various fundamental rights, in particular.Article 14 of the Constitution provides—“The State shall not deny to any person equality before the law or the equalprotection of the laws within the territory of India.”
Art 14: Equality before the Law and Equal Protection of the Laws
Prima facie, the expression ‘equality before the law’ and ‘equal protection of the laws’ may seem to be identical, but, in fact, they before ‘ the Law mean different things. While equality before the law is a and Equal Protec- somewhat negative concept implying the absence of any tion of the Laws. special privilege by reason of birth, creed or the like, in favour of any individual and the equal subjection of all classes to the ordinary law—equal protection of the laws is a more positive concept, implying the right to equality of treatment in equal circumstances. It is well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the State to commit the same irregularity or illegality in their favour. If the method of allocation (of Coal Blocks by the Government) violates Art. 14, the consequence of such illegal allocation must follow. The Supreme Court declared allotment of coal blocks by the Government since 1993 to 2011 as invalid, as the allotments were made i) without any objective criteria, ii) without application of mind, iii) without following guidelines or desired recommendations of Ministries or State Govememnt concerned, iv) without assessment of comparative merit, and v) without assessment of applicant’s requirements vis-a-vis capacity of block to be allotted. Natural resources constitute public property/national asset, and while distributing them, the State is bound to act in consonance with the principles of equality and public trust, and ensure that no action is taken which may be detrimental to public interest The grant of licences bundled with spectrum, is ex-facie arbitrarily illegal and violative of Art. 14 of the Constitution.The concept of equality and equal protection of laws in its proper spectrum encompasses social and economic justice in a political democracy. The principle of ‘equality’ is the essence of democracy and accordingly a basic feature of Constitution
Equality before Law
Equality before the law, as a student of English Constitutional law knows, is the second corollary from Dicey’s concept of the Equality before Rule of Law. Equality before law is corelative to the” concept of Rule of Law for all round evaluation of healthy social order. The doctrine of equality before law is a necessary corollary to the concept of the rule of law. It is a declaration of equality of all persons within the territory of India, implying thereby the absence of any privilege in favour of any individual. It means that no man is above the law of the land and that every person, whatever be his rank or status, is subject to the ordinary law and amenable to the jurisdiction of the ordinary tribunals. Against, every citizen from the Prime Minister down to the humbles peasant, is under the same responsibility for every act done by him without awful justification and in this respect, there is no distinction between officials and private citizens. It follows that the position will be the same in India. But even in England, certain exceptions are recognised to the above rule of equality in the public interests.
The concept of equality before law does not involve the idea of absolute equality amongst all, which may be a physical impossibility. Art. 14 guarantees the similarity of treatment and not identical treatment Art 14 does not require that the legislative classification should be scientifically or logically perfect39 A person would be treated unequally only if that person was treated worse than others, and those others must be those who are “similarly situated” to the complainant. Classification for the purpose of legislation cannot be done with mathematical precision. The legislature enjoys considerable latitude while exercising its wisdom taking into consideration myriad circumstances, enriched by its experience and strengthened by people’s will. So long as the classification can withstand the test of Art 14, it cannot be questioned why one subject was included and the other left out and why one was given more benefit than the other. The concept of equality permits rational or discriminating discrimination. Conferment of special benefits or protection or rights to a particular group of citizens for rational reasons is envisaged under Art 14 and is implicit in the concept of equality. The right to equality under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority school.The exceptions allowed by the Indian Constitution are—
(1) The President or the Governor 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.
(2) No criminal proceeding whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.
(3) No civil proceeding in which relief is claimed against the President or the Governor of a State shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President or Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description any place of residence of the party by whom such proceedings are to be instituted and the relief which he claims [Art. 361].The above immunities, however, shall not bar—(i) Impeachment proceedings against the President, (ii) Suits or other appropriate proceedings against the Government of India or the Government of a State.Besides the above constitutional exceptions, there will, of course, remain the exceptions acknowledged by the commity of nations in every civilized country, e.g., in favour of foreign Sovereigns and ambassadors.
Equal Protection of the Laws
Equal protection of the laws, on the other hand, would mean “that among equals, the law should be equal and equally adminision Equal Protection , that likes should be treated alike. . .” Equal of the Laws. protection requires affirmative action by the State towards unequals by providing facilities and opportunities. The “substantive equality” and “distributive justice” are at the heart of understanding of guarantee of “equal protection before the law”. The State can treat unequals differentky with the objective of creating a level playing field in the social economic and political spheres. In order words, it means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by the laws. Art. 14 proceeds on the premise that equality of treatment is required to be given to persons who are equally circumstanced. Implicit in the concept of equality is the concept that the persons who are in fact unequally circumstanced, cannot be treated on a par. However, unequals cannot be clubbed. None 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. Thus, it does not mean that every person shall be taxed equally, but that persons under the same character should be taxed by the same standard. What Article 14 prohibits is “class legislation” and not “classification for purpose of legislation”. The legislature can classify persons for legislative purposes so as to bring them under a well-defined class. A classification would be justified unless it is patendy arbitrary. If there is equality and uniformity in each group, the law would not become though due to some fortuitous circumstances some included in a class get an advantage over others, but they should not be singled out for special treatment.The classification should not be arbitrary; it should be reasonable and be based on qualities and characteristics that have relation to the object of legislation.
But if there is any reasonable basis for classification, the Legislature would be entitled to make a different treatment. The legislature is competent to exercise its discretion and make classification. The reasonable classification must be found on an intelligible differentiaon which distinguishes persons or things that are grouped together from those that are left out of the group and the differentiaon has a rational nexus to the object sought to be achieved by the legislation in question. It is for the legislature to identify the class of the people to be given protection and on what basis such protection was to be given. The Court cannot interfere. State has wide discretion in respect of classification of objects, persons and things for the purposes of taxation.The Legislature can devise classes for the purpose of taxing not taxing, exempting or not exempting, granting incentives and prescribing rate of tax, benefits or concessions. Thus, it may (i) exempt certain classes of property from taxation at all, such as charities, libraries and the like; (ii) impose different specific taxes upon different trades and professions; (iii) tax real and personal property in different manner and so on.
The guarantee of ‘equal protection’, thus, is a guarantee of equal treatment of persons in ‘equal circumstances’, permitting differentiation in different circumstances. In other words—
The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstance in the same position as the varying needs of different classes of persons often require separate treatment.The principle does not take away from the State the power of classifying persons for legitimate purposes.“A Legislature 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.”In order to be ‘reasonable’, a classification must not be arbitrary, but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. The reasonableness of a provision depends upon the circumstances obtaining at a particular time and the urgency of the evil sought to be controlled. The possibility of the power being abused is no ground for declaring a provision violative of Art. 14. In order to pass the test, two conditions must be fulfilled, namely, that (1) the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.It is not possible to exhaust the circumstances or criteria which may accord a reasonable basis for classification in all cases. It depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the persons or things coming Under the purview of the enactment. Thus—(i) The basis of classification may be geographical,(ii) The classification may be according to difference in time.(iii) The classification may be based on the difference in the nature of the trade, calling or occupation, which is sought to be regulated by the legislation. Similarly, higher educational qualification is a permissible basis of classification for promotion61 as it has nexus with higher efficiency on the promotional post.2 A case of over classification shall be discriminatory and invalid as it would violate the provisions of Art. 14 of the Constitution. Thus, it has been held that—
(a) In offences relating to women, e.g., adultery, women in India may be placed in a more favourable position, having regard to their social status and need for protection.
(b) In a law of prohibition, it would not be unconstitutional to differentiate between civil and military personnel, or between foreign visitors and Indian citizens—for they are not similarly circumstanced from the standpoint of need for prohibition of consumption of liquor.
(c) Exemption to the candidate who stood first in the Forest Rangers College from selection as Assistant Conservator by the Public Service Commission, it being based on reasonable classification, is not ultra vires Art. 14.
The guarantee of equal protection applies against substantive as well as procedural laws. The decision making process should be transparent, fair and open. The procedure for distribution of State largesses must be trans¬parent, just, fair and non-arbitrary. Non-transparency promotes nepotism and arbitrariness. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Govt, has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Hence the discretion vested by a statute is to be exercised fairly and judicially and not arbitrarily but subject to the requirements of law. In the absence of rules, the action of the government is required to be fair and reasonable. From the standpoint of die latter, it means that-all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence, without discrimination. The discrimination presupposes, classification of similarly situated persons into different groups without any reasonable basis, for extending dissimilar benefits or treatment.
Of course, if the differences are of a minor or unsubstantial character, which have not prejudiced the interests of the person or persons affected, there would not be a denial of equal protection.Again, a procedure different from that laid down by the ordinary law can be prescribed for a particular class of persons if the discrimination is based upon a reasonable classification having regard to the object which the legislation has in view and the policy underlying it. Thus, in a law which provides for the extemment of undesirable persons who are likely to jeopardize the peace of the locality, it is not an unreasonable discrimination to provide that a suspected person shall have no right to cross-examine the witnesses who depose against him, for the very object of the legislation which is an extraordinary one would be defeated if such a right were given to the suspected person. In the Reference on the Special Courts Bill, 1978,76 the Supreme Court has held that the setting up of a Special Court for the expeditious trial of offences committed during the Emergency period [from 25-6-1975 to 27-3-1977] by high public officials, in view of the congestion of work in the ordinary Criminal Courts and in view of the need for a speedy termination of such prosecutions in the interests of the functioning of democracy under the Constitution of India, is a reasonable classification. But to include in the Bill any offence committed during any period prior to t¬ Proclamation of Emergency in June, 1975, was unconstitutional inasmuch as such classification has no reasonable nexus with the object of the Bill. The provision under Article 14 of the constitution would be violated if there is arbitrary discrimination among the educational institutions similarly situated. Any procedure which comes in the way of a party in getting a fair trial would be violative of Art. 14.78 Art. 14 of the Constitution should not be stretched too far, otherwise it will make the functioning of the administration impossible.
The guarantee of equal protection includes absence of any arbitrary dis-crimination by the laws themselves or in the matter of their administration. Thus, even where a statute itself is not discriminatory, but the public official entrusted with the duty of carrying it into operation applies it against an individual, not for the purpose of the Act but intentionally for the purpose of injuring him, the latter may have that executive act annulled by the Court on the ground of contravention of the guarantee of equal protection. Of course, it is for the aggrieved individual to establish beyond doubt that the law was applied against him by the public authority “’with an evil eye and an unequal hands”. Wide discretionary power conferred by a statute on any authority must be exercised reasonably in furtherance of public policy and for the public good and the public cause. The authority must record reasons for the said exercise of power even if the statute does not expressly enjoin upon the authority to do so. The action of “State” must satisfy the principal requirements of Art. 14 viz. treating persons similarly situated equally and grant of equal protection to them. Reasonableness and fairness is the heart and soul of Art. 14.81 In short, Art. 14 hits ‘arbitrariness’ of State action in any form.
An act which is discriminatory is liable to be labelled as arbitrary. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is one of them. Application of mind is best demonstrated by disclosure of mind by the authority making the order and disclosure is best done by recording the reasons that led die authority to pass the order.The court will not interfere in the policy decisions of the Govt, unless the government-action is arbitrary or invidiously discriminatory. The Government policy is not subject to judicial review unless it is demonstrably arbitrary, capricious, irrational, discriminatory or violative of constitutional or statutory provisions.Two wrongs do not make a right. A party cannot claim that, since something wrong has been done; direction should be given to do another wrong. It would not be setting a wrong right but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment presupposes the existence of similar legal foothold and does not countenance repetition of a wrong action to bring forth wrongs on a par.
It is the duty of State to allay fears of citizens regarding discrimination and arbitrariness.88 However, protective discrimination in favour of SCs and STs is a part of constitutional scheme of social and economic justice to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person. There are two dimensions of Art. 14 in its application to a legislation and rendering the legislation invalid, now well-recognised, which are (i) discrimination, based on an impermissible or invalid classification and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the Executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders – if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution.
Public Function and Corruption in Sports Bodies
In Board of Control for Cricket in India v. Netaji Cricket Club and Ors., Public Function the Supreme Court while considering the role and the in nature of functions being discharged by the BCCI, po s o les held that the Board’s control over the sport of cricket was deep and’ pervasive and that it exercised enormous public functions, which made it obligatory for the Board to follow the doctrine of ‘fairness and good faith’. The BCCI is not ‘State’ within the meaning of Article 12, as die Board was not created by any statute, nor a part of the share capital held by the Government. The “nature of duties and functions” which the BCCI performs viz. it regulates and controls the game to the exclusion of all others, it formulates rules, regulations norms and standards covering all aspect of the game, it enjoys the power of choosing the members of the national team and the umpires, it exercises the power of disqualifying players which may at times put an end to the sporting career of a person, it spends crores of rupees on building and maintaining infrastructure like stadia, running of cricket academies and Supporting State Associations, it frames pension schemes and incurs expenditure on coaches, trainers etc., it sells broadcast and telecast rights and collects admission fee to venues where the matches are played etc. all these activities are undertaken with the tacit concurrence of the State Government and the Government of India who are not only fully aware but supportive of the activities of the Board. The State has not chosen to bring any law or taken any other step that would either deprive or dilute the Board’s monopoly in the field of cricket. On the contrary, the Government of India have allowed the Board to select the national team which is then recognized by all concerned and applauded by the entire nation including at times by the highest of the dignitaries when they win tournaments and bring laurels home. Those distinguishing themselves in the international arena are conferred highest civilian awards like the Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the Government. Any organization or entity that has such pervasive control over the game and its affairs and such powers as can make dreams end up in smoke or come true cannot be said to be undertaking any private activity. The functions of the Board are clearly public functions, and die entity discharging the same is answerable on the standards generally applicable to judicial review of State action. Therefore BCCI may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.
Relation between Arts. 14-16
As the Supreme Court has observed,91 Articles 14¬16, taken together, enshrine the principle of equality and absence of discrimination.While the principle is generally stated in Article 14, which extends to all persons—citizens or aliens, Articles 15 and 16 deal with particular aspects of that equality. Thus,(a) Art. 15 is available to citizens only and it prohibits discrimination against any citizen in any matter at the disposal of the State on any of the specified grounds, namely, religion, race, caste, sex or place of.birth.(b) Art. 16 is also confined to citizens, but it is restricted to one aspect of public discrimination, namely, employment under the State.
In matters not coming under Arts. 15 and 16, if there is any discrimination, the validity of that can be challenged under the general provision in Art. 14.
As just stated, a particular aspect of the equality guaranteed by Art. 14 is the prohibition against discrimination contained in Art. 15 of the Constitution which rims thus:“(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.(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;
(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 general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State 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. –
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or die Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”
It will be seen that the scope of this Article is very wide. While the prohibition in Cl. (1) is levelled against State action, the prohibition in Cl. (2) is levelled against individuals as well.Clause (1) says that any act of the State, whether political, civil or other¬wise, shall not discriminate as between citizens on grounds only of religion, race, caste, sex, place of birth or any of them. The plain meaning of this prohibition is that no person of a particular religion, caste, etc., shall be treated unfavourably by the State when compared with persons of any other religion or caste merely on trie ground that he belongs to the particular religion or caste, etc. The significance of the word ‘only’ is that if there is any other ground or consideration for the differential treatment besides those prohibited by this Article, the discrimination will not be unconstitutional.54 Thus, discrimination in favour of a particular sex will be permissible if the classification is the result of other considerations besides the fact that the person belongs to that sex, e.g., physical or intellectual fitness for some work. For instance, women may be considered to be better fitted for the job of a nurse while they may not be considered eligible for employment in heavy industries like a steel factory. Such discrimination, being based on a ground other than sex, would not be considered to be unconstitutional. Discrimination in favour of men on the ground of sex alone is not permissible under Article 15(1) of the Constitution but the discrimination in favour of women is permissible in view of Cl. 3 of Art. 15 of the Constitution.
But if a person is sought to be discriminated against simply because he belongs to a particular community, race or sex, he can get the State action annulled through a Court. While racial discrimination still persists as a malignant growth upon Western society, it speaks volumes for Indian achievement that a possible victim of racial discrimination, in India, can obtain relief direct from the highest Court of the land, by means of a petition for an appropriate writ, and, yet, no such complaint has so far come before the Courts.
As already stated, in regard to the public places specified in Cl. (2), the protection is available even against discriminatory acts by private individuals. Clause (2) provides that so far as places of public entertainment are concerned, no person shall be subjected to discrimination on the grounds only of religion, race, caste, sex, place of birth or any of them, whether such discrimination is the result of an act of the State or of any other individual. Even wells, tanks, bathing ghats, roads, and places of public resort which are owned by private individuals are subject to this prohibition provided they are maintained wholly or partly out of State funds or they have been dedicated to the use of the general public.
The above prohibitions against discrimination, however, would not preclude the State from—
(a) making special provision for women and children;
(b) making special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
These exceptional classes of people require special protection and hence any legislation which is necessary for the making of special provisions for persons of these classes, would not be held to be unconstitutional. Thus, it has been held that s. 497 of the Indian Penal Code, which says that in an offence of adultery though the man is punishable for adultery, the woman is not punishable as an abettor, is not unconstitutional, because such immunity is necessary for the protection of women in view of their existing position in Indian society.
Similarly, though discrimination on the ground of caste only is prohi¬bited by Cl. (1) of the Article, it would be permissible under Cl. (4) for the State to reserve seats for the members of the backward classes or of the Scheduled Castes or Tribes or to grant them fee concessions, in public educational institutions.93 Art. 15(4) of the Constitution does not make any mandatory provision for reservation and the power to make reservation under this article is discretionary and no writ can be issued to effect reservation.94 Art. 15(4) envisages the policy of compensatory or protective discrimination but it should be reasonable and consistent with the ultimate public interest i.e., national interest and the interest of community or society as a whole but the provision cannot be justifiably invoked in granting remission to the convicted persons belonging to the scheduled castes and scheduled tribes as it would not be a measure for their ‘advancement’. However, the benefit obtained was permitted to be retained.96 It was held that an SC/ST candidate selected for admission to a course on the basis of merit as a general candidate should not be treated as a reserved candidate and reservation for admission to the specialities super-specialities in post-graduate and doctoral course in medicine is permissible.
(5) was inserted by the Constitution (Ninety-third Amendment) Act, 2005 with effect from 20.1.2006. It empowers the State to make special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes regarding their admission to educational institutions including private ones whether aided or unaided by the State, excepting the minority institutions. The placement of Cl. 5 of Art. 15 of the Constitution in the equality code is of great significance. What it does is that it enlarges as opposed to truncating, an essential and indeed a primordial feature of the equality code.” Article 15(5) inserted by the Constitution (Ninety-third Amendment) Act, 2005 is valid to the extent that it permits reservation for socially and educationally backward classes (SEBCs) in state or state aided educational institutions subject to the exclusion of the “creamy layer” from OBCs. Exclusion of minority educational institutions from the purview of Article 15(5) held to be valid. However there is difference of opinion with regard to question of validity of inclusion of private unaided institutions within the purview of Article 15(5).”
The expression “matters relating to employment or appointment” contained in Art. 16(1) includes all matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form paid of the terms and conditions of such employment.100 The principle of merit-cum-seniority puts greater emphasis on merit and ability and where the promotion is governed by this principle seniority plays a less significant role. However, seniority is to be given weightage when merit and ability, more or less are equal among the candidates who are to be promoted.The final seniority list once published cannot be disturbed at the behest of person who chose not to challenge it for years. Its sanctity must be maintained unless there are very compelling reasons to do so in order to do substantial justice.102 Determination of seniority is a vital aspect in the service career of an employee. It must be based on some principles which are just and fair. This is the mandate of Art. 16 of the Constitution.
The true import of equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities and opportunity of excellence in each cadre/ grade104 as equality of opportunity means equality as between the members of the same class of employees and not between that of separate independent classes. All persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean the persons similarly situated should be treated differently.106 When regular vacancies in posts are to be filled up, a regular process of recruitment or appointment has to be resorted to as per the constitutional scheme, and cannot be done in a haphazard manner based on patronage or other considerations. Hence, appointment / recruitment of temporary, contractual, casual, daily-wage or employment the constitutional scheme cannot be regularised. Such appointees cannot claim to be made permanent. An appointment is always to a post but not to the cadre/service and is also not made in accordance with provisions contained in the recruitment rules for regular appointment. An appointment is not entided to family pension only because services of employee continued. The continuation of employee would not mean that thereby this status has been changed. An employee does not hold status of Government servants.109 Like other employers, the government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. But this can be done on one condition that all the applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary.
A person cannot be excluded from a State service merely because he is a Brahmin, even though this result is reached by reason of a distribution of posts amongst communities according to a ratio or quota. Government jobs or service cannot be denied to the persons suffering from AIDS.112 This equality is to be observed by the State not only in the matter of appointments to the public services, but also in the matter of any other public employment, where the relationship of master and servant exists between the State and the employee. It bars discrimination not only in the matter of initial appointment but also of promotion and termination of the service itself as “employment” includes promotion.This right is a safeguard not only against communal discrimination, but also against local discrimination or even against discrimination against the weaker sex.
The right to be considered for promotion by the Departmental Promotion Committee is a fundamental right guaranteed under Art. 16, provided a person is eligible and is in the zone of consideration; but the “consideration” must be “fair” according to established principles governing service jurisprudence.The only exceptions to the above rule of equality are—
(a) Residence within the State may be laid down by Parliament as a condition for particular classes of employment of appointment under any State or other local authority [Art. 16(3)].By virtue of this power, Parliament enacted the Public Employment (Requirement as to Residence) Act, 1957, empowering the Government of India to prescribe residence as condition for employment in certain posts and services in the State of Andhra Pradesh and in the Union Territories of Himachal Pradesh, Manipur and Tripura. This Act having expired in 1974, there is no provision to prescribe residence as a condition for public employment, except that for Andhra Pradesh special provisions have been made by inserting a new Art. 37ID in the Constitution itself.
(b) The State may reserve any post or appointment in favour of any backward class of citizens who, in the opinion of the State,’are not adequately represented in the services under that State [Art. 16(4)]. This is to provide socio-economic equality to the disadvantaged. The expression “backward class of citizens” contained in Art. 16(4) would take Scheduled Castes and Scheduled Tribes within its purview.
(c) Offices connected with a religious or denominated institution may be reserved for members professing the particular religion or belonging to the particular denomination to which the institution relates [Art. 16(5)].
(d) The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the matter of appointment to services and posts under the Union and the States, as far as may be consistent with the maintenance of efficiency of the administration [Art. 335] but the provisn to Art. 335 providing for giving relaxation in qualifying marks in any examination or lowering the standard of evaluation in favour of the members of the SC & ST hits the consideration of maintenance of efficiency in administration and has done away with the emphasis on it laid down by the Apex Court in some cases.121 The Supreme Court has held that while Art. 16(4) is apparently without any limitation upon the power of reservation conferred by it, it has to be read together with Art. 335 which enjoins that in taking into consideration the claims of the members of the Scheduled Castes and Scheduled Tribes in the making of appointments in connection with the affairs of the Union or a State, the policy of the State should be consistent with “the maintenance of efficiency of administration”.100 The result is that—
“There can be no doubt that the Constitution-makers assumed. . .that while making adequate reservation under article 16(4) care would be taken not to provide for unreasonable, excessive or extravagant reservation. . .Therefore, like the special provision improperly made under article 15(4), reservation made under article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution.”
However, the Constitution (Eighty-second Amendment) Act, 2000 inserted a proviso to Art. 335 almost closing the door for consideration of maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or of a State inasmuch as the proviso empowered the State to relax the qualifying marks in any examination or lower the standards of evaluation, for reservation in matters of promotions of the members of the SC/ST to any classes of services or posts in connection with the affairs of the Union or a State.
The concession relating to reservation would be applicable only when a Scheduled Caste or Scheduled Tribe candidate came within the number of available vacancies.
It is to be noted carefully that the prohibition against discrimination in the matter of public employment is attracted where the discrimination is based only on any of the grounds enumerated, namely, religion, race, caste, sex, descent, place of birth or residence. It does not prevent the State, like other employers, to pick and choose from a number of candidates, either for appointment or for promotion, on grounds of efficiency, discipline and the like. It is also to be noted that though reservation in favour of backward classes is permissible under Cl. (4) of Art. 16, no such reservation is possible in favour of women; nor is any other discrimination in favour of women possible, e.g., relaxation of rules of recruitment or standard of qualification or the like. The Courts and tribunals can neither prescribe the qualification nor upon the power of the concerned authority so long as the qualification prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution Statute and Rules.The Court cannot interfere with the methods of reservation unless there is some clear illegality.
For the furtherance of social equality, the Constitution provides for the abolition of the evil of ‘untouchability’ (see Art. 17, post) and the prohibition of conferring titles by the State.
A ninejudge Bench of the Supreme Court has in Indra Sawhney’s xi, case(popularly known as the Mandal Commission missioncase.) laid down the following important points which summarise the law on the issue of reservations in Government employment. [For further discussion, see Author’s Shorter Constitution, 14th Ed., 2008 under Art. 16(4)].
1. Article 16(4) is exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment.
2. Backward classes of citizens is not defined in the Constitution. There is an integral connection between caste, occupation, poverty and social backwardness. In the Indian context, lower castes are treated as backwards. A caste may by itself constitute a class.
3. The backward classes can be identified in Hindu society with reference to castes along with other criteria such as traditional occupation, poverty, place of residence, lack of education etc., and in communities where caste is not recognised the rest of the criteria would apply.
4. The backwardness contemplated by Art. 16(4) is mainly social. It need not be both social and educational.
5. “Means-test” signifies imposition of an income limit for the purpose of excluding persons from the backward classes. Those whose income is above that limit are referred to as the ‘creamy layer’. Income or the extent of property can be taken as a measure of social advancement and on that basis the ‘creamy layer’ of a given caste can be excluded.
6. For getting reservations a class must be backward and should not be adequately represented in the services under the State.
7. The reservations contemplated in Art. 16(4) should not exceed 50%.
8. The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, service or cadre etc.
9. Reservation of posts under Art. 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. If a reservation in promotion exists it shall continue for 5 years (16 Nov. 1997). By the Constitution (77th Amendment) Act, 1995, this limitation of time has been removed by inserting Cl. (4A) to enable it to continue reservation in promotion for the SC and S.T.
10. Identification of backward classes is subject to judicial review.
Sub-division of Other Backward Classes contemplated in the Mandal Commission case is not applicable to Scheduled Castes and Scheduled Tribes. Hence sub-classification or subgrouping of SC & ST is not permitted.
Art. 16(4) is an enabling provision and confers a discretionary power on the State to make reservation, if required, but it confers no constitutional right upon the members of the backward classes to claim reservation.
The vacancies reserved could be ‘carried forward’ for a maximum period of three years if candidates from backward classes were not available afterwhich they were to lapse. By inserting Cl. (4B) in Art. 16 by the Constitution (81st Amendment) Act, 2000, the State has been empowered to consider such unfilled vacancies as a separate class to be filled up in any succeeding year or years, however the Hon’ble Supreme Court put certain limitations on powers available to the state under Article 16(4-A) & (4-B) and the same are (i) the ceiling limit of a maximum of 50% reservation (quantitative limitation), (ii) the principle of creamy layer (qualitative exclusion), (iii) the compelling reasons for exercise of power under, namely backwardness and inadequacy of representation, and (iv) the overall administrative efficiency as required by Article 335.
Relative scope of Arts. 14, 15 and 16
Art. 14 lays down the rule of equality in the widest term, while Art. 15 Relative sco e of Pro^its discrimination on the grounds specified Arts. *14* lfTand 16. dierein but covering the entire range of State activities.
Art. 16 embodies the same rule but is narrower in scope since it is confined to State activities relating to office or employment under the State. Both Arts. 15 and 16 operate subject to exceptions therein.
Art. 17 : Abolition of Untouchability
Article 17 of the Constitution says—“ ‘Untouchability’ is abolished and its practice in any form forbidden. The enforcement of any disability arising out of. ‘unt0uchability’ shall be an offence punishable in with Law”
The vision of the founding fathers of the Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Art. 17. It is absolutely imperative to abolish the caste system as expeditiously as possible for the smooth functioning of rule of law and democracy in our country. Parliament is authorised to make a law prescribing the punishment for this offence [Art. 35], and, in exercise of this power, Parliament has enacted the Untouchability (Offences) Act, 1955, which has been amended and renamed (in 1976) as the Protection of Civil Rights Act, 1955.
The word ‘untouchability’ has not, however, been defined either in the Constitution or in the above Act. It has been assumed that the word has a well-known connotation—primarily referring to any social practice which looks down upon certain depressed classes solely on account of their birth and disables them from having any kind of intercourse with people belonging to the so-called higher classes or castes. The Act declares certain acts as offences, when done on the ground of ‘untouchability’, and prescribes the punishments therefor, e.g.
(a) refusing admission to any person to public institutions, such as hospital, dispensary, educational institution;
(b) preventing any person from worshipping or offering prayers in any place of public worship;
(c) subjecting any person to any disability with regard to access to any shop, public restaurant, hotel or public entertainment or with regard to the use of any reservoir, tap or other source of water, road, cremation ground or any other place where ‘services are rendered to the public’.
The sweep of the Act has been enlarged in 1976, by including within the offence of practising untouchability, the following—
(i) insulting a member of a Scheduled Caste on the ground of untouchability;
(ii) preaching untouchability, direcdy or indirecdy;
(iii) justifying untouchability on historical, phdosophical or religious grounds or on the ground of tradition of the caste system.
The penal sanction has been enhanced by providing that (a) in the case of subsequent convictions, the punishment may range from one to two years’ imprisonment; (b) a person convicted of the offence of ‘untouchability’ shall be disqualified for election to the Union or a State Legislature.
If a member of a Scheduled Caste is subjected to any such disability or discrimination, the Court shall presume, unless the contrary is proved, that such act was committed on the ground of ‘untouchability’. In other words, in such cases, there will be a statutory presumption of an offence having been committed under this Act.
The prohibition of untouchability in the Constitution has thus been given a realistic and effective shape by this Act.
‘Title’ is something that hangs to one’s name, as an appendage. During . . the British rule, there was a complaint from the of nationalists that the power to confer tides was being ’ abused by the Government for imperialistic purposes and for corrupting public life. The Constitution seeks to prevent such abuse by prohibiting the State from conferring any tide at all.
It is to be noted that—(a) The ban operates only against the State. It does not prevent other Public institutions, such as Universities, to confer tides or honours by way of on ouring their leaders or men of merit.
(b) The State is not debarred from awarding military or academic distinctions, even though they may be used as titles.1
(c) The State is not prevented from conferring any distinction or award, say, for social service, which cannot be used as a title, that is, as an appendage to one’s name. Thus, the award of Bharat Ratna or Padma Vibhushan cannot be used by the recipient as a title and does not, accordingly, come within the constitutional prohibition.
In 1954, the Government of India introduced decorations (in the form of medals) of four categories, namely, Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri. Whde the Bharat Ratna was to be awarded for “exceptional services towards the advancement of Art, Literature and Science, and in recognition of public service of the higher order”, the others would be awarded for “distinguished public service in any field, including service rendered by Government servants”, in order of the degree of the merit of their service.
Though the foregoing awards were mere decorations and not intended to be used as appendage to the names of the persons to whom they are awarded, there was a vehement criticism from some quarters that the introduction of these awards violated Art. 18. The critics pointed out that even though they may not be used as titles, the decorations tend to make distinc¬tions according to rank, contrary to the Preamble which promises ‘equality of status’. The critics gained strength on this point from the fact that the decorations are divided into several classes, superior and inferior, and that holders of the Bharat Ratna have been assigned a place in the ‘Warrant of Precedence’ (9th place, i.e., just below the Cabinet Ministers of the Union), which is usually meant for indicating the rank of the different dignitaries and high officials of the State, in the interests of discipline in the administration. The result was the creation of a rank of persons on the basis of Government recognition, in the same way as the conferment of nobility would have done.
Another criticism, which seems to be legitimate, is that there is no sanction, either in the Constitution or in any existing law, against a recipient of any such decoration appending it to his name and, thus, using it as a title. Any such use is obviously inconsistent with the prohibition contained in Art. 18(1) but it is not made an offence either by the Constitution or by any law. The apprehensions of the critics on this point were unfortunately justified by the fact that in describing the author on the Title of an issue of the Hamlyn Lectures, the decoration ‘Padma Vibhushan’ was, in fact, appended as a title.
The protest raised by Acharya Kripalani against the award of such deco-rations, which went unheeded earlier was honoured by the Janata regime (1977)—by putting a stop to the practice of awarding Bharat Ratna, etc. by the Government. But it was restored by Mrs. Gandhi after her come-back.
In this context, it is to be noted that Art. 18(1) itself makes an exception in favour of granting by the State of any military^ or academic distinction.
The matter was taken to Court, and the Supreme Court has now held that non-military awards by way of recognition of merit of extraordinary work (e.g., the Padma awards) are not titles of nobility and hence, do not violate Art. 14 or 18, provided they are not used as titles or prefixes or suffixes to the name of the awardee.
Art.19: The six Freedoms
Apart from the rights flowing from the above prohibition, certain positive rights are conferred by the Constitution in order to promote the ideal of liberty held out by the Preamble. The foremost amongst these are the six fundamental rights in the nature of ‘freedom’ which are guaranteed to the citizens by the Constitution of India \Art. 19]. These were popularly known as the ‘seven freedoms’ under our Constitution. It has Art. 19: Six already been pointed out that in the original Constitution, there were 7 freedoms in Art. 19(1) but that one of them, namely, ‘the right to acquire, hold and dispose of property’ has been omitted by the Constitution (44th Amendment) Act, 1978, leaving only 6 freedoms in this Article. They are—1. Freedom of speech and expression. 2. Freedom of assembly. 3. Freedom of association. 4. Freedom of movement. 5. Freedom of residence and settlement. 6. Freedom of profession, occupation, trade or business.
Since Art. 19 forms the core of our Chapter on Fundamental Rights, it is essential for the reader to be familiar with the text of this Article, as it stands amended:
“19. (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 [or co-operative societies];
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in 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 contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d)-(e) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.”
The freedom of speech is the matrix, the indispensable condition of nearly every other form of freedom. It is the well spring of civilization and without it liberty of thought would shrivel. Public decency and morality is outside the purview of the protection of free speech and expression and thus a balance should be maintained between freedom of speech and expression and public decency and morality.
Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as decency and morality.
Flying of National Flag is a symbol of expression coming within the preview of Art. 19(1)(a).141 A voter’s speech or expression in case of election would include casting of votes, that is to say, a voter speaks out or expresses by casting vote.142 Right to information is an integral part of freedom of expression, particularly a voter’s right to know the antecedents/assets of a candidate contesting election.143 Right to speech implies the right to silence. It implies freedom, not to listen, and not to be forced to listen.
The dignity of the Courts and the people’s faith in administration must not be tarnished because of biased and unverified reporting. In order to avoid such biased reporting, one must be careful to verify the facts and do some research on the subject being reported before a publication is brought out Giving of a call for bandh and its enforcement by any association, organization or political party would be illegal and unconstitutional.
No citizen has a fundamental right under Art. 19(l)(c) to become a member of a voluntary association or a cooperative society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right.147 Mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.
No .citizen can claim to have trade in noxious or dangerous goods. Hence, intoxicating liquor being a noxious material, no citizen can claim any inherent right or privilege to sell intoxicating liquor by retail.149 Education used to be charity or philanthropy in the good old times. Gradually, it became an occupation.150 The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. All citizens have a right to establish and administer educational institutions under Art. 19(l)(g) and the minorities have a special right under Art. 30.
Limitations upon the Freedoms
Absolute individual rights cannot be guaranteed by any modem State. Limitations u on guarantee of each of the above rights is, therefore the limited by our Constitution itself by conferring upon the ‘State’ a power to impose by its laws reasonable restrictions as may be necessary in the larger interests of the community. This is what is meant by saying that the Indian Constitution attempts “to strike a balance between individual liberty and social control”.
Since the goal of our constitutional system is to establish a ‘welfare State’, the makers of the Constitution did not rest with the enumeration of uncontrolled individual rights, in accordance with the philosophy of laissez faire, but sought to ensure that where collective interests were concerned, individual liberty must yield to the common good; but, instead of leaving it to the Courts to determine the grounds and extent of permissible State regulation of individual rights as the American Constitution does, the makers of our Constitution specified the permissible limitations in Cls. (2) to (6) of Art. 19 itself.
The ‘State’, in this context, includes not only the legislative authorities of the Union and the States but also other local or statutory authorities, e.g., municipalities, local boards, etc., within the territory of India or under the control of the Government of India. So, all of these authorities may impose restrictions upon the above freedoms, provided such restrictions are reasonable and are relatable to any of the grounds of public interest as specified in Cls. (2)-(6) of Art. 19.
(i) The Constitution guarantees freedom of speech and expression. But this freedom is subject to reasonable restrictions imposed by the State relating to (a) defamation; (b) contempt of court; (c) decency or morality; (d) security of the State; (e) friendly relations with foreign State; (f) incitement to an offence; (g) public order; (h) maintenance of the sovereignty and integrity of India.
‘Decency or morality’ is not confined to sexual morality alone. It indicates that the action must be in conformity with the current standards of behaviour or propriety.155 Hence, seeking votes at an election on the ground of the candidate’s religion in a secular state, is against the norms of decency and propriety of the society.
It is evident that freedom of speech and expression cannot confer upon an individual a licence to commit illegal or immoral acts or to incite others to overthrow the established government by force or unlawful means. No one can exercise his right of speech in such a manner as to violate another man’s such right.
(ii) Similarly, the freedom of assembly is subject to the qualification that the assembly must be peaceable and without arms and subject to such reasonable restrictions as may be imposed by the “State” in the interests of public order. In other words, the right of meeting or assembly shall not be liable to be abused so as to create public disorder or a breach of the peace, or to prejudice the sovereignty or integrity of India.
(iii) Again, all citizens have the right to form associations or unions, but subject to reasonable restrictions imposed by the State in the interests of public order or morality or the sovereignty or integrity of India. Thus, this freedom will not entitle any group of individuals to enter into a criminal conspiracy or to form any association dangerous to the public peace or to make illegal strikes or to commit a public disorder, or to undermine the sovereignty or integrity of India.
(iv) Similarly, though every citizen shall have the right to move freely throughout the territory of India or to reside and settle in any part of the country—this right shall be subject to restrictions imposed by the State in the interests of the general public or for the protection of any Scheduled Tribe.
(v) Again, every citizen has the right to practise any profession or to carry on any occupation, trade or business, but subject to reasonable restrictions imposed by the State in the interests of the general public and subject to any law laying down qualifications for carrying on any profession or technical occupation, or enabling the State itself to carry on any trade or business to the exclusion of the citizens.
Scope for Judicial Review
As pointed out earlier, one of the striking features of the provisions relating to Fundamental Rights in our Constitution is that very declaration of the major Fundamental Rights ‘ is attended with certain limitations specified by the Constitution itself. In the United States the Bill of Rights itself does not con¬tain any such limitations to the rights of the individuals guaranteed thereby, but in the enforcement of those rights the courts had to invent doctrines like that of ‘Police Power of the State’ to impose limitations on the rights of the individual in the interests of the community at large. However, as explained above in Art. 19 of our Constitution, there is a distinct clause attached to each of the rights declared, containing the limitations or restrictions which may be imposed by the State on the exercise of each of the rights so guaranteed. For example, while the freedom of speech and expression is guaranteed, an individual cannot use this freedom to defame another which constitutes an offence under the law. A law which may be made by the State under any of the specified grounds, such as public order, defamation, con¬tempt of court, cannot be challenged as unconstitutional or inconsistent with the guarantee of freedom of expression except where the restrictions imposed by the law can be held to be “unreasonable” by a court of law.
That is how the competing interests of individual liberty and of public welfare have been sought to be reconciled by the framers of our Constitution. As MUKHEiyEA, J. explained in the leading case of A.K. Gopalan v. State of Madras—
“There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. The possession and enjoyment of all rights . . . are subject to such reasonable conditions as may be deemed to the governing authority of the country to be essential to the safety, health, peace, general order and morals of the community. The question, therefore, arises in each case of adjusting the conflicting interests of the individual and of the society. . . Ordinarily every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person. On the other hand, for the very protection of these liberties the society must arm itself with certain powers. What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social security. Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.
It is by way of interpretation of the word ‘reasonable’ that the court comes into the field, and in each case when an individual complains to the court that his Fundamental Right has been infringed by the operation of a law, or an executive order issued under a law, the court has got to deter¬mine whether the restriction imposed by the law is reasonable and if it is held to be unreasonable in the opinion of the court, the court will declare the law (and the order, if any) to be unconstitutional and void.
Tests of Reasonables of a Restrication
The expression ‘reasonable restriction’ seeks to strike a balance between Tests of Reason freedoms guaranteed by any of the sub-clauses of ableness of a Art. 19(1) and the social control permitted by any of Restriction. the exceptions in Cls. (2) to (6). It is to be seen
therefore, what criteria or tests have been laid down by the Supreme Court for determining whether the restriction is reasonable or not. The Supreme Court has said that a restriction is reasonable only when there is a proper balance between the rights of the individual and those of the society. Where the lands were given to landless persons as a social welfare measure to improve the conditions of poor landless persons, the conditions imposed against the transfer for the particular period of such granted land cannot be said to constitute any unreasonable restriction.
2.The test of reasonableness should, therefore, be applied to each individual statute impugned and not abstract 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.163 Thus, the formula of subjective satisfaction of the Government and its officers with an advisory Board to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances (e.g., in providing internment or extemment for the security of the State), and within the narrowest limits, and not to curtail a right such as the freedom of association, in the absence of any emergent or extraordinary circumstances.162 All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice.
The Supreme Court has held that in examining the reasonableness of a statutory provision, whether it violated the fundamental right guaranteed under Art. 19, one has to keep in mind:
(1) The Directive Principles of the State Policy.
(2) The restrictions must not be arbitrary or of an excessive nature, going beyond the requirement of the interest of the general public.
(3) No abstract or general pattern or a mixed principle to judge the reasonableness of the restrictions can be laid down so as to be of universal application and the same will vary from case to case as also with regard to the changing conditions, values of human life, social philosophy of the constitution, prevailing conditions and surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and social control envisaged by Art. 19(6).
(5) Prevailing social values as also social needs which are intended to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved by the Act, that being so a strong presumption in favour of the constitutionality of the Act will naturally arise.
It follows, therefore, that the question of reasonableness should be deter¬mined from both the substantive and procedural standpoints. Hence—
(a) In order to be reasonable, the restriction imposed must have a reaso- Substantive and na^e relation to the collective object which the Procedural legislation seeks to achieve and must not go in excess reasonableness. of that object, or, in other words, the restriction must not be greater than the mischief to be prevented. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness.
Thus The object of an Act was “to provide measures for the supply of adequate labour for agricultural proposes in bidi manufacturing areas”. But the order of the Deputy Commissioner made thereunder forbade all persons residing in certain villages from engaging in the manufacture of bidis during the agricultural season. The Supreme Court invalidated the order on the ground that it imposed an unreasonable restriction upon the freedom of business [Art. 19(l)(g)] of those engaged in the manufacture of bidis because—
The object of the Act could be achieved by legislation restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season or by regulating hours of work on the business of making bidis. A total prohibition of the manufacture imposes an unreasonable and excessive restriction on the lawful occupation of manufacturing bidis.
(b) While the foregoing aspect may be said to be the substantive aspect of reasonableness, there is another aspect, viz., the procedural aspect,—rela¬ting to the manner in which the restrictions have been imposed. That is to say, in order to be reasonable, not only the restriction must not be excessive, the procedure or manner of imposition of the restriction must also be fair and just. In order to determine whether the restrictions imposed by a law are procedurally reasonable, the court must take into consideration all the attendant circumstances such as the manner of its imposition, the mode of putting it into practice. Broadly speaking, a restriction is unreasonable if it is imposed in a manner which violates the principles of natural justice, for example, if it seeks to curtail the right of association or the freedom of business of a citizen without giving him an opportunity to be heard.m It has also been laid down that in die absence of extraordinary circumstances it would be unreasonable to make the exercise of a fundamental right depend on the subjective satisfaction of the Executive.
The rights of hawking for carrying a business on streets cannot be denied if they are properly regulated under Article 19(6) of the Constitution167 but hawkers carrying on trade or business on pavements of roads cannot claim right under Article 21 as right to carry on trade or business is not covered by Article 21.
Freedom of the Press
There is no specific provision in our Constitution guaranteeing the free¬dom of the press because freedom of the press is Press*01” °f *he deluded168 in the wider freedom of ‘expression’ which ‘ is guaranteed by Art. 19(l)(a). Freedom of expression means the freedom to express hot only one’s own views but also the views of others and, by any means, including printing. Since however, the freedom of expression is not an absolute freedom and is subject to the limitations contained in Cl. (2) of Art. 19, laws may be passed by the State imposing reasonable restrictions on the freedom of the press in the interests of the security of the State, the sovereignty and integrity of India, friendly relations with foreign States, public order, decency or morality, or for the prevention of contempt of court, defamation or incitement to an offence. Absolute, unlimited and unfettered freedom of press at all times and in all the circum¬stances would lead to disorder and anarchy. The newspapers serve as a medium of exercise of freedom of speech.170 Any expression of opinion would not be immune from the liability for exceeding the limits. If a citizen, in the garb of exercising the right of free expression guaranteed under Art. 19(1) tries to scandalise the Court or undermines the dignity of the Court, then the Court would be entfrled to exercise the power under contempt provisions. The Press, as such, has no special privileges in India. From the fact that the measure of the freedom of die Press is the same sis that of an ordinary citizen under Art. 19(l)(a), several propositions emerge. The Press is not immune from—
(a) the ordinary forms of taxation;
(b) the application of the general laws relating to industrial relations;
(c) the regulation of the conditions of service of the employees.
II. But in view of the guarantee of freedom of expression, it would not be legitimate for the State—
(a) to subject the Press to laws which take away or abridge the freedom of expression or which would curtail circulation17 and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid;
(b) to single out the Press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media;
(c) to impose a specific tax upon the Press deliberately calculated to limit the circulation of information.
When the constitutionality of an enactment specially directed against the Press is challenged, the Court has to test it by the standard of substantive and procedural reasonableness, as explained earlier. An enactment of this nature, the Punjab Special Powers (Press) Act, 1956, came up before the Supreme Court in Virendra v. State of Punjab,173 and the Court annulled one of its provisions, while upholding another, on the following grounds:
A law which empowers the Government to prohibit, for a temporary period, the entry of literature of a specified class, likely to cause communal disharmony would not be held to be unreasonable, if it complies with the procedural requirements of natural justice. But it would be unreasonable if it empowered the State Government to prohibit the bringing into the State of any newspaper, on its being satisfied that such action was necessary for the maintenance of communal harmony or public order, inasmuch as it placed the whole matter at the subjective satisfaction of the State Government without even providing for a right of representation to the party affected.
Since the expiry of the Press (Objectionable Matter) Act, 1951, in 1956, there was no all-India Act for the control of the Press in India. But in 1976, the Parliament enacted the Prevention of Publication of Objectionable Matter Act, 1976, with more rigorous provisions, and in a permanent form. In April, 1977, the Janata Government repealed this Act. Subsequently, how¬ever, this position was further buttressed by inserting a new Article in the Constitution itself—Art. 361 A174—by the Constitution (44th Amendment) Act, 1978.
Censorship of the press, again, is not specially prohibited by any provision of the Constitution. Like other restrictions, ” therefore, its constitutionality has to be judged by the test of ‘reasonableness’ within the meaning of Cl. (2). Soon after the commencement of the Constitution and. prior to the insertion of the word ‘reasonable’ in Cl. (2), the question of validity of censorship came up before our Supreme Court, in the case of Brij Bhushan v. State of Delhi] The facts of this case were as follows:
Section 7(l)(c) of the East Punjab Safety Act, 1949, provided that “the Provincial Government… if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a printer, publisher, editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny”.
Similar provisions of the Madras Maintenance of Public Order Act, 1949, were challenged in the allied case of Ramesh Thappar v. State of Madras.
The majority of the Supreme Court had no difficulty in holding that the imposition of pre-censorship on a journal was an obvious restriction upon the freedom of speech and expression guaranteed by clause (1) (a) of article 19, that ‘public safety’ or ‘public order’ was not covered by the expression ‘security of the State’, and the impugned law was not, therefore, saved by clause (2) as it then stood.
Shortly after these decisions, Cl. (2) was amended by the Constitution (1st Amendment) Act, 1951, inserting ‘public order’ in Cl. (2). Hence, the ground relied upon by the majority in the cases of Ramesh Thappar and Brij Bhushan is no longer available. The word ‘reasonable’ was also inserted in Cl. (2) by the same amendment. The result of this twofold amendment is that if censorship is imposed in the interests of public order, it cannot at once be held to be unconstitutional as fetter upon the freedom of circulation but its ‘reasonableness’ has to be determined with reference to the circumstances of its imposition. In this sense, the introduction of the word ‘reasonable’ has not been an unmixed blessing. For, censorship of the press, in times of peace, is something unimaginable either in England or in the United States in modem times. But under our Constitution, as the Supreme Court decision in Virendra v. State of Punjab suggests, even at a time of peace, censorship may be valid if it is subjected to reasonable safeguards, both from the substantive and procedural standpoints, but not otherwise. The provisions before the Court172 were ss. 2 and 3 of the Punjab Special Powers (Press) Act, 1956, which were similar to that in s. 7(l)(c) of the East Punjab Public Safety Act, 1949 (which had been impugned in Brij Bhushan’s case),175 except that in the Act of the 1956 what was authorised was even more drastic than pre-censorship, viz.—a total prohibition. The Court held that s. 2, which provided for a right of representation against the order of the authority and limited the power to a specified period and as to publications of a specified class, was valid; but that s. 3, which had no such safeguards, constituted an unreasonable restriction.
It would, therefore, follow that a provision for pre-censorship for a limited period in emergent circumstances and subject to procedural safe¬guards, e.g., as in s. 144 of the Criminal Procedure Code, is valid. If, how¬ever, it is left to the absolute discretion of the executive authority, it must be held to be unreasonable. The Supreme Court has, similarly, upheld the validity of a law sanctioning pre-censorship of motion pictures to protect the interests safeguarded by Art. 19(2), e.g., public order and morality. The constitutionality of s. 66A of the Information Technology Act, 2000, was challenged on the ground that it infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Art. 19(2). Further it casts the net very wide – “all information” that is disseminated over the internet is included within its reach. The Supreme court held that Section 66A creates an offence which is vague and overbroad, and therefore, unconstitutional under Article 19(l)(a) and not saved by Article 19(2).
It should be noted that when a Proclamation of Emergency is made under Art. 352, Art. 19 itself, remains suspended [Art. 358], so that pre-cen¬sorship may be imposed, without any restraint (see Chap. 25, post). Thus, immediately after the Proclamation of Emergency on the ground of internal disturbance178 in June, 1975, a Censorship Order was issued (June 26, 1975), under Rule 48(1) of the Rules made under the Defence and Internal Security of India Act, 1971. It should be noted that on the defeat of Mrs. GANDHI at the election of 1977 the Proclamation of Internal Emergency177 was revoked on the 21st, and the Press Censorship Order was revoked on the 22nd of March, 1977.
Article 19 would also be inapplicable in cases where Arts. 31A to 31C are attracted. These exceptions to Fundamental Rights, which have been introduced by subsequent amendments, will be discussed at the end of this Chapter.
Article 20 guarantees protection in certain respects against conviction for offences, by prohibiting—
Art. 20: Protection in respect of (a) Retrospective criminal legislation, commonly conviction for known as ex post facto legislation.
b) Double jeopardy or punishment for the same offence more than once.
(c) Compulsion to give self-incriminating evidence Prohibition