New Challenges to the Indian Constitution by Dr. Sanjay V. Jadhav

INDIAN CONSTITUTION

Indian Constitution is unitary as well as federal in nature. In case of unitary constitution supreme power remains in the hands of the union government, whereas in case of federal structure there is an existence of state government which recognizes at autonomy of the state as well as certain power of the state our Indian constitution in an emergency situation becomes unitary, whereas, during the peace period it is federal in nature.

The term ‘Federal’ is derived from the Latin word ‘foedus’ which means treaty or agreement. In federal form of govt. it provides demarcation lines between union & state. By distributing certain power to both the govt.

Definition

1. Montesquieu

According to him, “A Constitution by which several similar states agree to become members of a large one is a federal government.”

1. Dicey

According to him, “A federal state is a political contrivance intended to reconcile national unity with the maintenance of state rights.”

1. Garner

In a federal govt. the totality of the govt. power is divided or distributed by the National Constitution or the Organic Act of parliament creating it between a central govt. & the government of the individual state or other territorial sub-divisions of which the federation is composed.

The constitution of U.S. is a classic example of federalism.

Features of a Federal Constitution

1. Distribution of powers

It implies that certain legislative power are given to union govt., whereas certain powers are given to state govt., for e.g., list I of schedule 7 deals with union list over which union govt. has power to make the law.

1. A written constitution

A federal form of constitution is generally written in nature, written constitution helps in ensure the supremacy of the constitution & the application of federal form of govt. in its true spirit.

According to prof. wheare. “ It is essential for a good federal govt. that the supreme Constitution be written.”

Indian Constitution

The Indian Constitution which is federal in nature also contains written provisions presently it has more than 400 Articles & 12 Schedules.

1. Rigid Constitution

The word rigid means which can’t be changed or amended easily. Indian constitution is rigid in nature but still it can be amended by the in accordance with the provision of Art. 368 of the Indian Constitution. The federal structure which is an essential part of the Indian Constitution has also been regarded as a basic structure of Indian Constitution in view of the judgment of the S.C. In case Keshvanand Bharti v/s State of Kerala decided in the year 1973.

What follows from the judgment of the Keshavanand Bharti is that any this which forms the basic structure of the Indian Constitution can’t be changed or amended easily, so also, the scope of judicially is also regarded has the basic structure of Indian Constitution. In view of the decision of the S.C. In the case of Indira Gandhi v/s Rajnarayan decided in the year 1975.

1. Authority of Courts

Since Indian Constitution adopt the federal pattern of the govt., it distribute the power between the Central & State, but ofently one Central govt. may make a legislation which is ultimately in the legislative competence of the State govt. & sometime state govt. makes the law which is suppose to be made by the central govt. in such cases, court declare such law invalid or ultra virus on the grand of excessive legislation thus Court act as a guardian of the Constitution.

Indian Constitution

The S.C. of India has power to decide the dispute between centre & state in view of Art. 13 of the Indian Constitution. It may declare any legislation has invalid in view of Art. 13 of the Indian Constitution, consequently the pronouncement of the S.C. becomes the law of the land in view of Art. 141 of the Indian Constitution.

Benefits of Federalism/merits of federal govt. Since the Indian Constitution does recognizes federal form of govt. It follow certain benefit such as

1) It ensure the decentralization of power at local level, district level & state level.

2) There is a greater efficiency in administration in a federal set of govt. Government functions can be discharged by the servants of both the govt.

3) It also ensures the democratic pattern of the govt. the regional level & national level.

4) In federal govt. interest of the local people are protected for instance in Maharashtra some of the regional party try to protect the interest of marathi people.

5) Due to federal structure unity in diversity as well as integrity of relation by protecting & preserving different culture & languages & can be ensure.

6) In federal structure there is a maximum participation of the political party.

7) Federal govt. can also raise the funds for developing particular territory.

8) Federal govt. provides more opportunities for the protection of rights & liberties of the people.

9) Federal govt. can also acquire good level in international level.

Demerits of federal govt.

1. In a federal structure neither centre nor state enjoy full power of administration.
2. Although federalism does recognize the autonomy to the state but it is of no use in case of national emergency in view of Art. 352, 356 & 359 of Indian Constitution whereby all powers goes to central govt. & state govt. goes out of the picture.
3. Federal govt. is more expensive than unitary govt. because at the same time, government machinery has to be maintained at centre & the state levels.
4. Offenly there is a conflict between centre & state on point of certain legislative & economical issues.
5. In federal govt. there is no uniformity of law as well as administrative.
6. The federal structure of the govt. is quit rigid in nature it doesn’t change according to the urgency of time.
7. In certain cases it become difficult to resolve certain dispute requires the constitution of central govt.
8. As there is division of legislative power between central & states, there is a possibility of variety of laws on the same subject matter.

Modification of Federal Principle in India.

The Constitution of India can be regarded as federal as he fulfills all the principles of federal level. But it can’t be said that the Indian constitution absolutely recognizes federal structure because in certain cases the centre has given the power to legislate which is essentially a subject matter of state. This implies that centre plays dominant role whereas state govt. govt. plays subordinate role.

According to M.P. Jain, Indian Constitution has made centre most powerful vis-à-vis the states because of the following reasons.

1. Before the commencement of Indian Constitution, the Indian territory was administered by Britishers on unitary basis & therefore presently we may find the place union to interfere in the state affairs in certain cases.
2. Soon after independence India face the problem of disintegration of nation i.e. partition therefore it was believe that in addition to have unitary form of govt. which will ensure the integrity of the nation.
3. Being an underdeveloped country, India had to force the pace of economic development. This could be achieved by using natural resources under the direction of centre leadership.
4. The problem of Industrialization can be solve by the centre base govt.
5. The problem of regional imbalance in terms of distribution of income & wealth, allocation of resources can also be solve with the help of govt.

In the following matters the constitution contains a modification of the strict application of a federal principle.

1. Indestructible Union & Destructible States

Art. 3 of the Constitution confers sweeping powers on the Parliament. Parliament authorized not only to create a new state but it may also alter the area, boundary or name of an existing state. It is relevant to note that the Indian Constitution although recognize the existence of state but doesn’t give any guarantee regarding the continue existence of the state, ultimately the existence of the state & tits continuity depends on the weems of the parliament.

In Babul Parate v/s State of Bombay. ( AIR 1960 sc 1241)

The supreme court pointed that unlike some other federal legislatures, parliament, represents the people of India as the whole, had been vested with the exclusive & sweeping power under Art. 3 of the Constitution.

1. Appointment of Governors ( Art. 155 & 156)

According to Art. 155, The Governor of the state shall be appointed by the President by warrant under his hand & seal. According to Art. 156, the Governor shall hold office during the pleasure of the president. Thus the Governor owes his appointment to the President & continues to hold office at the discretion of the President. The office of the Governor thus is under the total control of the centre.

1. Bills for Consideration of President

When a state legislature make any law then it must be assented by the Governor if the governor reject the bill then state can’t pressurize the governor to pass such bill, in such case obtain with the state govt. will be to forward the state bill to the President. Who then gives necessary direction to the governor. Thus although state enjoys autonomy (power) in law making process but still in certain cases it has to depend on union govt.

In Hoechst Pharmaceuticals ltd. v/s State of Bihar (AIR 1983 SC 1019)

S.C. said that once a Bill is reserved for the consideration of the President & the President assents to it, it becomes an Act & nobody can question its validity on the ground that it was not necessary to reserve the Bill for the consideration of Parliament.

4) Parliament power to legislate In the National Interest (Art. 249)

Parliament under Art. 249 in the interest of the nation can make the

law even though of relates to state list if such purpose law is approved by

2/3 majority of the Rajya Sabha. Although such act may violate the federal

structure of the Indian Constitution.

5) National Emergency (Art. 352)

Although Indian Constitution recognizes the federal pattern of

Govt. but, such pattern comes to an end in case of national emergency.

Thus if emergency is declare under Art. 352 or 356 or 359 the power of the

state govt. comes to end & entire power goes to hand of a President.

In Minerva mills v/s Union of India (AIR 1980 SC 1789) Bhagwati J.

It was held that emergency declared by president under Art. 352 is

open to judicial review.

S.R. Bommai v/s Union of India (1994) 3 SCC 1

It was held that emergency declared under Art. 356 is also open for

Judicial Review (means it can be challenge in court of law)

6) Administrative directions to the State (Art. 256, 257 & 365)

Although state enjoys autonomy in administrative affairs it is bound to follow the direction of Central govt. under Art. 365 the centre govt. has power to give executive directions & State govt. is bound to follow such direction.

By the virtue of Art. 256, 257 the Union Govt. is empowered to issue administrative directions to the states to relation to certain matters & state govt. is bound to follow such direction.

7) Uniformity in basic matters

Although Indian Constitution does apply federal structure but in certain cases it is unified in nature for e.g. our judicial in unified in nature by recognize the single S.C. thought out the territory of India under Art. 124 of Indian Constitution. In administrative affairs also the recruitment of collectors & other Indian administrative services which are deputed at various state are also appointed through U.P.S.C.

8) Residuary Powers (Art. 248)

Under Art. 248 the centre has power to make the law which are not covered by union list, state list & concurrent list.

9) Single Citizenship

U.S.A. Constitution does recognize dual citizenship whereas Indian Constitution recognize single citizenship (the provision related to citizenship is contained in Art. 5 to 11)

10) Amendment of the constitution (Art. 368)

Indian constitution can be amended in accordance with Art. 368 in which if the propose amendment is affecting the interest of the state then out of 26 states at list 13 states must give approval to such amendment, so also the union legislative before enacting the legislature affecting the interest of the state is also require to consult with the respective state govt.

Judicial Interpretation

State of W.B. v/s Union of India (Air 1963 SC 1241)

The court refuse to accept the state sovereignty & up hold the validity of the Act pass by the central govt.

State of Rajasthan v/s Union of India ( AIR 1977 SC 1361)

The court justified the act of the center in view of the Art. 356 of the Indian Constitution & describe the Indian Constitution more unitary in nature.

State of Karnataka v/s Union of India (AIR 1978 SC 68)

The S.C. held that the power of the centre govt. by appointing the committee to enquire the affairs of the minister of the state didn’t violate the federal structure of the govt.

S.R. Bommai v/s Union of India( AIR 1994 SC1918)

AHAMADI J. after referring to Art. 356 held that the Indian Constitution is quasi federal in nature.

Co-Operative Federalism

Although Indian constitution does recognize federal structure of govt. by distribution legislative power to union as well as state. However such power are to be exercised in co-op of each other. Thus a state govt. can’t exercise his power by complete ignoring the existence of the central govt. In short both Central as well as state by the mutual co-operation governs the nation & this is how Indian constitution is characterized by federal structure.

Object

The co-operative federalism is necessary with a view to achieve following object.

1) To work collectively for the benefits of people in the wake of welfare state.

2) To utilize the natural resources for the common advantage of all.

3) To maintain unity & integrity of a federal State.

4) To achieve scientific & technological collaboration among the different federal state.

Attempts made by Indian Constitution in maintaining co-operative relationship between union & state’s with a view to maintain co-operative relationship between centre & state following provisions are contempt in the Indian constitution.

1) Full faith & credit clause (Art. 261)

Art. 261 provides that, full credit &respect must be given to public acts records & the judgment for the courts of the union as well as each respective state. It further provides that decree or judgment pass by the competent civil court will be recognized & enforce in accordance with the law. Art. 261 has given nation wide application to public acts, records & judicial proceeding & has established co-operative between various units.

Maloji v/s Shankar Saran (AIR 1962 SC 1737)

Court held that, Art. 161 is prospective in nature. So it will apply to obly those judgments or orders which were made after 26, January 1950, when the constitution came into force.

2) Disputes relating to river water (Art. 262)

It authorizes the parliament to make the law for the settlement or adjudication of dispute regarding the use of water of any rivers or river valleys.

It further provides that, once the act is made by the parliament it can’t be challenged any court of law.

3) Inter-state Council (Art.263)

By the virtue of Art. 263 President has power to constitute inter state council with view to perform following functions:

1) To investigate a problem of 2 or more state.

2) To give advise to the president on interstate dispute.

3) To promote co-operation among different states.

ADMINISTRATIVE RELATIONS

The federal kind of govt. doesn’t mean one state will be in position to do its affairs without the support of centre, for any state, for the smooth functioning of the state affairs the co-operation of union in terms of administration is very much essential. In this regard the provision of the Indian Constitution contained in Art. 256 to 263 which deals with administrative relationship between union & state, any dispute which might arise in future may be solved effectively.

1) Obligation of states & union Art. 256)

It imposes executive responsibility in the state to perform its state duty or its affairs which will not go against the provision of any law made by the parliament. Likewise it is also duty of the state to respective executive direction of the union. It also imposes executive responsibility on the state to implement those law on the parliament which are applicable throughout the territory of India.

2) Control of Union over State in certain cases:

Art. 257 then provides that,

1) Executive acts of the state shouldn’t go against the execute direction of the Union.

2) Executive direction of the union under this Art. Will include direction in connection with the military arm force for the maintain of national peace & protecting the railway within the state. It becomes a duty of the state to respect & to follow this direction.

3) Whatever expenses with the state has incurred in implementing those executive direction of the union will be reimburse by the central govt. However, if the state govt. is not agreed on the expenses reimburse by the union then it will be decided by arbitrator who will be appointed by chief justice of India.

3) Power of the union to confer power etc. on states in certain cases-Art. 258.

Under this Art the president may confer certain power on the state to execute direction of the union the parliament has also officials or machinery for implementing union laws, for this purpose, it may give certain powers to state officers.

4) All India Services –Art. 312.

Art. 312 Authorizes the parliament to make the laws for all India, however 2/3 members of the Rajya Sabha should be agreed for making such law.

5) Art. 261

6) Art. 262

7) In the 21 st century, even after adopting globalize pattern or privatization the welfare model of the state is accepted all over the world. It is assume that the responsibility of the state is not only confine to protect law & order but also extend to other kinds of welfare measures. Part IV of the Indian Constitution which expressly recognizes welfare model of the state. Art. 39 ensures equal distribution of income & wealth. Art. 39(A) ensures equality of opportunity to legal aid.

Art. 41 ensures social security measures on the ground disablements old age, it also ensures maternity relief & in view of Art. 46 & 47 it ensures right to health & economical justice in favor of the weaker section. Thus, to ensure effective education, health a consider to be prime responsibility of the state. Since education & health comes under list to it is a responsibility of the state to ensure this welfare measure it requires fund, state govt. has to depend on central govt. for financial grant. Indian constitution make the necessary provision for the financial grant by union to states this provisions ensures good federal relationship between union & state.

Legislative relationship between union & state

Indian constitution since it adopt the federal structure has distributed certain legislative power between union & state.

List I deals union list over which union govt. has power to make the law.

List II deals with state list.

List III deals with concurrent list.

In respect of List II central govt. can’t make the law but national emergency it can make the law.

The basic framework of the government of India 1935 has been adopted with reference the distribution of legislative power between union & the states by the present constitution.

Schedule 7 deals with Union list, state list, concurrent list :-

1. Territorial Jurisdiction

Art. 245 parliament can make the law for whole of the territory of

India whereas state can make the law for the particular state territory.

Theory of Territorial Nexus :

To make the law which has extra territorial operations within the hands of parliament for instance criminal procedure code (1973) enacted by the parliament contains extra diction clause whereby an accuse who is a Indian residing outside the territory of India can be brought in India with the help of international territory.

State laws can’t be applied outside the territory of the state otherwise it may be challenge in the court of law.

State of Bombay v/s R.M.D.C. (AIR(1957) SC 699)

In this case the tax was imposed on lottery gaining’, under the price competition act in view of the said act the govt. also decide to impose tax on cross world prize competition in the news paper, keeping in view the legislative intend was held that it can’t be applied cross world competition.

Shrikant Karulkar v/s State of Gujarat. [(1994) 5 SCC 459]

The S.C. upheld the Gujarat Agriculture Land Ceiling Act, 1960 on the principle of territorial nexus in so far as that Act took into account the agricultural land held by a person outside the State of Gujarat for the purpose of determining that ceiling of agricultural land in the State of Gujarat.

1. The subject matter – Art. 246

Although Indian Constitution in view of Art. 246 has distributed legislative power between centre & state but more power is given to centre than to state.

State of West Bengal v/s K. Industries ltd. 2004 1 SC ALE 426

In this case the court observe that by giving more legislative power to centre, it has plays the central govt. on stronger position.

In other word between centre & state Centre is more powerful.

Distribution of subject matter of legislation

Art. 246 has provided distribution of subject matter of legislation, divided union & state three lists

1. List which is union list

Contains 97 subject matters over which centre has power to make the law.

1. List which is a state list

List 2 contains of 66 subject matters over which state can make law.

1. 3 list which is concurrent list

List 3 contains of 43 subject. In this both centre & state though their effective concatenation can make the laws.

Residuary powers of the legislation Art. 248

Art. 248 deals with certain subject matters which are not covered by List 1,2 & 3, then in this case, centre has power to make this law, this called as residuary power of the central.

Principles of Interpretation of lists:-

1. Plenary (unlimited) power of the legislature:

The constitution confers unrestricted or unlimited power to centre to make the law. Even judicially can’t stop the legislation for enacting the laws howsoever violative of fundamental right of such purpose law may be, but such laws can be challenged under Art. 226 & or Art. 232, whereas certain laws which falls in schedule 9 for essential service maintenance Act can’t be challenge in court of law but recent S.C. ruling says that any laws even though it falls in schedule is open for judicial review.

Umeg Sing v/s State of Bombay (AIR 1955 SC 540)

In this case court recognize the legislative competency to make the law even legislative competency to make the law even in Chitranjit Lal Chowdhary v/s Union of India Court held that laws are presume to be valid unless it is challenge by the petitioner.

1. Retrospective legislation

Generally laws are presume to be prospective in nature. However legislature is competent to make the retrospective laws also which will also apply to pending cases.

J.K. Jute Mills v/s State of U.P. (AIR 1961 SC 1534)

It was held that legislature can make both prospective as well as retrospective laws subject to limitations contain in the constitution.

1. Each entry to be interpreted broadly

While interpreting each entry of the union list, state list, concurrent list the court adopt the rule of liberal & wider interpretation.

R.S. Rehchand Mohota spg. & wvg. Ltd. v/s State of Maharashtra (AIR 1997 SC 2591)

Court observed that, the legislative entries are required to be interpreted broadly & widely so as to give power to the legislature to enact law with respect to matters enumerated in the legislative entries.

1. Harmonious Construction

It provides that whenever there is conflict between union list & state list the court will try to reconcile & will try to give effect to both the list but when reconciliation is not possible then union list will prevail over the state list.

1. Doctrine of pith substance

Generally it is expected that union list should not overlap over the state list & vis-à-vis. In other words state can’t make the law which essentially falls in the list I but sometime encroachment may occur by enacting the law which essentially falls in other list. In such case question arose whether such law should be declare invalid, to overcome from this difficulty the S.C. innovated the doctrine of pith & substance by the virtue of such doctrine, after interpreting the particular law if the object for which law was enacted within its competency when such law will not be declared invalid.

1. Doctrine of colorable legislation

In view of this doctrine, if any law violates the fundamental right or other constitutional provisions then it will be declare invalid.

Power of Parliament to legislate on state subjects:-

1. Power of Parliament to legislate during proclamation of emergency Art. 250:-

Under Art. 250 when emergency is declare parliament can make the law even in respect of state list.

1. Power of Parliament to legislate with the consent of State:-

Under Art. 252 Parliament can make the law over the state with the consent of respective state.

1. Power of Parliament to legislate for giving effect to treaties & international agreements Art. 253 :-

Under Art. 253 to fulfill its international obligation parliament can make the law.

1. Power of Parliament to legislate in case of failure of Constitutional machinery in the state:-

Under Art. 356 when state assembly is dissolve then parliament can make the law for such state.

THE EMERGENCY PROVISIONS

Emergency provision contained in the constitution goes against the principal of federalism. Whereby the federal govt. comes to an end & entire power goes in the handoff centre.

Gulam Sarwar v/s Union of India (AIR 1967 SC 1335)

Court said that the power of emergency should be invoked only in exceptional & emergency circumstances.

Kinds of emergency

1. National emergency Art. 352

Under Art. 352 when war is declare or when theiris enxternal as well as internal aggression then the president on the basis of written communication given by the council of ministry declare the national emergency.

Such proclamation must be laid before each house of the parliament, it is operative for 1 month unless it is extended by either of the house by 2/3 of majority.

However maximum relation of emergency will be 6 months.

State of Rajasthan v/s Union of India (AIR 1977 SC 1361)

Emergency declare by president can be challenge in court of law on the ground of mala-fideness of president.

Effects of Proclamation on National Emergency :

1. Extension of centre’s executive power [ Art. 353(a) ]

Once the emergency is declare then under Art. 353 (a) the executive power of the union will also extend to for necessary direction for administering affairs of the states.

In other words state govt. employees is bound to listen direction of centre.

1. Parliament’s power to legislate on state subjects (Art. 250 & 353 (b))

During the emergency by the virtue of Art. 250 & 353 (b) Parliament can make the law even in respect of State list.

1. Alteration in distribution in revenue (Art.354 (1))

Provides that, while a proclamation of emergency is in operation, the president may order, alter or modify the financial arrangements contained in Art. 268 to 279 relating to distribution of revenue between the union & the states.

1. Extension of duration of Lok Sabha (Art. 83)

During the emergency under Art. 83 the duration of Lok Sabha may extent beyond the five years for another one year & further extend to 6 month. In other words Lok Sabha house for 5yrs. + 1yr. + 6m.

1. Suspension of Fundamental rights (art. 358):

Under Art. 358 during the emergency fundamental rights will not be enforceable. Person can’t file a writ petition.

1. State Emergency – Art. 356

When a particular state govt. is not perform its affair in accordance with the state then governor gives report to the president & the president after consulting with council of minister (centre) may dissolve the state govt. this is called State emergency. This emergency remains operative for 2 month unless it is extended by both the houses by 2/3 majority. However maximum duration of such emergency 3 years. Such Emergency can be challenge in court of law.( It can be extended by 6m to maximum 3 yrs.)

S.R. Bommai v/s Union of India (AIR 1994 SC 1918)

Court held that proclamation issued by President under Art. 356 is subject to judicial review.

1. Financial Emergency (Art. 360)

When financial condition or economical condition of the country is broken then president may declare the emergency, during this period salary of the govt. employee including the salary of the judges can be reduce.

CHAPTER 2

“STATE NEED FOR WIDENING THE DEFINATIONS IN THE WAKE OF LIBERALIZATION”

Introduction

According to Aristotle “Man is a social animal & can’t live separately from the society. History is a witness that man initially forms the group which latter on turn into community then the society & their after state man forms various kinds of organization for fulfilling his wants & state is one of the organization or agency essentially form by the man which is concern with the fulfillment of the desires of the man.

Since state is an important agency which regulate the affairs of every human beings. Their for it is necessary to analyze the concept of state. According to Garner, Political Science as a subject, begins with the state & also ends with the state.

Oppenheim – “ The state exists when people settle in a country under its own sovereignty.

Art. 12 of the Indian Constitution defines the term State – To include Central Govt., State Govt., & Local authority which discharge the public function it also includes the parliament of India & the legislature of each state.

Today most of the countries in the world adopt the welfare pattern of the state.

Functions of the state:

Therefore as a welfare state it has to perform following functions.

1. State as a Protector :

It protect the life of the people from external as well as internal aggression. Thus it maintain the law & order in the society.

1. It provides medical as well as educational facilities to its people for e.g. jobs, medical facilities, road, licences. State work for at the benefits of all the citizens.

1. It make executes & control various kinds of Industrial & economical policies.

1. It also settles & executes various kinds of disputes between the citizens.

Nature of State

1. State as a Ethical lustitution.

State is also regarded has moral lustitution moral development of human being, this view of held by Aristotle & Plato in their writing.

1. State as a legal lustitution.

It is also regarded as a legal institution to administer the justice & to punish the wrong doer in the society.

1. State as an Organic Unit.

State is also regarded as one kind of living human being or as a organic theory which recognize by organic theory which was profounded by the Plato

1. State as a Welfare Organization.

According to modern jurist state is regarded has a welfare state. Which is regarded with the law & order but also concern with the wellbeing of the people.

1. Marxian view regarding nature of State :-

According to Marx state is an agency of the classes which exploid the masses.

Essential elements of State:

1. It has a definite territory.
2. It has its population.
3. IT enjoys the soverginity over its territory in other words other country can’t interfere in the internal affairs of the another country.
4. It has its dejura recognition are international level.

State is essential for the development of each & every individual.

In a democratic state it is very much necessary that the fundamental rights as well as constitutional of each & every individual need to be protected. It is presume that both state actions as well as private action which encroaches upon the fundamental right as well as legal right are struck down. Therefore any legislation made by the state which violates the fundamental rights or constitutional right are declared invalid under Art. 13.

Definition of State Art. 12.

A Definition of the term state as provided by Art. 12 is inclusive in nature as it used the word “includes”.

The definition of the term state covers the executive organ as well as legislative organ theirfore both executive sactions as well as legislation of the legislature can be challenged in the court of law on the ground that it is violative of fundamental rights.

The definition of the term state also includes local authorities which is defined under sec. 3(31). Of the General clauses Act 1897, Local Authority means any authority like municipalities, District Boards, Panchayats, Improvement Trusts, Post Trusts Mining Settlement Board, etc.

In the case of Union Of India v/s R.C. Jain (AIR 1981 SC 951)

The S.C. held that , so as to call a particular authority as local authority it must fulfill following requirements:

1. IT must have a autonomous status.
2. It must have a elected body.
3. It must have a power to raise the funds.

In analyzing the definition of state any agency institute corporation or company which is own controlled & manage by the state which also regarded as state. Thus a govt. company has defined sec. 617 of the companies Act is also a state with in a meaning of Art. 12 of the Indian Constitution.

Rule of Ejusdem generis & Art. 12.

This rule means general words must be interpreted in its restrictive sense under the technical words must be interpreted in a broader sense. The term state is a technical word & therefore for interpreting this terminology court must adopt broader or larger interpretation. Further it provides that words are to be interpreted in the forms & context in which it was used.

University of Madras v/s Shantha Bai (AIR 1954 Mad. 67)

It was held that university of Madras being an autonomous agency discharges the public function, involving the instrumentality of the state is held to be a state.

Rajasthan state Electricity Board v/s Mohan Lal (AIR 1967 SC 1857)

Court held that, Rajasthan Electricity Supply Act 1998 is included within the meaning of other Authorities & is a state under Art. 12 of the constitution Court has rejected the application of rule of ejusdem generis.

Sukhdev Singh v/s Bhagatram (AIR1975 SC 1331)

The court held that corporation like ONGC , LIC, IDFC is a state within a meaning of Art. 12.

R.D. Shetty v/s International Airport Authority (AIR 1979 SC 1628)

IT was held that the International Airport Authority which has been created by an act of parliament was the ‘State’ within the meaning of Art. 12.

Ajay Hasia v/s Khalid Mujib (AIR1981 SC 487)

IT was held that a register society under the societies Registration Act 1898 would be a state.

Som Prakash v/s Union of India (AIR 1981 SC 212)

S.C. held that the Bharat Petroleum Corporation which is register under the companies act which is also a State.

Unnikrishnan v/s State of A.P. 91993) 1SCC 645

S.C. of India subjected private educational institute to the discipline of the Art. 19 on the ground that, they were perfoming a function in furtherance of a state function that is the provision for education.

Pradeep Kumar v/s Indian Institute of chemical Biology (2002) 5 SCC1)1,

S.C. has held that the council for scientific & Industrial Research is an authority under Art. 12 & was bound by Art. 14.

Recently the court held that BCCI although a private agency, a writ petition can be file against such agency. This was held in the case of Zee Telefilms Ltd. v/s Union of India.

1. IT is now settle law that once an agency is declare as state it is bound to act according to rule of law & according to constitutional guidelines (mandates). The State also becomes subject to writ jurisdiction of the S.C. under Art. 32 & that of the H.C. under Art. 226.

CHAPTER 3

Right to Equality: Privatization & its impact on affirmative Action.

Art. 14 to 18 deals with right to equality wherein Art. 14 insures equal protection & treatment before the law. It ensures equality in general whereas Art. 15, 16, 17 provides specific application of the equality. Although Art. 14, 15, 16 ensures equality to all in old spears of the life but Art 15(4), Art.16(4)A provides an exception to the equality clause, where in, state come out with the reservation policy or affirmative action for the benefits of women child S.C., S.T., O.B.C. will not be a violation of Art. 14 of the Indian Constitution.

Keshvanand Bharti v/s State of Kerala

Decided in the year 1973 the S.C. held that the Parliament can amend the Constitution but it can’t amend the basic structure. Right to equality has been regarded as the basic structure which can’t be amended this principle was also applied in the case of

Indira Nehru Gandhi v/s Raj Narayan

Ashutosh Gupta v/s State of Rajasthan (AIR 2002 SC 1533)

The S.C. held that there is a close connection between the doctrine of equality & rule of Law as enshrined in the constitution.

1. Equality before law (Art. 14)

Art. 14 provides that state n’t deny any person equal protection & equal treatment before the law in the territory of India. This principle is similar with Art. 17 of Universal declaration of human rights which also ensures right of equality.

2 Concepts are involved in Art. 14 “equality before the law” & equal Protection of law”

Equality before the law

It provides that every person irrespective of his class or status shall be equal before the law for instance when offences committed by poor man or rich man both of them try before the same court. This is similar with DICEAn concept of “Rule of Law” in Britain. According to him, “ With as every official from the Prime Minister down to a Constable in under the same responsibility for every act done with out legal justification as any other citizen.”

Kalyan Sarkar v/s Rajesh Rajan (2005)3 SCC 307

S.C. ruled that member of Parliament or influential politicians were not above the law & while in custody were to be kept in prison cell like any other normal prisoner.

Although Art.14 is very much clear that nobody is over & above the law but for there are certain people who enjoys the immunity for instance foreign Diplomat & state governor under Art. 361 enjoys the immunity & free from any appearance before the court of law.

Equal Protection of Law

Equality of law is based on a principles that Equals are treated equally & unequal are treated unequally.

Equal protection in view of Art.14 mean equal law should be applied in equal circumstances identical treatment in unequal circumstances would amount to inequality. Reasonable Classification is very much necessary to bring all the sections of the people of the society in to main stream line therefore on the basis of doctrine of reasonableness state adopted affirmative action by way of reservation in favor of woman & backward classes so that this people will also come into main stream line.

Doctrine of Reasonable Classification

The doctrine of reasonableness is also apply in various kinds of legislative provisions whereby equal are treated equally & unequal’s are treated unequally.

Test of reasonable classification

Classification to be reasonable should fulfill the following two tests:

1. The classification must be based on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group &
2. The differentia must have some rational to object sought to be achieved by the Act.

If a legislation make some differentia classification or provide some facility or exemption or reservation or other affirmative action to a particular category of person then their must be some logic or reason behind in providing such facility.

P.U.C.L. v/s Union of India (AIR 2004 SC 1442)

The S.C. held that even if an act provides differential classification or it is discriminatory in nature the court will presume that such discrimination or classification is reasonable in nature unless it is challenge by the petitioner that such classification is unreasonable.

Kedar Nath v/s State of W.B. (AIR 1953 SC 404)

It was held that the classification made by the legislature need not be scientifically perfect or logically complete.

The classification may be made on different basis e.g. geographical, according to the objects or occupation or the like.

Basis of classification

Reasonable classification can be made by the legislature on the following basis

1. Geographical basis.

Classification based on geography means legislature can make the law for the particular territory & it doesn’t apply the said law for other territory.

M.P. Oil Extraction & Fur v/s State of M.P. (AIR 1998 SC 145)

It was held that, some favorable treatment to backward areas or notified tribal area can’t be declare invalid.

1. Classification in favor of State

The term person in Art. 14 doesn’t include “State”. Therefore, a Classification which treats the state, differently from persons, may not be violative of the rule of equal protection of law.

Sagir Ahmed v/s State of U.P. (AIR 1954 SC 728)

A monopoly created by state in its favor with reference to business of Motor Transport was held valid as not offending Art. 14.

1. Tax Laws

In case of income tax high income groups are subjected to high income tax as compel to law income group, this is called progressive classification & it is not violative of Art. 14 of the Indian constitution.

1. Special Courts & Special Procedure

Parliament make some special laws & also set up some special courts for the speedy disposal of cases, such special courts aren’t bound to follow regular procedural aspect of the law, such legislation again willn’t be violative of the Art. 14.

1. Administrative Discretion – Wednesbury Test

Sometime parliament gives the power on administrative to use the discretion on case basis generally, their discretion differs from case to case, which results into classification of cases such classification made by the administrative will not be violative of Art. 14.

Distt. Registarar v/s Canara Bank (2005(1) SCC 496)

Administrative discretion can be challenge in the court of law under Art.14 if such discretion is exercised without following principle of nature justice.

New Concept of Equality:

New concept of equality provides that any acts which is arbitary in nature can be struck down (can be declare unvalid) on the ground of it violate Art.14.

This principle was apply by the court in the case of E.P. Royyapa v/s State of T.N. (AIR 1978 SC 597)

Maneka Gandhi v/s Union of India (AIR 1978 SC 597)

The S.C. held that what is prohibited by Art. 14 is an arbitrary act on the part of govt.

Ait India v/s Nargesh Meerza (AIR 1981 SC 1829)

S.C. struck down the Regulation providing for retirement of the Air Hostess on her first pregnancy, as arbitrary & unreasonable & hence violative under Art. 14 of the constitution.

!) Art. 15- Prohibition of discrimination against citizen

Then provides wider application of Art. 14 which provides that their shall not be any restriction or prohibition on any persons from entering at any public place. (This right is available to citizens of India)

It further provides that citizens will have to right to use & enjoy & to entr upon public entertainment place, tanks, wells, bathing ghats, road & places of public resort.

However this article provide that state can provide some affirmative actions for the development of Women & child.

It also provide some affirmative action to backward classes particularly S.C, S.T. clause (4) of Art. 15 which talk about affirmative action for backward classes was added by the Constitution (first amendment) Act 1951 as a result of the decision of S.C. in State of Madras v/s Champakam Dorairajar (AIR 1950 SC 226).

1. Art. 16- Equality of opportunity in matters of public employment Art. 16 deals with equality of opportunity in case of public employment it provides that citizens will have a right of opportunity in public requirement provided they are fully qualified & suitable for that post Art. 16 (4) then provides that state can reserve certain post for backward classes particularly S.C., S.T. in public employment by the virtue of Art. 16(4) (A) even their will be reservation in case of promotion for S.C., S.T. in the service.

Privatization & its impact on affirmative action:

The globalization has changed the life of the people, it has also made the govt. to change its economical policy. In the process of globalization even state has to change his policy & has to face the process of globalization.

India is a democratic country which adopts the welfare pattern of the state in its constitution of India under the chapter on the directive principle policy of the state ( Art. 36 to 49). If to much importance is given to private sector on the process of privatization which might ignore the welfare of the masses & same will disturb the welfare pattern of the state as well as preamble of the constitution of India.

The term “privatization” reference to pattern of open economy of capitalistic economy were maximum freedom is given to individual in carrying out their economic affairs & there is very little interference of the state.

In privatization rule of the state is reduce & demand as well as supply of the economical activities are regulated by market forces. Privatization has urged the government to come out with policy of liberalization which was initially moved by prime minister of Rajeev Gandhi& then prime minister Late P.V. Narsinghrao after 1991. Privatization referee to change in ownership from public enterprises to private enterprises.

In the process of privatization the government adopted disinvestment policy whereby if any company were govt. had certain % of ownership its sold its ownership & gave it to private player. Some public enterprises were close down by the govt. on the ground of continuous losess or lack of profitability. Even appointing people on contract basis for or giving contract to private players for appointing certain people also referred has privatization. This has resulted in lack of stability, honesty, royalty towards the public employment.

If private sectors would be boosted then all S.C. ruling with regard to the people belonging to the category of lower class, scheduled class & scheduled tribes & other backward classes will collect duct. If the privatization is allowed then every person will start saying that the enjoy the freedom to carry any lawfull trade or business or profession. In view of Art.19 without any restriction by the govt. on them. This will result in lack of opportunity to weaker section as well as to backward classes, this will also result in consultation of income & wealth. Our Country though the Constitutional mandate has made necessary effort in improving the standard of living of weaker section though affirmative action by way of regulatory mechanism but if excessive privatization is allowed that will compel the govt. those who reduce or to minimize it interference on again this opportunities of various facts of life to weaker section. In case of privatization govt. can’t interfere in the policy affairs of interprener, this would mean that an interprener who don’t like the reservation will not implement the same in his institute & the state will have little role due to privatization to compel the interprener to implement the reservation.

Further in the era of privatization everyone has maximum freedom to start any adventure or a business & to start such business by necessary implecaton would also mean to close down business. If it is not found profitable this again result into unemployment of the masses & state will have very little role to play in such situation.

Equality & Reservation Policy – Judicial views

Art. 16(4) Judicial views of the reservation

Art. 16(4) deals with the reservation in favor of backward classes only when such community is not adequately represented in the society.

Balaji v/s State of Mysore (AIR 1963 SC 649)

It was held that to determine particular class is a backward class various factors like poverty, place of habitation, occupation may all be relevant factors should be taken into consideration.

Devadasan v/s Union of India(AIR 1964 SC 174)

S.C. held that reservation can’t be more than 50%.

State of Kerala v/s Thomas (AIR 1976 SC 490)

It was held that exemption to S.C. & S.T. was held to be valid in view of Art. 16(4) of the Indian constitution.

A.B.S.K. Sangh (Railway) v/s Union of India (AIR 1981 SC 298)

S.C. by following Thomas case upheld the validity of the Railway Board circular under which reservations were made in selection posts of the S.C. & S.T. candidates. The court also upheld the carry forward rule wherein the reservation quota came to about 64.4%.

After comparing Balaji case & A.B.S.K. Sangh case it is submitted that Balaji’s case which recognize the reservation to the extent of 50% is proper as compare to judgement of reservation delivered in A.B.S.K. Sangh case.

But Indra Sawey v/s Union of India (AIR 1993 SC 477)

Popularly known as Mandal Judgment clarify the stamp on point of reservation that it can’t go beyond 50%.

In the said judgment court clarified that their can’t be reservation for promotion but 77 th Amendment Act 1995 of the Indian constitution by introducing Art. 16(4) (A) does provide reservation even in case of promotion.

Constitution (81 st Amendment) Act 2000.

This Amendment has added a new clause i.e. Art. 16(4) (B) which provides that in case of fulfilling the backlog vacancies even though reservation should be considered.

CHAPTER 4

EMPOWERMENT OF WOMEN

At the International level various conventions like universal declaration of Human Rights (1948) The International Covenant on Economic, Social & Cultural Rights (1996), the Covenant on elimination of violence Against Women (1993) etc. Recognize the human rights to all persons including to women as well but despite of recognition of human rights to women by this International Conventions & declaration, even as on today one may find their has been gross violation of human rights of woman in the country like India.

In India the Constitution does provide constitutional safeguard to women, i.e. to say Art. 15(3) protect the women by way of affirmative action.

Art.23 prohibits human trafficking. Art.39(d) ensures equal pay for equal work to men & women, Art. 42 it also ensures maternity relief to women despite of the safeguards even as on today human rights of women have been violative.

73^rd & 74^th Amendment ensures reservation in favor of women for contesting election at local level. Therefore today one may find the reservation for women in the election of panchayat, zilla parishad & other local level bodies even in women now enjoy reservation in education field. Art. 39(e) imposes duty on the state to protect the held of women from unnecessary abuse or exploitation.

Art. 44 which ensures uniform civil code which will enable the women to claim equal justice, equal status, equal protection from the court of law. With a view to comply Art. 44 the govt. enacted certain laws with a view to bring uniformity in the matters of marriage, divorce, succession, adoption & maintenance etc. in Sarla Mudgal v/s Union of India (AIR 1995 SC 1531) case.

To protect the interest of women govt. also enact the certain law such as dowry prohibition Act 1961 which prohibits the giving & taking of dowry, The govt. enacted The Medical Termination of Pregnancy Act 1971 which prohibits the termination of pregnancy if it is dangerous to life of women.

Parliament has enacted Protection of Women from Domestic Violence Act, 2005 which protect the women from domestic violence & also authorize to claim damages from her husband & from her husband family & also authorizes her to file application for claiming her ornaments from husband.

Indian judiciary also played an important role in protecting the rights of women.

In Vishakha v/s State of Rajasthan(1997) 6 SCC 241

The S.C. issues strict direction to the govt. top take certain steps for prohibiting the sexual harassment of women at the work place.

Air India v/s Nargesh Meerza (AIR 1981 SC 1829)

It struck down the unreasonable service condition of Air hostesses.

Thus Indian judicial in the world enjoy the respect as far justice concern.

CHAPTER 5

RIGHT TO FREEDOM: Freedom of Press & Challenges of new scientific development

Introduction

Right to freedom is consider to be one of the most important fundamental right recognize by Art. 19. It is a duty of the State to protect this fundamental right of freedom of press. What is protected by Art.19 is freedom of speech & expression this including freedom of press. However this freedom is not absolute in nature. State may impose certain reasonable restriction over the exercise of this freedom in the interest of public.

Chintamani Rao v/s State of M.P. (AIR 1951)

The S.C. held that by applying police power state may impose certain reasonable restriction over this freedom.

Art. 19 guarantees following freedom to citizens

1. Freedom of speech & expression.
2. Right to assemble.
3. Right to form an association.
4. Right to move any where in India.
5. Right to settle in India.
6. Right to carry business or profession.

1. Freedom of Speech & Expression (Art. 19(1) & 19(2))

Freedom of speech & expression is very much essential for domestic functioning of each country. However in view of Art. 19(2) state may impose reasonable restriction.

Romesh Thaper v/s State of Madras

It was observed that freedom of speech & expression is essential for any democratic country.

It also include freedom to express once opinion by written or oral speech it also includes to paid & to also dance.

Usha Utthap v/s State of W.B.(AIR 1984 cal. 268)

Calcutta H.C. held that freedom, of speech & expression includes right to paint, sing, dance, to write a poem, literature etc.

1. Freedom of Press

Freedom of press it includes public issue of any material by means of public communication. Freedom of press is considered to be a fundamental right to include freedom of speech & expression.

Needs of freedom of Press

1. Freedom of press is an extension or expansion of freedom of speech & expression.
2. Printed matters record the ideas in permanent form while the speech can’t.
3. However large the audience of speech may be, a press has a larger circulation than spoken words.
4. In every democratic system there should be a free exchange of words , ideas , thought, information etc. This can be done by press.

Brij Bhushan v/s State of Delhi (AIR 1950 SC 129)

The chief commissioner of Delhi issued an order against the petitioner, the printer, publisher & editor of an English Weekly called “The Organizer”. By this order it was directed that all the information photograph should be submitted by the press to the Commissioner of scrutiny. S.C. held that pre-censorship is violative of freedom of speech & expression under Art. 19(1)(a) so it is unconstitutional.

Virendra v/s State of Punjab (AIR 1957 SC 896)

S.C. held that prohibition on publication of news containing current issues would be a violation of Art/. 19.

Sakal Newspaper v/s Union of India (AIR 1962 SC 305)

The Daily Newspaper (price & page) orderly which fixed a minimum price & number of pages which a newspaper was entitled to publish was held to be violative of Art. 19(2) (restriction on quantity of pages of newspaper was held to be invalid)

Bennet Colman v/s Union of India (AIR 1973 SC 106)

Regulation Imposing a restriction on maximum number of quantity of news paper (pages 10) was held to be unreasonable restriction (it can be invalid)

Indian Express Newspaper v/s Union of India (AIR 1986 SC 515)

It was held that newspaper agencies aren’t exempted from the payment of income tax but the govt. must be more careful while imposing tax on such newspaper agencies.

Saroj Iyer v/s Maharashtra M.C.I. (AIR 2002 Bom.)

It was held that a journalist has the right under Art. 19(1)(a) to publish, as a journalist, a faithful report of the proceedings witnessed & heard in the Court.

Restrictions on freedom of Speech & Expression Art.19(2)

On the freedom of press state may impose reasonable restriction under Art.19(2) in the following cases.

1. Security of the state

To maintain the security of the nation.

Ram Nandan v/s State (AIR 1959 All. 101)

Court said that the expression “security of the state” in Art. 19(2) doesn’t merely mean as danger to the security of the entire country. Endangering the security of a part of the state would involve a threat to the security of the state.

1. Public order

To maintain public order law & morality.

1. Friendly relation with foreign State.

To maintain friendly relation with foreign states.

Jugan Nath v/s Union of India (AIR 1960 SC 675)

A commonwealth country was held to be a foreign state for the purpose of Art. 19(2) with view to maintain friendly relations with them.

1. Decency or Morality

To protect the decency or morality, what is morality or immorality is a question of fact which difference from place to place & country to country.

Sect. 292 to 294 of I.P.C. 1860 imposes punishment on publication of indecent or immoral material.

R.Y. Prabhao v/s P.K. Kunte (AIR 1996 SC 113)

Indecency is not confine to sexuality but also extent to other substance or news which makes man distinguish or shocking.

1. Contempt of Court

State may impose restriction on publication which will be a contempt of Court. Thus a person can’t publish anything which will insult the judicial wisdom or dicetum.

1. Defamation

Statement impose restriction on the freedom of press or any news which will defame or will injure to the body, mind & reputation of the person.

Sec. 499 & sec. 500 of I.P.C. 1860 imposes punishment for defamatory statement.

M.H. Devendrappa v/s Karnataka State Industries Development Corporation (AIR 1998 SC 1064)

S.C said that making allegation about mismanagement against the head of the organization & issuing press statement which are false amounts to defamation.

1. Incitement to an offence

This was added by the constitution (First Amendment) Act 1951. It imposes restriction on publication of any news which will instigate the people to committee & offence. This was followed in the case of State of Bihar v/s Shailababa (AIR 1952 SC 329)

1. Integrity & Sovereignty of India

Reasonable restriction may be impose on any news which will disturb the unity, integrity & the sovereignty of the state.

Kedar Nath v/s State of Bihar (AIR 1952 Sc 955)

Court held that sec. 124 A of I.P.C. which puts reasonable restrictions in the interest of public order is saved by Art. 91(2).

From the above discussion it can be said that freedom of speech & expression doesn’t only include right to speak by the mouth but at the same time it includes other aspects as well.

RIGHT TO STRIKES, HARTAL & BANDH

In the process of Industrialization the labour movement was immerge gradually to protect the interest of labourers. Labor movement also gradually develop after 1^st world war & 2^nd world war. International labor organization was set up to maintain the Industrial peace & to protect the interest of the workers world war. India being a signatory of ILO India adopted certain legislative measures for protecting the interest of the workers in colonial period (during the British period as well as after independence.)

Industrial dispute act, 1947 protects the interest of the workers which recognizes certain statutory rights such as right to strike, right to claim compensation to the workers.

Right to strike is also consider to be one of the important right to express one’s feeling to include within a meaning of freedom of speech & expression & to form association. Strike means to stop the continuous of work by the workers & by group of workers.

Although right to strike is consider to be statutory right under the Industrial dispute act but it is not considerable a fundamental right.

Therefore strike in certain cases were held to be illegal.

T.K. Rangarajan v/s Union of India (AIR 2003 SC 3032)

It was held that govt. employees can’t go on strike in case of emergency services.

Harish Uppal v/s Union of India (AIR 2003 SC 739)

Advt. can’t go on strikes if they go on strike state Bar Council can take disciplinary action.

S.C. in Communist Party of India v/s Bharat kumar (AIR 1998 Sc 184) reiterated with approval the decision of the kerala H.C. in Bharat Kumar v/s State of Kerala (AIR 1997 Ker. 291) & laid down that right to call Bandh or hartal can’t be regarded as a fundamental right within the scope of freedom of speech & expression.

It was further observe that political party can’t claim that they have fundamental right to call strike or bandh.

Kerala V.V.E. Saiti v/s State of Kerala (AIR 2000 Ker. 389)

It was held that mere calling Hartal is not illegal but when it is accompanied by public or rights then it becomes injurious.

CHAPTER 6 COMPENSATION JURISPRUDENCE

Introduction

Compensation jurisprudence is concern with the tortuous liability of the state whereby state is held irresponsible for the act of his servant in the course of employment. This is also known as vicarious liability. When a public servant does any act in relation to his employment & cause an injury to other public then govt. is held responsible for the act of his servant on the basis of principle vicarious liability.

In England traditionally speaking state was not held responsible for the acts of its servants. It was base on the principle that “King can do no wrong” Subsequently on crown proceeding Act 1947 whereby govt. was held responsible for the tortuous act of its servants.

Position in U.S.A.

In United State of America tortuous liability of the state is very much restrictive or limited as compel to tortuous liability.

Od the state in U.K.

Position in India

The tortuous liability of the state in India can be discussed under two heads:-

1. Before the commencement of the Constitution.
2. After the commencement of the Constitution.

1. Before

Prior to commencement of Indian constitution British East India Co. didn’t enjoy any immunity from any legal action because their was no master servant relationship between British Empere & British East India co.

P&O Steam Navigation Co. v/s Secretary of State(5 BOM HCR 1861)

Case decided by the Calcutta S.C. the P&O made a claim for damages against the secretary of state for the injury caused to its hoarse, caused on the highway because of it negligence of some workmen employed in the Govt. dockyard. After the Charter of 1833 the company was enacting in the dual capacity as a merchant as well as one exercising sovereign power as a trustee of the Crown in respect of the territorial possession acquired by it. The Secretary of state was held liable for the negligence of the workmen employed.

Test of Sovereign & non-sovereign functions.

It is settled rule that state is held responsible for the act of its servant committed in the course of employment. But it can’t be held responsible for any acts done by its servant were such act is sovereign in nature. In other words if the act done by its servant is a sovereign in nature then state will not be held responsible, whereas if the act is non-sovereign in nature which is purely commercial in nature then state will be responsible for the act of its servant. Maintaining law & order in the society is act of sovereign in nature. In Vidyavati v/s State of Rajasthan Govt. was held responsible for causing an injury by its servant to 3^rd party in the course of employment, but in state of U.P. v/s Kasturilal the govt. was not held responsible for the act of its servant which was sovereign in nature.

Secretary of the state v/s cockraft

In this case of govt. was not held responsible for the damages in respect of sovereign function.

Gurucharan kaur v/s Madraso province (AIR 1942 mad. 539)

Where an action for damages was brought against the govt. for wrongful confinement of the plaintiff by police officers against the govt. for a tort committed by its servants, if at the time of passing such order it was executing sovereign functions.

1. After the commencement of the constitution.

After the commencement of the constitution the govt. was held responsible under Art. 300 in respect of contract as well as in respect of tort.

According to first law commission it was recommended that in respect of the welfare & sovereign function the govt. should not be held responsible for the compensation.

Association Pool v/s Radhabai (AIR 1976 MP 164)

It was held that socio welfare economic function traditional couldn’t be called has sovereign function.

Mysore v/s Ramchandra (AIR 1972 Bom. 93)

In this case the govt. constructed reservoir for the purpose of drinking the water but in doing so it caused damage to the plaintiff it was held that govt. is responsible to pay the compensation.

End of sovereign immunity doctrine

Khatri v/s State of Bihar (AIR 1981 SC 928)

Popularly known as a Bhagalpur blinding case, it was alleged that, the police had blinded certain prisoners & the state was liable to pay compensation to them.

Rudal Shah v/s State of Bihar (AIR 1983 SC 1086)

The court directed the state of Bihar to pay compensation of Rs. 30,000 to the victim as he was kept in jail for 14 yrs. After his acquittal by a criminal court.

Nilabati Behra

The court also recognize the concept of compensatory jurisprudence in the case of Nilabati Behera v/s State of Orissa.

D.K. Basu v/s State of West Bengal (AIR 1997 SC 610)

In this case court recognize the concept of compensatory jurisprudence in relation to custodial Death & held that when an accuse wrongfully dies in the custody then govt. will be liable to pay the compensation.

Chairman Railway Board v/s Chandrima Das (AIR 2000 SC 988)

A Bangladeshi women was gang raped by some railway employees S.C. held that Art. 21 is available even to non-citizens also S.C. upheld the order of H.C. granting the compensation of 10 lakh to the victim. Thus new judicial trend has been visible in the area of tortuous liability of the state.

CHAPTER 7

Art. 21 Right to life & personal liberty.

Right to life is guaranteed by Art. 21 which has received widest interpretation by the judicial in India.

The concept of right to life is taken from American constitution which contains excess provision regarding personal life & liberty. Right to life would mean anything which will make the life meaningful & worthwhile. It is something more than the animal existence. This principle was laid down in the case of Kharak Singh v/s state of U.P. (AIR 1963 SC 1295) with an approval of quotation laid down in the case of Munn v/s Illinois (1877) 94 US page 113.

Art. 21 states that ‘no person shall be deprived of his right to life or personal liberty except according to procedure established by law:

Even Art. 31 of the Japanese Constitution does contain similar provision regarding Right of personal life & liberty. Art. 21 is divided into 2 parts.

1. Ensures the protection of personal life & liberty which is taken from American constitution.
2. Deals with the privatization of personal life & liberty which is taken from Japanese constitution.

By enacting suitable law personal life & liberty of the person can be taken away, for this purpose proper procedure should be followed & such procedure should be just fair & reasonable.

Personal Liberty meaning & scope

It was held that personal life & liberty can be taken away by an executing act in an emergency situation even without following due process of law.

Expanding Horizons of Art. 21

Maneka Gandhi’s case is a landmark case of post emergency period. This case shows how liberal tendencies have influenced by the matter of interpreting fundamental rights, particularly Art. 21.

1. Right to Privacy

State of Maharashtra v/s Amdhulkar Narain (AIR 1991 SC 207)

Court held that even a woman of easy virtue was entitled to right to privacy under Art. 21 of the Constitution & that no one could invade her privacy as & when he liked. Right to privacy is a fundamental right under Art. 21 of the constitution.

1. Right to go abroad:

1. Right to livelihood:

Ollega Tellis v/s Bombay Municipal corpn. (AIR 1986 SC 180)

It was held that right to life would also include right to on day livelihood.

1. Right to live with Dignity

Francis coralie v/s Union Territory of Delhi (AIR 1981 SC 746)

It was held that right to life would include right to live in dignity which will include adequate standard of living & nutritious food.

1. Bonded labour system:-

Bandhu mukti morcha v/s Union of India (AIR 1984 SC 802)

In this case court directed to release bounded labor working in stone quarries & also directed the Haryana govt. to prepare a scheme for the rehabilitation of such bounded laborers.

1. Capital Punishment

It was held that imposing capital punishment or death sentence to murder will not be violation of Art. 21. However such punishment should be impose in rarest of rare case.

Bachan Singh v/s state of Punjab (AIR 1980 SC 898)

Sec. 302 of the I.P.C. dealing with death sentence was not to be unconstitutional.

1. Right to compensation

Right to claim compensation in case of custodial death, unreasonable delay in trial wrongful detention was held to be part of Art. 21.

Nilabhati Behera v/s State of Orissa.

1. Right to medical help

In a welfare state it is a duty of state to provide medical facility to its people. The govt. has to discharge this obligation by running hospitals & health centres to provide medical care to those who need them.

Premand Katara v/s Union of India (AIR 1989 SC 2039)

IT was held that it would be a duty of doctor a govt. hospital or private hospital to provide proper professional service to the patient.

1. Right to education

Unnikrishnan v/s State of A.P. (AIR 1993 SC 2178)

IT was held that right to life would also include right to take education.

1. Right to free Legal Aid

Khatri v/s State of Bihar (AIR 1981 SC 928)

IT was held that right to life would also include right to take legal Aid at the expenses of the state. If the person do not have sufficient source of income.

1. Right against Sexual Harrasment:

Vishakha v/s State of Rajasthan- held sexual harassing a women was held to be violation of Art.21.

1. Right to Speedy Trial

Hussainara Khatoon v/s State of Bihar (AIR 1979 SC 1360)

Unreasonable delay in conducting trial was held to be violation of Art. 21.

1. Right against Hand-Cuffing

Hand-cuffing was consider to be humanity in nature & violation of Art. 21 but the S.C. said that this hand cuffing can be use in exceptional circumstances.

1. Right against Custodial Violence:

Custodial violence & the police torture have been considered as common phenomena in our country.

D.K. Basu v/s state of West Bengal (AIR 1997 SC 610)

It was held that 3^rd degree torture or ill treatment to accuse in Police custody was held to be violation of Art. 21. The SC laid down the guidelines which were required for to be followed by police agencies as while investigating particular crime.

RIGHT TO EDUCATION

In a democratic country as well as in welfare state it is the duty of state to provide adequate education to its people it is a considered to be a part of the fundamental right. It is now settled that education is a basic human right.

Under Art. 45 of the Indian Constitution impose the specific duty on the state to provide free & compulsory primary education within 10 yrs. From the commencement of the Constitution.

Art. 46 also imposes specific duty on the state to improve the educational & economical status of the weaker section.

In Mohini Jain v/s State of A.P. (1993) 3SCC 666

Popularly known as “captivation fee case” it was held that right to education is a part of fundamental right, it was further held that charging unreasonable fee & taking donation was held to be violation of Art. 21.

Unnikrishnan v/s State of A.P. (1993) 1SCC 645

In this case also the court held that right to education would be a part of fundamental right.

Subsequently 86^th Amendment Act 2002 took place in Indian Constitution & Art. 21 A was added now which provides fundamental right to take education to every children between 6 to 14 yrs. Subsequently with a view to comply Art. 21A right to education Act 2000 enacted.

COMMERCIALIZTION OF EDUCATION & ITS IMPACT

Education is an important instrument in personally development of human being. It plays an important role in an economy of country as well as in human development index of a country. According to the report of the Education Commission (Kothari Commission) 1964-66 stated that education only an instrument for bringing revolutionary change of a country without any violence. Although education right is consider to be the fundamental right but it was consider has most neglected right, even during British period opportunity of taking education was not available to weaker section as well as to S.C, S.T. who constituted substantial population of the country. Today one may find number of international school have open in urban area but in villages even primary education is not available.

Today privatization as well as commercialization of educational system is consider to be a major challenge before the India. Due to inability or failure on the part of the govt. in providing effective education today. Most of the private players are entering upon educational field with a commercial motive. Increase in demand for the education has resulted in Industrialization of education most of the politicians have open the educational institute which was basically made for high class people that was resulted denial of opportunity of education to the masses & also resulted in charging of high fees & donation. In Mohini Jain v/s State of Karnataka (1992) 3 SCC 666 the SC held capitation of fees as unreasonable & unjust. The decision of Mohini Jain v/s State of Karnataka was subsequently challenged in Unnikrishnan v/s State of A.P. (1993) 1 SCC 645 wherein the case held that primary education would be a fundamental right whereas professional education would not be a Fundamental right the court further held the private educational institute can charge the higher fees in govt. educational institute. The said judgment clearly reflects the commercialization of education. It was further held that commercialization of education is not permissible & was opposed to public policy & Indian tradition & therefore charging capitation fees was illegal.

In the case of TMA Pai foundation v/s State of Karnataka (AIR 2003 SC 355) the court held that even the process of commercialization of education merit should be considered as important factor the court further directed the govt. to private education.

In the case of P.A. Inamdar v/s State of Maharashtra (AIR 2005 SC 3266) the court took stand & nullify the concept of reservation in private education institution & also allowed to charge their own fees. The said judgment clearly pursues the agenda of privatization as well as commercialization of education. The court held that in a private education institute the state can’t compel the private players to regulate their admission process on the basis of reservation policy & to ignore merit criteria. In this case court observed that imposing reservation in private educational institute as well as minority institute would be a violation of Art. 30 & 19(1)g OF THE CONSTITUTION.

Art. 39 (a) should be regarded as equally fundamental in understanding & interpreting the meaning & content of the fundamental right.

1. Equal justice & free Legal Aid (Art. 39(A))

Hussainara Khatoon v/s State of Bihar (AIR 1979 SC 1369)

Court said that it was held that it would be duty of the state to provide legal aid to poor people at the expenses of the state so has to secure justice to them.

1. Organization of village Panchayats – Art. 40:

The state shall take steps to organize village panchayats & endow them with such powers & authority as may be necessary to enable them to function as units of self govt. In order to implement Art. 40 Major steps has been taken by the Constitution (73^rd Amendment) Act 1992 & the constitution (74^th Amendment) Act 1992 which have inserted Art. 243 to 243 G in the constitution of India.

It deals with reservation seats for women in panchayat election as well as election in local bodies.

1. Art. 41 right to education & public assistance :

In certain cases Art. 41 Ensures public assistance social security & employment on the ground of old age, sickness & disablement.

1. Art. 42 Provision for just & humane conditions of work & maternity relief.

Art. 42 ensures maternity relief to women, with a view to compel its obligation under Art. 42 the govt. enacted the act maternity relief act which provide statutory right to working women to claim maternity benefit from her employer.

1. Art. 43 :- Living wages etc. for workers

Ensures proper wage as well as proper working condition to all workers working in a different field.

Bijay Cotton Mills Ltd. v/s State of Ajmer (AIR 1955 SC 33)

Court held that, the fixation of minimum wages of labourers under the minimum wages Act, 1948 was in the interest of general public & therefore not violative of the freedom of trade, secured to the citizens under Art. 19(1) (g)

1. Art. 43(A) Participation of workers in management of industries

Art. 43(A) ensures it imposes duty on the state to adopt certain suitable legislative measures which will ensure the participation of workers in the management of co. & industry. Industry can be effectively only when workers participation is recognized.

1. Art. 44 Uniform Civil Code for the Citizens

The state shall Endeavour to secure for the citizens a Uniform Civil Code Throughout the territory of India. Although the govt. has taken steps ensuring Uniform Civil Code in certain fields of law such as in the field of Civil law, Criminal law but in the field of personal law even today there is no uniform civil code.

Sarla Mudgal v/s Union of India (1995 SC 1531)

The S.C. express the view that the uniform civil code is a necessarily of the present century.

1. Art. 45

Ensures free and compulsory primary education to child between 6 to 14 yrs.

1. Art. 46

Imposes duty on State to promote educational & economical interest of S.C., S.T. & to other weaker sections.

1. Art. 47

Imposes duty on state to ensure the adequate standard of living & to improve the health of its people.

1. Art. 48

Imposes duty on state to protect preserve agricultural component & animals which are useful to mankind. It also prohibits the cow slaughtering Mohammed Quareshi v/s state of Bihar(AIR 1958 SC 731)

Court held that, slaughter of cow on Bakri Id day is not a part of freedom of religion of Muslim. By implementing Art.48 Court said that, it is duty of everybody to organize agriculture & animal husbandry on modern & scientific lines.

1. Art. 48(A)

Art. 48(A) imposes duty on state to protect & preserve environment as well as wild life.

1. Art. 49 Prof. Art. 49

Protection of monuments & places of & objects of national importance also imposes duty on state to protect the places which has brought historical importance.

1. Art. 50 Separation of judiciary from executive their ensure doctrine of separation of power between executive & judiciary.

It provides that state shall take necessary steps for ensuring separation of power between executive & judiciary.

M.M. Gupta v/s state of J&K (AIR 1982 SC 1579) held Art. 50 ensures independence of judiciary which is regarded has basic structure of Indian Constitution & the same can’t be amended easily in Art. 368.

1. Art. 51 – Promotion of international peace & security imposes duty on state to promote international peace, to respect international treaty & laws & encourage settlement of dispute by international arbitration.

Vishakha v/s State of Rajasthan (AIR 1997 SC 3011)

In this case court took into a/c the international treaty in order to prevent & prohibit he sexual harassment of women.