Fundamental Rights


Doctrine of Reasonable Classification

Article 14 forbids class legislation. It does not forbids reasonable classification of object and transactions by the Legislature for the purpose of achieving specific ends. Classification to be reasonable should fulfil the following two tests;

  • It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from other left out of it.
  • The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question. [Laxmi Khandsari v. State of Uttar Pradesh (AIR 1981 SC 87)]

What is however necessary is that there must be a substantial basis for making the classification and that there should be a nexus between the basis of classification and the object of the statute under consideration. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved. Therefore, mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract Article 14, it is necessary to show that the section or differentiation is unreasonable or arbitrary. That it does not rest on any rational basis having regard to object which the Legislature has in view in making the law in question. In Jaila Singh v. State of Rajasthan, [AIR 1975 SC 1436], the Supreme Court has explained; “the differentia which is the basis of the classification and the act are distinct things and what is necessary is that there must be a  nexus between them.

In State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312, following points were established;

  • Constitutionality of a statute and scope of judicial review

Where provision enacted by State Legislature is not discriminatory, it can not be struck down on the ground that it was arbitrary and irrational.

  • Presumption of the constitutionality of the statute

Presumption is always in favour of constitutionality of an enactment in the field of taxation. Legislature enjoys greater latitude of classification.

  • Test of permissible classification

Two condition must be fulfilled, namely,

  • The classification must be founded on an intelligible differentia which distinguishes persons or things that are together from other left out of the group, and
  • Such differentia must have rational relation to the object sought to be achieved by the statute in question.

The Court further stated that classification might be founded on different basis, namely, geographical, or according to object or occupations or the like and what is necessary it that there must be a nexus between the basis of classification and the object sought to be achieved.


Doctrine of Arbitrariness

Arbitrariness is the quality of being “determined by chance, whim, or impulse, and not by necessity, reason, or principle”.

Arbitrary decisions are not necessarily the same as random decisions. For example, during the 1973 oil crisis, Americans were allowed to purchase gasoline only on odd-numbered days if their license plate was odd, and on even-numbered days if their license plate was even. The system was well-defined and not random in its restrictions; however, since license plate numbers are completely unrelated to a person’s fitness to purchase gasoline, it was still an arbitrary division of people.

In the case of Andhra Pradesh Dairy Development Corporation Federation v. B. Narassimba Reddy [(2011) 9 SCC 286], it was held that it is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequately determining a principle, rational and has been done according to reason or judgment and certainly does not depend on the will alone. However, the action of the legislature, violative of Article 14 of the constitution, should ordinarily be manifestly arbitrary. There must be a cased of substantive unreasonableness in the statute itself for declaring the act ultra vires Article 14 of the Constitution.

Read: The modern concept of definition of state under Article 12 of the Constitution

In Karnataka State Forest Industries Corporation v. India Rockes [(2009) 1 SCC 150], the Court held that it would not enforce the terms of a contract qua contract but if the action of the State is arbitrary or discriminatory and violates Article 14, a writ of mandamus or any other appropriate writ may be issued.

In Michigan Rubber (India) Ltd v. State of Karnataka, [92012) 8 SCC 216], it was held that;

  • The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
  • Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Court is very limited;
  • In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be considered to the State authorities unless the action of the tendering authority is found to be malicious and misuse of its statutory powers, interference by Court is not warranted;
  • Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resource to successfully execute the work; and
  • If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government.

The modern concept of definition of state under Article 12 of the Constitution

Article 12 of the Constitution reads as under;

            “In this part unless the context otherwise requires “the State” includes the (1) Government and Parliament of India and the (2) Government and the legislature of each State or (3) all Local or (4) other authorities within the territory of India or under the control of the Government of India.”

The restrictive interpretation of principle of ejusdem generis was mentioned in University of Madras v. Shantha Bai, [AIR 1954 Mad 67], the Madras High Court held that other authorities could only indicate authorities of a like nature i.e, ejusdem generis. So construed, it could only mean authorities exercising Governmental or Sovereign function. This restrictive interpretation of Madras High Court was rejected by the Supreme Court in Ujjambai v. State of U.P. [AIR 1962 SC 1621]. It was held that ejjusdem generis rule could not be resorted in interpreting this expression as there is no common genus running through these named bodies in Article 12 nor can these bodies be so placed in one single category or any rational basis.

In Electricity Board Rajasthan v. Mohan Lal, [AIR 1967 SC 1857], a narrow interpretation was done by the Supreme Court in earlier cases was refuted.

Read: Whether judiciary is state under Article 12 of the Constitution?

The modern concept of State given by Justice Matthew was finally summarised by Justice P.N. Bhagwati in R.D. Shetty v. Airport Authority, [AIR 1979 SC 1628], where is was held that if a body is an agency or instrumentality of Government it may be an “authority” within the meaning of Article 12 whether it is a statutory corporation, a Government Company or even a registered Society. the Court laid down the following tests for determining whether a body is an agency or instrumentality of the Government.

  • Financial resources of the State in the chief funding source.
  • Existence of deep and pervasive State control.
  • Functional character being governmental in essence i.e, if the functions of the corporation are of public importance and closely related to governmental function.
  • If a department of government is transferred to a Corporation.
  • Whether the corporation enjoys monopoly status which is State conferred or State protected.

The Court said these tests are not conclusive but illustrative only and will have to be used with care and caution.

Some landmark judgment in defining State under Article 12 of the Constitution of India

In Ajay Hasia v. Khalid Mujib [AIR 1981 SC 487], it was held that a society registered under the Societies Registration Act, 1898 is an agency or instrumentality of the State and hence a State within the meaning of Article 12.

In M.C. Mehta v. Union of India [AIR 1987 SC 1086], without deciding the question, finally in an unanimous opinion of the Supreme Court, Chief Justice P.N. Bhagwati has advanced, strong arguments for including the non-government companies within the meaning of “State”, if for reasons of State control of registration & the kind of public function they are performing satisfy the test of being an instrumentality or agency of the Government. Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression “state”.

In Lt. Governor Delhi v. V.K. Sodhi [(2007) 10 SCALE 41], it was held that the entity which is under Article 12 does not become the State Government. The employees of such body are not holders of civil post or employees of the State Government.

In Pradeep Kumar Biswas v. Indian Institute of Chemical biology, the seven Judge Bench by majority 5:2 overruled Sabhajit tewary case relying upon the instrumentality or agency test formulated in Ajay Hasia, the Court observed as under;

            “Not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be, whether in the light of the cumulative facts as established, the body is financially, functionally and administrative dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within the Article 12. On the Other hand, when the control is merely regulatory whether under or otherwise, it would not serve to make the body a State.’

In Rajasthan SEB v. Mohan Lal and Sukhdev Sinngh v. Bhagat ram Sardar Singh Raghuvanshi, the Supreme Court noticing the socio-economic policy of the country thought it fit to expand the term “other authorities” to include bodies other than statutory bodies. The development of law of judicial interpretation culminated in the judgment of the seven Judge Bench in the case of Pradeep Kumar Bishwas case. it has also been noted that in the meantime the socio-economic policy of the Government has changed and the State is today distancing itself from commercial activities and concentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdev Singh case is not in existence at least for the time being. It shall be borne in mind that in a democracy there is a dividing line between a State enterprise and a non-state enterprise, which is distinct, and the judiciary should not be an instrumental to erase the said dividing line unless required.



Whether judiciary is state under Article 12 of the Constitution?

The judiciary although an organ of the State like Executive and Legislature is not specifically mentioned in Article 12. So the question often arises whether or not judiciary is state under Article 12. What if the Court violates the Fundamental Right enshrined in our constitution with utmost care. The controversy over this matter often arises whether the omission is deliberate or not. The judiciary over this question have come to conclusion that the omission of not including judiciary under Article 12 is deliberate.

Read: When does the differentiation become unreasonable under Article 14 ?

Judiciary can come under the umbrella of State or not it depends upon the distinction between the judicial and non judicial functions of the Courts. If the Court is exercising non judicial functions, in the exercise of its statutory rule making powers and makes rules which contravenes the Fundamental Rights of the citizens, the remedy is available under Article 32 and 226. So under this function Judiciary is a State. The non-judicial function can be statutory-rule making power or appointment of officer etc. but when the Court is exercising its judicial function then what it purports to do is to decide the controversy or to determine scope of Fundamental Right vis-a-vis legislative and Executive action. Then under this case even if it reaches to wrong determination it does not constitute breach of Fundamental Rights as they are competent to make a right or wrong decision. The remedy against such a mistake is not in alleging violation of the Fundamental Rights but to approach the appropriate Court with such allegation in appeal and when the Court is the Supreme Court, then there is remedy of review jurisdiction of the Supreme Court.

In Narersh S. Mirajkar v. State of Maharastra [AIR 1967 SC 1], it was decided that even if a Court is State, a writ under Article 32 can’t be issued to the High Court of competent jurisdiction against its judicial order because such order cannot be said to violate the Fundamental Rights. What the judicial decision purports to do is to decide the controversy between the parties and nothing more.

In A.R. Antulay v. R.S. Nayak [AIR 1988 SC 1531], it was held that the Court could not pass an order or issue a direction which would be violative of Fundamental Rights so, it can be said that the expression “State includes judiciary also. If we include judiciary in “State”, then it will lead to multiplicity of proceeding by raising violation of Fundamental Rights, first in appeal and then in writ proceedings (negative implication of inclusion of Judiciary in State). Another point is that, however, by inclusion of Judiciary in Article 12 the Court will become obliged to enforce DPSP also as Article 36 will bind then as much as Legislature and Executive. But as a guardian of the Constitution, the Court must be duty bound to give effect to DPSP as to Fundamental Rights irrespective of their inclusion of State.


Remembering landmark judgment I.R. Coelho (dead) by LRs v. State of T.N. (2007)

The Hon’ble Supreme Court considered the fundamental question that whether on and after 24th April, 1973, when basic structure doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislation from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court.

The Hon’ble Supreme Court held that;

  • A law that abrogates or abridges rights guaranteed by Part III of the constitution may violate the basic structure doctrine or may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the court. The validity of invalidity would be tested on the principles laid down in this judgment.
  • The majority judgment in Kesavanand Bharati’s case read with Indira Gandhi’s Case, requires the validity of new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroy basic structure. The impact test would determine the validity of the challenge.
  • All amendment to the constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the constitution as reflected in Article 21 read with Article 14, Article 19, and the principle underlying them. To put it differently even though the act is put in Ninth Schedule by the Constitutional Amendment , its provision would be open to attack on the ground that they destroy or damage the basic structure if fundamental right/s taken away or abrogated pertains or pertain to the basic structure.
  • Justification for covering protection, not blanket protection, on the law included in ninth Schedule by Constitutional Amendments shall be matter of constitutional adjudication by examining the nature and extent of infraction of the fundamental right by s statute, sought to be constitutionally protected, and touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “right test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s Case. Applying the above test to the Ninth Schedule laws, if the infraction affects the basic structure then such a law/s will not get protection of the Ninth Schedule.

Read: Whether judicial order can violate Article 21 of the Constitution

This was the answer of the Hon’ble Court to the question referred, whether the Parliament can immunize legislation from the fundamental rights by inserting them into the grand Ninth Schedule and if so, what is its effect on the power of judicial review of the court.

If the validity of any Ninth Schedule law has already been upheld by the Hon’ble Court, it would not be open to challenge such law again on the principles declared under the I.R. Coelho. However, if the law held to be violative of any rights in Part II is subsequently incorporated in the Ninth Schedule after 23 April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14 and Article 19 and the principles underlying thereunder.[1]

[1] I.R. Coelho (dead) by LRs v. State of T.N. (2007) 2 SCC 1


Relationship between directive principles of state policy and fundamental rights

Initially, the courts adopted a strict and literal legal position in this respect. The Supreme Court adopting the literal interpretative approach to Article 37 ruled that a Directive Principle could not override a Fundamental Right, and, that in case of conflict between the two, the Fundamental Right would prevail over the Directive Principles.

This point was settled by the Supreme Court in State of Madras v. Champakam Dorairajan AIR 1951, where a government order in conflict with Article 29 (2), a Fundamental Right, was declared invalid, although the government did argue that it was made in pursuance of Article 46, a Directive Principle. The Court ruled that while the Fundamental Rights were enforceable, the Directive Principle were not, and so the laws made to implement Directive Principle could not take away the Fundamental Rights. The Directive Principle should confirm and run as subsidiary to the Fundamental Rights.

In the course of time, a perceptible change came over the judicial attitude on this question. The Supreme Court came to adopt the view that although Directive Principle, as such, were legally non-enforceable, nevertheless, while interpreting a statute, the courts could look for light to the lode star of the directive Principle. The Courts therefore could interpret a statute so as to implement Directive Principle instead of reducing them to mere theoretical ideas.

Read: The Scope of Right to live with dignity is not only to the living but also to his dead body

In Kesavananda Bharati v. State of Kerala AIR 1973 it was observed that the Fundamental Rights and Directive Principles constitute the conscience of the constitution. There is no antithesis between the fundamental Rights and Directive Principles and one supplements the other.

The Supreme Court in landmark judgment of Minerva Mills v. Union of India AIR 1980 said that the Fundamental Rights are not an end in themselves but are means to an end. The end is specified in the Directive Principles. Fundamental Rights and Directive Principles together constitute the core of commitment to social revolution and they together are the conscience of the constitution. the Indian Constitution is founded on the bedrock of the balance between the two. to give absolute primacy to one over the other is to disturb the harmony of the constitution. This harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure of the constitution.

Read: Fundamental Right on Subjective Satisfaction of the Executive

The Supreme Court further argued in Olga Tellis v. Bombay Municipal corp. AIR 1986  that since the Directive Principles are fundamental in the governance of the country they must, therefore, be regarded as equally fundamental to the understanding and interpretation of the meaning and content of Fundamental rights.


How the Burden of Proof shifts under Article 32

Written by: Shivam Kumar Gupta

Generally, in the cases of the fundamental rights infringement, the right of onus falls on the petitioner but there are many categories which arose due to the interpretation of this Article where the onus shifts also.

In Deena v. Union of India,[ AIR 1983 SC 1146 ], it was held that the question as to on whom the burden of proof lies would depend upon the particular fundamental right of the petitioner alleged to have been violated by the impugned provision and the same rule of burden of proof will not apply to all constitutional challenges. As regard the cases arising under Article 14, the question whether there are other persons who are situated similarly as the petitioner and whether the petitioner is subjected to hostile discrimination are questions of fact and, therefore, the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and the treatment meted out to the petitioner is not hostile. But, as regards the cases arising under the Article 19 and 21, once the petitioner shows violation of any or both of those Articles, which is not really part of burden of proof or when the violation is apparent, it is for the State to justify the impugned law or action.

“In Habeas Corpus petition, if the petitioner alleges that he is unlawfully detained, the burden to prove that his detention is lawful is on the State to satisfy the court that the detention of the detenu was legal and in conformity not only with the mandatory provisions of the Act, but also strictly in accordance with the Constitutional safeguards embodied in Article 22(1)” in Mohinuddin v. Dt. Magistrate, [AIR 1987 SC 1977].

Read: When does the differentiation become unreasonable under Article 14 ?

“In the case of writ of mandamus, the applicant must show that he has a legal right to compel the opponent to do or refrain from doing something, i.e., there must be in the applicant a right to compel the performance of some duty cast on the opponent” in State of Madhya Pradesh v. V.G.C. Mandawar, [ AIR 1954 SC 493 ]

In the case of writ of quo warranto, the petitioner has to plead with full and detailed particulars explaining why the person is not qualified to the post, who must also be made a party to the proceeding. On prima facie proof adduced by the petitioner, the burden is shifted to the respondent to convince that he is holding the office lawfully and that he is duly qualified to hold the post”, in State of Haryana v. Haryana Co-operative Transport Ltd., [ AIR 1977 SC 237] and University of Mysore v. Govinda Rao, [ AIR 1965 SC 491].


The Scope of Right to live with dignity is not only to the living but also to his dead body

“As more men become more educated and women get educated, the value system has to be more enhanced and the respect for human dignity and human life is made better”.

– Ellen Johnson Sirleaf

Written by- Shivam Kumar Gupta

Article 21 of the Constitution of India which provides “No person shall be deprived of his life and liberty except according to procedure established by law.” The procedure established by law should be as per the natural justice, and be fair, just and reasonable.

 This right which got the right to live with dignity as in case of Maneka Gandhi v. Union of India, [AIR 1978 SC 597: (1978) 1 SCC 248], it was observed that this fundamental rights represents the basic values cherished by the people of their country since Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.

The term ‘living’ does not merely means to physical survival or existence but also includes having the adequate means of living which includes the food, water, education, shelter, and decent environment.

As the ‘right to life’ includes the right to ‘live with human dignity’ which means that this right is going to exist up to the end of the natural life. This also includes the ‘dignified procedure of death’. Right to life should not be confused with the right to die, there is no such right to die in the scope of Article 21.

The scope of the Right to live with human dignity is not only to a living man but also to his dead body which came in the case of Paramanand Ketara v. Union of India, [ AIR (1995) 3 SCC 248 ] and also applies to the homeless deceased, this principle came in case of Ashray Adhikar Abhiyam v. Union of India, [AIR 2002 SC 554 : (2002) 2 SCC 27].

The Preamble in International Covenant as Civil and Political Rights, 1966 (ICCPR) and International Covenant of Economics, Social and Cultural Rights, 1966, (ICESCR) talks about the recognition of the inherent dignity and of the equal and inalienable rights of all members of this human family is the foundation of freedom, justice and peace of the world. Article 10(1) of the ICCPR proclaims: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

It was also there that any violation of the woman society in the country in body or body leading to justifiable unhappy existence is bound to attract Article 21. The beauty contests tend to offend the dignity of a woman to deal with her indecency and would offend Article 21. This came in the case of Chandra Rajkumari v. Police Commr., Hyderabad,[ AIR 1998 AP 302]  as “ Beauty Contests repugnant to dignity or decency is violation of Article 21 and 51A”