Tag: Fundamental Right

8
Jul

Landmark Judgments on Article 14 (Right to Equality) with ratio

Landmark Case Laws

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Motor General Traders v. State of A.P., (1984) 1 SCC 222, 229, 230.

Nature, Scope and Object.— The equality clause contained in Article 14 requires that all persons subjected to any legislation should be treated alike under like circumstances and conditions. Equals have to be treated equally and unequals ought not to be treated equally. While that article forbids class legislation, it does not forbid classification for purposes of implementing the right of equality guaranteed by it. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. While the classification may be founded on different bases what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration,

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 Reasonable Classification

R.K. Garg v. Union of India, (1981) 4 SCC 675, 689-90.

 

Reasonable Classification.— The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act, R.K. Garg v. Union of India, (1981) 4 SCC 675, 689-90.

If illogical, unfair and unjust then classification is unreasonable, Deepak Sibal v. Punjab University (1989) 2 SCC 145.

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, 740, 741.

Any arbitrary or unreasonable action of an ‘authority’ under Article 12, would be violative of Article 14. What Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality, Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, 740, 741.

 

Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116.

Classification may result in inequality if it ignores pre-existing inequality, Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116.

Manmad Reddy v. Chandra Prakash Reddy, (2010) 3 SCC 314 : (2010) 1 SCC (L&S) 1169.

A classification must be truly founded on substantial differences that distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. The Court always has to bear in mind the facts and circumstances of the case in order to judge the validity of a classification, B. Manmad Reddy v. Chandra Prakash Reddy, (2010) 3 SCC 314 : (2010) 1 SCC (L&S) 1169.

Food Corporation of India v. Bhartiya Khadya Nigam Karamchari Sangh, (2012) 2 SCC 307.

Classification between employee obtaining higher qualification after joining service and an employee already in possession of such qualification before joining service bears just and rational nexus to the object sought to be achieved and does not amount to discrimination offending Arts. 14 and 16, Food Corporation of India v. Bhartiya Khadya Nigam Karamchari Sangh, (2012) 2 SCC 307.

Kallakkurichi Taluk Retired Officials Assn. v. State of T.N., (2013) 2 SCC 772 : (2013) 2 SCC (L&S) 452.

A valid classification is truly a valid discrimination based on a just objective. Result to be achieved by the just objective presupposes choice of some persons for differential consideration/treatment over others. Whenever a cut-off date is fixed to categorise one set of employees for favourable consideration over others, twin test for classification viz. distinction should be based on classification founded on intelligible differentia which has a rational relationship with just objective sought to be achieved, must be satisfied, Kallakkurichi Taluk Retired Officials Assn. v. State of T.N., (2013) 2 SCC 772 : (2013) 2 SCC (L&S) 452.

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State of Maharashtra v. Indian Hotel & Restaurants Assn., (2013) 8 SCC 519 : (2013) 4 SCC (Cri) 345 : (2013) 4 SCC (Civ) 1.

Presumption that enjoyment of same kind of entertainment by upper classes leads only to mere enjoyment and in the case of poor classes, leads to immorality, decadence and depravity. Classification based on presumption that performance of an identical dance in establishments having facilities less than a three-starred hotel would be derogative to the dignity of women and would be likely to deprave, corrupt or injure public morality or morals, but would not be so in exempted establishments is discriminatory. Presumption is elitist, invidious and totally untenable under the Constitution, State of Maharashtra v. Indian Hotel & Restaurants Assn., (2013) 8 SCC 519 : (2013) 4 SCC (Cri) 345 : (2013) 4 SCC (Civ) 1.

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Rights of women

Vishaka v. State of Rajasthan, (1997) 6 SCC 241

Rights of women.— Working women have a right to work with dignity and safe from sexual harassment. , .

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Fairness and Reasonableness

Central Inland Water Transport Corpn.v. Brojo Nath Ganguly, (1986) 3 SCC 156.

Fairness and Reasonableness.— Contracts which are unconscionable, unreasonable, unfair and against principles of distributive justice and public policy are violative of Article 14,  States’ contracts with private parties also governed by Article 14. It has to act justly, fairly and reasonably even in contractual field, Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212.

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Exercise of discretion

Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

Exercise of discretion.— Where unguided and unfettered discretion is conferred on any authority, whether it be the executive or the judiciary, it can be exercised arbitrarily or capriciously by such authority. There can be no equal protection without equal principles in exercise of discretion whether vested in the executive or in the judiciary,

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Principles of Natural Justice

H.L. Trehan v. Union of India (1989) 1 SCC 764.

Principles of Natural Justice.— Observance of rules of natural justice is a requirement of Article 14 and so must be observed unless expressly excluded,

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Nature and Object of Article 14

Nature and Object.— Art. 14 also inhibits treating unequals as equals, All India Sainik Schools Employees’ Assn. v. Sainik School Society, 1989 Supp (1) SCC 205; Builders Assn. v. Union of India, (1989) 2 SCC 645; Direct Recruit Cass II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715; Prem Chand Somchand Shah v. Union of India, (1991) 2 SCC 48; Finance Deptt. v. W.B. Registration Service Assn., 1993 Supp (1) SCC 153.

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Arbitrariness

Railway v. Mahadev Appa Rao, (2010) 7 SCC 678 : (2010) 2 SCC (L&S) 483.

Arbitrariness.— There is no precise statutory or other definition of the term “arbitrary”. Arbitrariness is the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making an order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained, is clearly suggestive of the order being arbitrary hence legally unsustainable, East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678 : (2010) 2 SCC (L&S) 483.

 

Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.

Article 14 strikes arbitrariness because an action that is arbitrary, must necessary involve negation of equality. The doctrine of classification which is evolved by courts is not paraphrase of Article 14 nor is it the objective or end of the Article. It is merely judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Therefore, wherever there is arbitrariness in State action whether it be of legislative or executive or of an ‘authority’ under Article 12, Article 14 immediately springs into action and strikes down such state action,

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Reservation

Union of India v. Rakesh Kumar, (2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961.

Reservation.— Reservation of seats under Articles 15(4) and 16(4) for socially and educationally backward classes (SEBCs) is an example of “proportionate representation”. Principle of “adequate representation” is adopted when it is found that a particular community is under-represented and measures are taken to achieve desired level of representation. Reservation of one-third seats for women in Panchayats in Part IX, is an embodiment of “adequate representation”. Reservation of 50% seats for STs in Panchayats in Scheduled Areas is an example of “compensatory discrimination”,

Ram Singh v. Union of India, (2015) 4 SCC 697.

Self-proclamation and claim of a community of backwardness based on perception of advancement of other classes to seek protection as less fortunate is not constitutionally permissible. Inclusion of Jat community in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand, unconstitutional.

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Equality

Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404.

Equality.— Like should be treated alike as absolute equality might lead to inequality, Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404.

  1. Nagrajv. Union of India, (2006) 8 SCC 212.

Equality is the basic feature of Constitution. The content of Article 14 was originally interpreted by the Supreme Court as a concept of equality confined to aspects of discrimination and classification. The content of Article 14 got expanded conceptually so as to comprehend the doctrine of promissory estoppel, non-arbitrariness, compliance with rules of natural justice, eschewing irrationality etc., M. Nagraj v. Union of India, (2006) 8 SCC 212.

Hari Ram v. State of Haryana, (2010) 3 SCC 621 : (2010) 1 SCC (Civ) 787.

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Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

Equality of citizens’ rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of State have to be fair and for legitimate reasons,  Right to equality before law, is secured from all legislative and executive tyranny by way of discrimination,

ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

For attainment of equality before the law and equal protection of the laws, regardless of religion, caste, community, faith, etc. interpretation of general/secular law of the land must in such a manner as to attain parity in rights/entitlements of persons of one religious group standing disadvantaged when compared with their counterparts from another religious group. There is disadvantaged position of Christian unwed mothers vis-a-vis Hindu counterparts in India. An unwed mother in India can apply to become the sole guardian of a child, without going notice to the father of the child and without disclosing his identity,

Adi Saiva Sivachariyargal Nala Sanga v. Govt. of T.N., (2016) 2 SCC 725.

Appointments of Archakas in temples will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with the Constitutional mandates and principles,

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Public Interest

Centre for Public Interest Litigation and Others v. Union of India and Others, (2012) 3 SCC 1.

Public Interest.— Public interest, is to be primary consideration for dispensation/ allocation of natural resources by State. Distribution process must be fair and transparent affording equal opportunity to all interested parties (subject to competition amongst market players).

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Distribution of Natural Resources

Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

 

Distribution of Natural Resources.— Where revenue maximisation is object of policy, auction would be one of the preferable methods, though not the only method. Auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement for alienation of all natural resources. Hence, every method other than auction cannot be struck down as ultra vires the Constitution, even if there might be a potential for abuse, as potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. Furthermore, court cannot conduct a comparative study of various methods of distribution of natural resources and suggest the most efficacious mode. It respects mandate and wisdom of executive in such matters. Methodology pertaining to disposal of natural resources is clearly a matter of economic policy which entails economic choices, and court lacks necessary expertise therefor. Hence, there can be exceptions to auction: ultimate test being fairness of decision-making process and strict compliance with Article 14. However, a blithe deviation from public disposal of resources would not be tolerable. Such deviation must be justified by compelling reasons and not just convenience, Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

When a policy decision to allienate/allocate natural resources is not backed by a social or welfare purpose, and precious and scarce resources are alienated for commercial pursuits of profit maximising private entrepreneurs (i.e. crony capitalism), adoption of means other than those that are competitive and maximise revenue may be held arbitrary to face wrath of Article 14.

Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

There is no constitutional imperative in the matter of economic policies. Article 14 does not predefine any economic policy as a constitutional mandate. Even mandate of Article 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term “distribution”, suggesting that the methodology of distribution is not fixed.

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Policy Decisions

Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat, (2014) 4 SCC 156.

Policy Decisions.— It is open to the State and the authorities to take economic and management decisions depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. If every decision taken by the State is tested by a microscopic and a suspicious eye, administration will come to a standstill and the decision-makers will lose all their initiative and enthusiasm, Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat, (2014) 4 SCC 156.

Common cause v. Union of India, (2015) 7 SCC 1.

Guidelines for content regulation for government advertising, issued, Common cause v. Union of India, (2015) 7 SCC 1.

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Duty of State

K.C. Bajaj v. Union of India, (2014) 3 SCC 777.

Duty of State.— State cannot arbitrarily pick and choose from amongst similarly suited persons, to pursue legal proceedings against some and not to do so consciously against others. Such an approach would be ex facie arbitrary, unjust and violative of Art. 14, K.C. Bajaj v. Union of India, (2014) 3 SCC 777.

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Public Functions

Board of Cricket Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251.

Public Functions.— BCCI even though not a ‘State’ under Art. 12 does perform certain public functions like selection of the team to represent the country in international arena and has a complete sway on the game of cricket which make it amenable to the Writ Jurisdiction of the High Court under Article 226, Board of Cricket Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251.

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Discretionary Power

State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.

Discretionary Power.— A law conferring absolute or uncontrolled discretion in an authority negates the protection given under Article 14, State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.

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Single class classification

Charanjit Lal Choudhary v. UOI, AIR 1951 SC 41.

Single class classification.— A single institution is capable of being treated as a class by itself for the purpose of legislation if there are special circumstances or reasons which are applicable to that institution and such legislation would not include the wrath of Article 14, Charanjit Lal Choudhary v. UOI, AIR 1951 SC 41.

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Right to safety against crime

Youth Bar Assn. of India v. Union of India, (2016) 9 SCC 473 : (2016) 3 SCC (Cri) 691.

Right to safety against crime.— The Supreme Court directed that the copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, Youth Bar Assn. of India v. Union of India, (2016) 9 SCC 473 : (2016) 3 SCC (Cri) 691.

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Protection/Remedies/Reliefs afforded by the Act

Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.

Protection/Remedies/Reliefs afforded by the Act.— Supreme Court struck down the words “adult male” before the word “person” in Section 2(q) of Domestic Violence Act, 2005 holding that these words discriminate between persons similarly situated, and is contrary to the object sought to be achieved by the Domestic Violence Act. Thus remedies under 2005 Act are available even against a female member and also against non-adults, Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.

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Equality in matters of public employment

State of U.P. v. Anand Kumar Yadav, 2017 SCC OnLine SC 792.

Equality in matters of public employment.— The appointment of 1.78 Lakh Assistant Teachers (Shiksha Mitras) in Junior Basic Schools, quashed. The Shiksha Mitras cannot be regularized as teachers as the appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers, State of U.P. v. Anand Kumar Yadav, 2017 SCC OnLine SC 792.

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Mandatory seeding of Aadhaar numbers in PAN database

Binoy Viswam v. Union of India, (2017) 7 SCC 59.

Mandatory seeding of Aadhaar numbers in PAN database.— Obligation of all assessees to provide Aadhaar number or enrolment ID of Aadhaar application form while applying for PAN or while filing income tax return does not violate Arts. 14 or 19(1)(g) of the Constitution, Binoy Viswam v. Union of India, (2017) 7 SCC 59.


 

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8
Jul

PCS (J) Notes: Constitutional Law, Art 19, freedom of speech with relevant case laws

Right to Freedom

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  1. Protection of certain rights regarding freedom of speech, etc.— (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions 16[co-operative societies];

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; 17[and]

(f18[* * *]

(g) to practise any profession, or to carry on any occupation, trade or business.

19[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 20[the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.]

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 21[the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 22[the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in 23[sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 24[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise].

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CASE LAW

Constitutionality of.— Section 66-A of the Information Technology Act, 2000 declared unconstitutional for being violative of Article 19(1)(a) and not saved under Article 19(2) of the Constitution, Shreya Singhal v. Union of India, (2015) 5 SCC 1.

Freedom of Speech and Expression.— Free Speech is the foundation of a democratic society. A free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one’s own views and expressing them, are the basic indicia of a free society. This freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner. Restraints on this right, therefore, have been jealously watched by the courts. Article 19(2) spells out the various grounds on which this right to free speech & expression can be restrained, Union of India v. Motion Picture Assn., (1999) 6 SCC 150.

Basis of the right to know of a citizen about government decisions and actions has been derived from freedom of speech, it is a fundamental right which is subject to overriding interest of public security and secrecy, Dinesh Trivedi v. Union of India, (1997) 4 SCC 306.

Freedom of Speech & Expression guaranteed under Article 19 (1)(a) means the right to express one’s convictions and opinions freely by word of mouth, printing, picture, or in any manner. When a person is talking on telephone, he is exercising his right to freedom speech & expression. Telephone tapping unless it comes within grounds of restrictions under Article 19(2) would infract Article 19(1)(a), PUCL v. Union of India, (1997) 1 SCC 301.

Freedom of expression has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters, Indian Express Newspapers v. Union of India, (1985) 1 SCC 641.

In the name of artistic freedom or critical thinking or generating the idea of creativity, a poet or a writer cannot put into the voice or image of a “historically respected personality” like Mahatma Gandhi, such language, which may be obscene, Devidas Ramachandra Tuljapur v. State of Maharashtra, (2015) 6 SCC 1.

Freedom of Press.— Means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest, Indian Express Newspapers v. Union of India, (1985) 1 SCC 641.

Right of Broadcasting.— Right of broadcasting/telecasting include rights of listeners/ viewers, Min. of Information and Broadcasting v. Cricket Assn. of Bengal, (1995) 2 SCC 161.

Freedom of Trade.— Right of hawkers to ply trade on pavements included subject to regulation, Sodan Singhv. NDMC, (1989) 4 SCC 155 and (1992) 2 SCC 458; (1993) 3 SCC 178.

Reasonable Restrictions.— The expression “reasonable restriction” signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Article 19(6), it must be held to be wanting in that quality, Bishambhar Dayal Chandra Mohan v. State of U.P., (1982) 1 SCC 39, 62. See also (1986) 3 SCC 20.

Right to know.— Right to know and access information is implicit in right to free speech and expression guaranteed under Article 19(1)(a), M. Nagaraj v. Union of India, (2006) 8 SCC 212.

Voters have right to know about educational qualification of candidate contesting election, Mairembam Prithviraj v. Pukhrem Sharatchandra Singh, (2017) 2 SCC 487.

Right to Impart Education.— Right to impart education is a fundamental right under Article 19(1)(g), subject to control by Article 19(6), P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537.

Trade in Liquor.— Trade in liquor is not a fundamental right. It is a privilege of State, which it parts with for revenue consideration. Moreover, trade in liquor is considered inherently noxious, pernicious, and is res extra commercium, State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26.

Voting Right.— Right to vote is a statutory right and not a fundamental right, K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 : (2010) 2 SCC (L&S) 385.

Censorship.— Film certified by Censor Board for public exhibition cannot be subjected to further censorship by State Government because such power is not available to State Government, Prakash Jha Productions v. Union of India, (2011) 8 SCC 372.

Suspension cannot be ordered before a film is publicly exhibited. This is because suspension can be ordered in respect of a thing which is operational and not which is yet to be put into operation, Prakash Jha Productions v. Union of India, (2011) 8 SCC 372.

National Flag.— The right to fly the national flag is a fundamental right. The Flag Code provides guidelines to be observed for preservation of dignity and respect to the national flag. The national flag is both a benediction and a beckoning. In case a person shows any kind of disrespect to the national flag or does not observe the terms contained in the Code, legal action may be taken against him under the relevant statutory provisions, V.K. Naswa v. Union of India, (2012) 2 SCC 542.

Voters Participation.— Lesser voter participation is the rejection of commitment to democracy whereas larger participation is better for democracy. Voters’ participation in an election is participation in democracy itself. If introducing a NOTA button in EVMs can increase the participation in democracy then, nothing should stop it, People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1 : (2013) 3 SCC (Cri) 769 : (2013) 4 SCC (Civ) 587.

Criminal defamation.— Right under Art. 19(1)(a) has to be so balanced with that under Art. 21 that right of victim of defamation may not be jeopardized. Ss. 499 and 500 IPC are saved under Art. 19(2), are not violative of Art. 19(1)(a). Reputation being an inherent component of Art. 21, it should not be allowed to be sullied solely because another individual can have its freedom, Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : (2016) 3 SCC (Cri) 1.

 

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8
Jul

PCS (J) Notes: Constitutional Law, Right to Equality with case laws

Right to Equality

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Article 14. Equality before law.— The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

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CASE LAW

Nature, Scope and Object.— The equality clause contained in Article 14 requires that all persons subjected to any legislation should be treated alike under like circumstances and conditions. Equals have to be treated equally and unequals ought not to be treated equally. While that article forbids class legislation, it does not forbid classification for purposes of implementing the right of equality guaranteed by it. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. While the classification may be founded on different bases what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration, Motor General Traders v. State of A.P., (1984) 1 SCC 222, 229, 230.

Reasonable Classification.— The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act, R.K. Garg v. Union of India, (1981) 4 SCC 675, 689-90.

If illogical, unfair and unjust then classification is unreasonable, Deepak Sibal v. Punjab University (1989) 2 SCC 145.

Any arbitrary or unreasonable action of an ‘authority’ under Article 12, would be violative of Article 14. What Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality, Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, 740, 741.

Classification may result in inequality if it ignores pre-existing inequality, Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116.

A classification must be truly founded on substantial differences that distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved. The Court always has to bear in mind the facts and circumstances of the case in order to judge the validity of a classification, B. Manmad Reddy v. Chandra Prakash Reddy, (2010) 3 SCC 314 : (2010) 1 SCC (L&S) 1169.

Classification between employee obtaining higher qualification after joining service and an employee already in possession of such qualification before joining service bears just and rational nexus to the object sought to be achieved and does not amount to discrimination offending Arts. 14 and 16, Food Corporation of India v. Bhartiya Khadya Nigam Karamchari Sangh, (2012) 2 SCC 307.

A valid classification is truly a valid discrimination based on a just objective. Result to be achieved by the just objective presupposes choice of some persons for differential consideration/treatment over others. Whenever a cut-off date is fixed to categorise one set of employees for favourable consideration over others, twin test for classification viz. distinction should be based on classification founded on intelligible differentia which has a rational relationship with just objective sought to be achieved, must be satisfied, Kallakkurichi Taluk Retired Officials Assn. v. State of T.N., (2013) 2 SCC 772 : (2013) 2 SCC (L&S) 452.

Presumption that enjoyment of same kind of entertainment by upper classes leads only to mere enjoyment and in the case of poor classes, leads to immorality, decadence and depravity. Classification based on presumption that performance of an identical dance in establishments having facilities less than a three-starred hotel would be derogative to the dignity of women and would be likely to deprave, corrupt or injure public morality or morals, but would not be so in exempted establishments is discriminatory. Presumption is elitist, invidious and totally untenable under the Constitution, State of Maharashtra v. Indian Hotel & Restaurants Assn., (2013) 8 SCC 519 : (2013) 4 SCC (Cri) 345 : (2013) 4 SCC (Civ) 1.

Rights of women.— Working women have a right to work with dignity and safe from sexual harassment. , Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

Fairness and Reasonableness.— Contracts which are unconscionable, unreasonable, unfair and against principles of distributive justice and public policy are violative of Article 14, Central Inland Water Transport Corpn.v. Brojo Nath Ganguly, (1986) 3 SCC 156.

States’ contracts with private parties also governed by Article 14. It has to act justly, fairly and reasonably even in contractual field, Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212.

Exercise of discretion.— Where unguided and unfettered discretion is conferred on any authority, whether it be the executive or the judiciary, it can be exercised arbitrarily or capriciously by such authority. There can be no equal protection without equal principles in exercise of discretion whether vested in the executive or in the judiciary, Bachan Singh v. State of Punjab, (1982) 3 SCC 24.

Principles of Natural Justice.— Observance of rules of natural justice is a requirement of Article 14 and so must be observed unless expressly excluded, H.L. Trehan v. Union of India (1989) 1 SCC 764.

Nature and Object.— Art. 14 also inhibits treating unequals as equals, All India Sainik Schools Employees’ Assn. v. Sainik School Society, 1989 Supp (1) SCC 205; Builders Assn. v. Union of India, (1989) 2 SCC 645; Direct Recruit Cass II Engg. Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715; Prem Chand Somchand Shah v. Union of India, (1991) 2 SCC 48; Finance Deptt. v. W.B. Registration Service Assn., 1993 Supp (1) SCC 153.

Arbitrariness.— There is no precise statutory or other definition of the term “arbitrary”. Arbitrariness is the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making an order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained, is clearly suggestive of the order being arbitrary hence legally unsustainable, East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678 : (2010) 2 SCC (L&S) 483.

Article 14 strikes arbitrariness because an action that is arbitrary, must necessary involve negation of equality. The doctrine of classification which is evolved by courts is not paraphrase of Article 14 nor is it the objective or end of the Article. It is merely judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Therefore, wherever there is arbitrariness in State action whether it be of legislative or executive or of an ‘authority’ under Article 12, Article 14 immediately springs into action and strikes down such state action, Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.

Reservation.— Reservation of seats under Articles 15(4) and 16(4) for socially and educationally backward classes (SEBCs) is an example of “proportionate representation”. Principle of “adequate representation” is adopted when it is found that a particular community is under-represented and measures are taken to achieve desired level of representation. Reservation of one-third seats for women in Panchayats in Part IX, is an embodiment of “adequate representation”. Reservation of 50% seats for STs in Panchayats in Scheduled Areas is an example of “compensatory discrimination”, Union of India v. Rakesh Kumar, (2010) 4 SCC 50 : (2010) 1 SCC (L&S) 961.

Self-proclamation and claim of a community of backwardness based on perception of advancement of other classes to seek protection as less fortunate is not constitutionally permissible. Inclusion of Jat community in the Central List of Backward Classes for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand, unconstitutional, Ram Singh v. Union of India, (2015) 4 SCC 697.

Equality.— Like should be treated alike as absolute equality might lead to inequality, Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404.

Equality is the basic feature of Constitution. The content of Article 14 was originally interpreted by the Supreme Court as a concept of equality confined to aspects of discrimination and classification. The content of Article 14 got expanded conceptually so as to comprehend the doctrine of promissory estoppel, non-arbitrariness, compliance with rules of natural justice, eschewing irrationality etc., M. Nagraj v. Union of India, (2006) 8 SCC 212.

Equality of citizens’ rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of State have to be fair and for legitimate reasons, Hari Ram v. State of Haryana, (2010) 3 SCC 621 : (2010) 1 SCC (Civ) 787.

Right to equality before law, is secured from all legislative and executive tyranny by way of discrimination, Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

For attainment of equality before the law and equal protection of the laws, regardless of religion, caste, community, faith, etc. interpretation of general/secular law of the land must in such a manner as to attain parity in rights/entitlements of persons of one religious group standing disadvantaged when compared with their counterparts from another religious group. There is disadvantaged position of Christian unwed mothers vis-a-vis Hindu counterparts in India. An unwed mother in India can apply to become the sole guardian of a child, without going notice to the father of the child and without disclosing his identity, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

Appointments of Archakas in temples will have to be made in accordance with the Agamas, subject to their due identification as well as their conformity with the Constitutional mandates and principles, Adi Saiva Sivachariyargal Nala Sanga v. Govt. of T.N., (2016) 2 SCC 725.

Public Interest.— Public interest, is to be primary consideration for dispensation/ allocation of natural resources by State. Distribution process must be fair and transparent affording equal opportunity to all interested parties (subject to competition amongst market players), Centre for Public Interest Litigation and Others v. Union of India and Others, (2012) 3 SCC 1.

Distribution of Natural Resources.— Where revenue maximisation is object of policy, auction would be one of the preferable methods, though not the only method. Auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement for alienation of all natural resources. Hence, every method other than auction cannot be struck down as ultra vires the Constitution, even if there might be a potential for abuse, as potential for abuse cannot be the basis for striking down a method as ultra vires the Constitution. Furthermore, court cannot conduct a comparative study of various methods of distribution of natural resources and suggest the most efficacious mode. It respects mandate and wisdom of executive in such matters. Methodology pertaining to disposal of natural resources is clearly a matter of economic policy which entails economic choices, and court lacks necessary expertise therefor. Hence, there can be exceptions to auction: ultimate test being fairness of decision-making process and strict compliance with Article 14. However, a blithe deviation from public disposal of resources would not be tolerable. Such deviation must be justified by compelling reasons and not just convenience, Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

When a policy decision to allienate/allocate natural resources is not backed by a social or welfare purpose, and precious and scarce resources are alienated for commercial pursuits of profit maximising private entrepreneurs (i.e. crony capitalism), adoption of means other than those that are competitive and maximise revenue may be held arbitrary to face wrath of Article 14, Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

There is no constitutional imperative in the matter of economic policies. Article 14 does not predefine any economic policy as a constitutional mandate. Even mandate of Article 39(b) imposes no restrictions on the means adopted to subserve the public good and uses the broad term “distribution”, suggesting that the methodology of distribution is not fixed, Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1.

Policy Decisions.— It is open to the State and the authorities to take economic and management decisions depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. If every decision taken by the State is tested by a microscopic and a suspicious eye, administration will come to a standstill and the decision-makers will lose all their initiative and enthusiasm, Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat, (2014) 4 SCC 156.

Guidelines for content regulation for government advertising, issued, Common cause v. Union of India, (2015) 7 SCC 1.

Duty of State.— State cannot arbitrarily pick and choose from amongst similarly suited persons, to pursue legal proceedings against some and not to do so consciously against others. Such an approach would be ex facie arbitrary, unjust and violative of Art. 14, K.C. Bajaj v. Union of India, (2014) 3 SCC 777.

Public Functions.— BCCI even though not a ‘State’ under Art. 12 does perform certain public functions like selection of the team to represent the country in international arena and has a complete sway on the game of cricket which make it amenable to the Writ Jurisdiction of the High Court under Article 226, Board of Cricket Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251.

Discretionary Power.— A law conferring absolute or uncontrolled discretion in an authority negates the protection given under Article 14, State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.

Single class classification.— A single institution is capable of being treated as a class by itself for the purpose of legislation if there are special circumstances or reasons which are applicable to that institution and such legislation would not include the wrath of Article 14, Charanjit Lal Choudhary v. UOI, AIR 1951 SC 41.

Right to safety against crime.— The Supreme Court directed that the copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, Youth Bar Assn. of India v. Union of India, (2016) 9 SCC 473 : (2016) 3 SCC (Cri) 691.

Protection/Remedies/Reliefs afforded by the Act.— Supreme Court struck down the words “adult male” before the word “person” in Section 2(q) of Domestic Violence Act, 2005 holding that these words discriminate between persons similarly situated, and is contrary to the object sought to be achieved by the Domestic Violence Act. Thus remedies under 2005 Act are available even against a female member and also against non-adults, Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165.

Equality in matters of public employment.— The appointment of 1.78 Lakh Assistant Teachers (Shiksha Mitras) in Junior Basic Schools, quashed. The Shiksha Mitras cannot be regularized as teachers as the appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers, State of U.P. v. Anand Kumar Yadav, 2017 SCC OnLine SC 792.

Mandatory seeding of Aadhaar numbers in PAN database.— Obligation of all assessees to provide Aadhaar number or enrolment ID of Aadhaar application form while applying for PAN or while filing income tax return does not violate Arts. 14 or 19(1)(g) of the Constitution, Binoy Viswam v. Union of India, (2017) 7 SCC 59.

  1. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.— (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

10[(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]

11[(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.]

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CASE LAW

Rights of women.— Women have right to elimination of gender-based discrimination particularly in respect of property so as to attain economic empowerment, C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil, (1996) 8 SCC 525.

Categorisation of women doing household duties as non-workers clubbing them with beggars, prostitutes and prisoners betrays a totally insensitive and callous approach towards the dignity of labour of women. Census definition of work reflects gender discrimination, Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664.

Reasonable restrictions may be imposed on bar dancing, but without completely prohibiting or stopping it. Women’s freedom and their empowerment should be reflected in the law-enforcement strategies of the State and modeling of laws, State has to provide alternative means of support and shelter to persons engaged in such trades or professions some of whom are trafficked and have nowhere to go or earn a living. Strong and effective support system is necessary to solve such problem, and not an outright ban on dance performances, State of Maharashtrav. Indian Hotel & Restaurants Assn., (2013) 8 SCC 519 : (2013) 4 SCC (Cri) 345.

Validity of.— Article 15(5) held valid to the extent that it permits reservation for socially and educationally backward classes in State or State-aided educational institutions subject to the exclusion of the ‘creamy layer’ from OBCs, Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.

Just compensation.— The time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in matters of division of matrimonial properties. The courts and tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accidents and quantifying the amount in the name of fixing “just compensation”. The time has come for Parliament to have a rethinking for properly assessing the value of homemakers and householders’ work and suitably amending the provisions of the Motor Vehicles Act and other related laws for giving compensation when the victim is a woman and a homemaker. Amendments in matrimonial laws may also be made in order to give effect to the mandate of Article 15(1) in the Constitution, Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664.

Need for Special Protection.— The historically disadvantaged group must be given special protection and help so that they can be uplifted from poverty and low social status. Giving only formal equality to all groups and communities will not result in genuine equality. It is for this reason that special provision have been made in our Constitution in Articles 15 (4), 15 (5), 16(4), 16 (4-A) and 46 etc. for the upliftment of these groups, Kailas v. State of Maharashtra, (2011) 1 SCC 793.

Reservation in superspeciality posts.— There can be no compromise with merit at the superspeciality stage for medicine, engineering and other technical posts, Faculty Assn. of AIIMS v. Union of India, (2013) 11 SCC 246.

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  1. Equality of opportunity in matters of public employment.— (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory]12 prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

13[(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion 14[, with consequential seniority,] to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]

15[(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.]

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

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CASE LAW

Reservation in Special Posts/Services.— Reservations is not permissible where high level of skill, intelligence and excellence required, like defence services, technical posts, specialities in medicine, engineering, atomic energy, space research, physical sciences, posts of professors, pilots, etc., Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

“Backward class of citizens” includes Scheduled Castes and Sched-uled Tribes both, E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394.

Public Employment.— Absorption, regularisation, or perma-nent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753.

Reasonable Classification.— Classification between employee obtaining higher qualification after joining service and an employee already in possession of such qualification before joining service bears just and rational nexus to the object sought to be achieved and does not amount to discrimination offending Articles 14 and 16, Food Corporation of India v. Bhartiya Khadya Nigam Karamchari Sangh, (2012) 2 SCC 307.

Nature.— Article 16(4) is not an exception to Article 16(1), rather the two operate in different fields, M. Nagarajv. Union of India, (2006) 8 SCC 212.

Principles of Equality.— Violation of the principle of equality enshrined in Article 16(1) does not take place by the rotational system of fixing seniority in a cadre—half of which consists of direct recruits and the other half of promotees. Such a system cannot be said to defy the principles of equality. Mervyn Continho v. Collector of Customs, AIR 1967 SC 52.

Article 16(1) and (2) actually give effect to equality before the law guaranteed in Article 14 and to the prohibition of discrimination guar-anteed under Article 15(1). Southern Railway v. Rangachari, AIR 1962 SC 36.

Nature & Scope.— Article 16(1) and Article 14 are closely con-nected and deal with the individual rights of a person. Article 16(1) has its roots in Article 14 itself. Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209.

Promotion.— Right to be considered for a benefit of promotion should be distinguished from a mere chance as to obtaining the benefit. High Court of Judicature of Madras v. R. Perachi, (2011) 12 SCC 137.

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  1. Abolition of Untouchability.— “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

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NOTES

The law referred in Article 17 is the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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CASE LAW

Nature & Scope.— Article 17 signifies the vision of the founding fathers of the Constitution of liberating society from blind adherence to traditional superstitious beliefs bereft of reason and rational basis, N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106.

Discrimination on the basis of Caste.— There should be no discrim-ination between persons when it comes to gaining entry into a Hindu temple regardless of the caste of the person. A temple is for the purpose of worship to the Hindu public in general and such discrimination shall be hit by Article 17 of the Constitution. Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255.

Personal Laws.— Personal laws of parties are not affected by Article 17 of Part III of the Constitution. Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689.

Applicability.— Rights granted under Article 17 are enforceable under Article 32 not only against the State but against any other pri-vate party violating those fundamental rights as well. People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.

Abolition of Untouchability.— The existence and practice of untouchability in this country and the efforts made for its eradication during the past several decades are matters of common knowledge and can be taken judicial notice of. The framers of the Constitution dealt with this feature in Article 17, which in their view constituted a blot on Indian Society, in two ways. They provided for withholding legal recognition to this form of social discrimination and for punishing such dis-crimination as an offence. Devarajiah v. B. Padmanna, 1957 SCC OnLine Kar 16 : AIR 1958 Mys 84.

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  1. Abolition of titles.— (1) No title, not being a military or academic distinction, shall be conferred by the State.

(2) No citizen of India shall accept any title from any foreign State.

(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

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CASE LAW

National Awards.— Awards do not amount to titles, Balaji Raghavan v. Union of India, (1996) 1 SCC 361.

7
Jul

PCS (J) Notes: Constitutional Law, Article 13 with relevant case laws

  1. Laws inconsistent with or in derogation of the fundamental rights.— (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

9[(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368.]

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CASE LAW

Doctrine of eclipse.— Doctrine of eclipse will apply to pre-constitutional law governed by Article 13(1) but not to post-constitutional laws governed by Article 13(2), K.K. Poonacha v. State of Karnataka, (2010) 9 SCC 671.

Retrospective effect.— Fundamental rights have no retrospective effect, Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128.

Nature of Fundamental Rights.— Fundamental rights cannot be waived, Basheshar Nath v. CIT, AIR 1959 SC 49.

Extent of Amendment.— An amendment to the Constitution is not “law”, and to the extent that it does not violate the basic structure, Article 13(4) is valid, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

Personal Laws.— Personal laws are not “law” for the purpose of Article 13, State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, followed in Ahmedabad Women’s Action Group v. Union of India, (1997) 3 SCC 573.

Burden of proof.— Burden of proof/Presumption of constitutionality of statute is on him who challenges it to show that there has been a clear transgression of constitutional principles as there is always a presumption in favour of constitutionality of an enactment, Dharmendra Kirthal v. State of U.P., (2013) 8 SCC 368 : (2013) 4 SCC (Cri) 280.

 

7
Jul

PCS (J) Notes: Constitutional Law, Article 12, State

Article 12, State

Listen to the audio clip for Easy Learning

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General

  1. Definition.— In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

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CASE LAW

State and other authorities.— A constitutional or statutory authority would be within the meaning of the expression “other authorities” in Article 12, if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequence, or it has the sovereign power to make rules and regulations having the force of law. A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by Government not only in its policy-making but also in carrying out the functions entrusted to it by the law establishing it or by the charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government, R.D. Shetty v. International Airport Authority, (1979) 3 SCC 489, 498, 507-511, 518. See Also Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156.

Functions/Duties of a public nature performed by a body not prohibited by law does not make the body “State” for the purposes of Article 12, Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.

It is difficult to provide an exhaustive definition of term “authorities” which would fall within ambit of Art. 12. Only an inclusive definition is possible expansion of judicial definition of the term “State”. It is not easy to determine which duties form part of private action and which form State action. Hence, question in each case, would be whether in light of the cumulative facts as established, the body concerned, is financially, functionally and administratively under the control of the Government. Such control must be particular to the body in question, and not general in nature. It must also be deep and pervasive. Control should not be merely regulatory, Balmer Lawrie & Co. Ltd. v. Partha Sarathi Sen Roy, (2013) 8 SCC 345 : (2013) 3 SCC (Civ) 804.

Under Article 12 the following are held to the State: Project and Equipment Corporation of India, (1984) 3 SCC 316; Hindustan Steel Ltd., 1984 Supp SCC 554; Indian Council of Agricultural Research, (1984) 2 SCC 141; State Financial Corporation, (1983) 3 SCC 379; Indian Statistical Institute even though a registered society, (1983) 4 SCC 582; Bharat Petroleum Corpn. Ltd. (BPCL), (1981) 1 SCC 449; Registered Societies run by State, (1981) 1 SCC 722; Coffee Board, (1980) 3 SCC 358; Steel Authority of India Ltd. (SAIL), (1985) 2 SCC 644; State Electricity Board, (1985) 3 SCC 38; Delhi Stock Exchange, (2005) 4 SCC 4; Mysore Paper Mills Ltd., (2002) 2 SCC 167; Central Inland Water Transport Corpn., (1986) 3 SCC 156; U.P. Rajya Karmachari Kalyan Nigam, (2005) 1 SCC 149; Council of Scientific and Indian Research (CSIR), (2002) 5 SCC 111; International Airport Authority of India (IAAI), (1979) 3 SCC 489; Children’s Aid Society, (1987) 3 SCC 50; Indian Oil Corporation, (1990) 3 SCC 752; Food Corporation of India, (1985) 2 SCC 136; United India Insurance Co. Ltd., (1996) 9 SCC 439.

State, does not include the Judiciary. However, in the exercise of non-judicial functions the court will fall within the definition of the State, State of Punjab v. Ajaib Singh, AIR 1953 SC 10.

“Under the control of Government of India” does not apply to quasi-judicial body, K.S. Ramamurthy Reddiar v. Chief Commr., Pondicherry, AIR 1963 SC 1464.

Government Control.— The test for whether the entity is financially, functionally & administratively under Government control is that the control must be pervasive and not merely regulatoryPradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111. See also Zee Telefilms v. Union of India, (2005) 4 SCC 649.

7
Jul

PCS (J) Notes: Constitutional Law, Fundamental Right with relevant case laws

Part III,

FUNDAMENTAL RIGHTS

CASE LAW

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Object of Fundamental Rights.— The fundamental rights represent the basic values enriched by the people of India. The aim behind having an elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the Framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclusion of a fundamental rights chapter in the Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes, Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.

Nature of Fundamental Rights.— Fundamental rights conferred by Part III are not distinct and mutually exclusive. A law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation. Ex-hypothesi it must also be likely to be tested with reference to Article 14. On principle, the concept of reasonableness must, therefore, be projected in the procedure contemplated by Article 21 having regard to the impact of Article 14 on Article 21, Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597 : (1978) 2 SCR 621.

Duty of Court.— One right does not override the other. No single right taken individually is absolute. Court’s duty is to strike a proper balance in a given situation where one right competes with other, Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603 : (2013) 1 SCC (L&S) 76 : (2013) 2 SCC (Cri) 202 : (2013) 1 SCC (Civ) 173.

Adoption Rights.— Right to adopt and right of child to be adopted not a fundamental right. Elevation of this right to status of fundamental right not possible at present in view of conflicting faith/beliefs of different communities, Shabnam Hashmi v. Union of India, (2014) 4 SCC 1.

13
Apr

Fundamental Rights of Citizen

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