Tuesday, September 22, 2015

Fundamental Duties

Fundamental Duties

The new part which consists of only one Art. 51-A was added to the

constitution by the 42nd Amendment, 1976. This Article for the first time

specifies a code of ten fundamental duties for citizens. Art. 51-A says that it

shall be the duty of every citizen of India:

(a) To abide by constitution and respect its ideals and institutions, the National

Flag and National Anthem;

(b) To cherish and follow the noble ideals which inspired our national struggle

for freedom;

(c) To uphold and protect and sovereignty, unity and integrity of India;

(d) To defend the country and render national service when called upon to do

so;

(e) To promote harmony and the spirit of common brotherhood amongst all the

people of India transcending religious, linguistic and regional or sectional

diversities; to renounce practices derogatory to the dignity of women;

(f) To value and preserve the right heritage of our composite nature;

(g) To protect and improve the natural environment including forests, lakes,

rivers and wild life, and to have compassion for living creature;

(h) To develop the scientific temper, humanism and the spirit of inquiry and

reform;

(i) To safeguard public property and to abjure violence;

(j) To strive towards excellence in all spheres of individual and collective

activity so that the nation constantly rises to higher levels of endeavour and

achievements.

The constitution (86th amendment) Act, 2002 has added a new clause (k) to Art.

51-A which provides “who is parent or guardian to provide opportunities for

education to his child or as the case be, ward between the age of six and

fourteen years”.

Needs for Fundamental Duties:- Rights and duties are correlative. The

Fundamental Duties are, therefore, indeed to serve as a constant reminder to

every citizen that while the Constitution specifically conferred on them certain

Fundamental Rights, it also requires citizens to observe certain basic norms of

democratic conduct and democratic behaviour. It was claimed by the ruling

party the congress, that what the framers failed to do was being done now. The

omission is being rectified by providing a chapter on citizen’s duties. It was

argued that in India people lay emphasis only on rights and not on duties.

It is submitted that this view is wrong. The performance of one’s duties even in

partial disregard of one’s rights and privileges has been traditional in this

country. Since time immemorial the emphasis in Indian society in accordance

with the dictates of the ancient scriptures has been on the individual’s

“Kartavya”, this is,performance of one’s duties towards society, the country and

especially towards one’s parents. The Gita and Ramayana enjoin people to

perform their duties without caring for their rights or fruits.

These traditional duties have been given constitutional sanction. “If one takes

care to see, he will discover in the constitution not only his rights but also his

duties. A look at the constitution will also thus answer the complaint of some

persons that constitution has conferred rights on the individual but has not set

out the duties of the individuals towards the society. The Preamble of the

Constitution secures to all the citizens: “liberty of thought, expression, belief,

faith and worship.” These are fundamental rights of the citizens. The rest of the

Preamble emphasises only the duties, “justice, socio economic and political”. In

addition to this, the fundamental rights guaranteed by the Constitution are not

absolute rights. The state is empowered to impose reasonable restriction and

curtail these rights in the interest of society. Restitutions may sometimes

amount to prohibition.

Enforcement of Duties:-the duties incorporated in the constitution by the 42nd

Amendment are statutory duties and shall be enforceable by law. Parliament, by

law, will provide penalties to be imposed for failure to fulfil those duties and

obligations. The success of this provision would, however, depend much upon

the manner in which and the person against whom these duties would be

enforced.

For the proper enforcement of duties, it is necessary that it should be known to

all. Most of the people of this country are illiterate and not politically conscious

what they owe to society and country. Homes, universities, officers and their

places of work should all be made centres for imparting in the performance of

their obligations.

In M.C.Mehtavs Union of India: (1983) 1 SCC 471, the SC has held that

u/Art. 51-A(g) it is the duty of the central government to introduce compulsory

teaching of lessons at least for one hour in a week on protection and

improvement of natural environment in all the educational institutions of the

country. It directed the central government to get textbooks written on that

subject and distribute them on the educational institutions free of cost. In order

to rouse amongst the people, the consciousness of cleanliness of environment, it

suggested the desirability of organising, keep the city clean week, keep the

town clean, keep the village clean week, in every city, town and village

throughout India atleast once in a year.

Fundamental Duties- An aid to interpretation of Constitutional provisions

In AIIMS Students Union vs AIIMS: AIR 2001 SC 3262, speaking about the

importance of fundamental duties enshrined in Art. 51-A while striking down

the institutional reservation of 33% in AIIMS coupled with 50% reservation

discipline wise as violative of Art. 14 of the Constitution, the SC said they are

equally important like fundamental rights but it cannot overlook as “duties” in

para IV A is prefixed by the same word “fundamental” which was prefixed by

the founding fathers of the Constitution to “right” in para III.

In Aruna Roy vs Union Of India: AIR 2002 SC 3176, the validity of national

Curriculum framework for school education was challenged on the ground that

it was violative of Art.28 of the constitution and anti-secular. It provides

imparting of value development education relating to basic of all religions. The

court held, that the NCFSF does not mention of imparting “religious

instructions” as prohibited u/Art. 28.

Accordingly the court held that such education is neither violative of Art. 28 of

the Constitution nor is against the concept of secularism.

2. Parliamentary Privileges

The privileges of the parliament and its members are such conventions and

practices which evolved in England as a consequence of the constant struggle

which the Commons had to put against the Crown, the Country and the Lords.

These have been described by the English Authorities in constitution as the

important part of the law and custom of the parliament of English. In English,

conventions have developed adequately and whenever we in India, fail to find a

solution of a problem arising in our Parliament in this respect, we have a look at

the conventions in England for that purposes. So far, the conventions have not

developed to that extent and adequate provisions have also not been made in

this regard in the constitution itself.

According to May, the parliamentary privileges are defined as, “some of the

peculiar rights enjoyed by each house collectively as a constituent part of the

parliament and by the members of each house individually without which they

could at discharge their functions and which exceed those possessed by other

bodies or individuals”

Parliamentary Privileges or the legislative privileges connote certain rights

occurring to each house of Parliament collectively and also to members

individuality without which it would not be possible to maintain either

independence of action or the dignity and efficiency of a sovereign legislature.

Art 105 and 194 of the constitution of India related to the privileges, powers

and immunities of Parliament and its members and the state legislature and their

members respectively.

Privileges are attached not only to House collectively but even to individual

members of the House, the reason being that no house can function effectively

unless its members functions effectively and without any interference from any

quarter. Privileges are conferred on a House so that it may vindicate its

authority, prestige and power and protect its members from any molestation or

obstruction in the performance of their functions as members of their House.

Privileges of a legislature exist mainly for its protection and maintenance of its

independence and dignity.

The privileges of a House have two aspects – (i) external and (ii) internal.

They refrain anybody from outside the House to interfere with its working. This

means that the freedom of speech and action of outsiders are limited to some

extent. The privileges also restrain the members from doing something which

may amount to an abuse of their position.

The Indian Constitution – makers appreciated the need to confer certain

privileges to the legislature in India. The Constitutions does not however,

exhaustively enumerate the legislative privileges. It specifically defines only a

few privileges but the rest of the privileges – of the legislatures in India shall be

those which were enjoyed by the House of Commons on the date of

constitution. The ideas was to confer on the legislatures in India very broad

privileges, as broad as widest privileges as compared to any other legislatures in

the world.

The relevant provisions in the Constitution defining legislative privileges are

Art. 105 and 194. Art. 105 relates to parliament while Art. 194 relates to the

state legislatures. Both these provisions are couched practically in similar

language and therefore, any discussion on Art. 105 will apply mutates to Art.

194. Art. 105 as it stood prior to the Constitution ( 42nd amendment) Act, 1976,

ran as follows:

(i) Subject to the provisions of this Constitution and rules, and standing

(ii) No member of parliament shall be liable to any proceedings in any court

(iii) In other respects, the powers privileges and immunities of each House of

(iv) The provisions of clause (1), (2) and (3) shall apply in relation to person

orders regulating the procedure of parliament, there shall be freedom of

speech in Parliament.

in respect of any things said or any vote given by him in parliament or

any committee thereof, and no person shall be so liable in respect of the

publication by or under the authority of either House of Parliament any

report, papers, votes or proceedings.

Parliament and of the members and the committees of each House, shall

be such as many from time to time be defined by Parliament by Law, and

until so defined, shall be those of the House of Commons of the

Parliament, of the United Kingdom, and of its members and committees,

at the commencement of this Constitution.

who by virtue of this Constitution have the right to speak in and

otherwise to take part in the proceedings of, a House of Parliament or any

committee therefore as they apply in relation to members of Parliament.

3. Parliamentary privileges and fundamental rights

There has been some confusion on the question whether the fundamental rights

control in any way the privileges which the house enjoy u/Art. 105 (3) and which

is to prevail in case of a conflict between such a privilege and fundamental rights.

In GunupativsNafisul Hassan: AIR 1954 SC 836,  the SC ordered the release of

the editor of “Bitz”, arrested on a charge of contempt of the House under the

speaker’s warrant, on the ground that he had not been produced before a legislature

within 24 hrs of his arrest as required by Art. 22(2) of the Constitution. This

created the impression that the fundamental rights would control parliamentary

privileges. In the Searchlight case i.e., M.S.M. Sharma vsSinha: AIR 1959 SC

395, the SC held by majority that the privileges enjoyed by a House of Parliament

u/Art. 105(3) were not subject to Art. 19(1)(a) and therefore, a House was entitled

to prohibition contravenes the fundamental rights of speech and expression u/Art.

19(1).Gunupati was held not binding as it was not a considered opinion on the

subject. The court observed that Art. 105(3) was not declared to be “subject to the

constitution”, and therefore, it was as supreme as provision of the constitution

including the fundamental right. Any inconsistency between Art. 105(3) which was

of a special nature.Though the court in searchlight was concerned specifically with

the question of applicability of Art. 19(1)(a) to the area of legislative privileges, an

impression got around, because of certain observations made by the court and the

way in which court treated the earlier case of Gunupati that, perhaps all

fundamental rights were so applicable. Reconsidering the question of mutual

relationship between the fundamental rights and legislative privileges in Keshav

Singhcase: AIR 1965 SC 745, the SC held that the searchlight case excluded only

Art. 19(1)(a) and not other fundamental rights, from controlling parliamentary

privileges. It held that Art. 21 would apply to parliamentary privileges and a person

would be free to come to the court for a writ of habeas corpus on the ground that

he had been deprived of his personal liberty not in accordance with law but for

capricious or mala fide reason. The court open the question whether any other

fundamental right would apply to legislative privileges as it was not pertinent to

the issue in hand later disposing of the keshav Singh case (Keshavsinghvs Speaker

Legislative Assembly: AIR 1965 All. 349), the Allahabad HC held that when the

legislature acted under the rules framed by it laying down the procedure for

enforcing its powers to commit for contempt, that would be compliance of Art. 231

requiring procedure to be laid down by law for deprivation of personal liberty. It

was also held that Art. 22(2)has no application when a person has been adjudged

guilty of contempt of the House and has been detained in pursuance of such an

adjudication. Thus, the position appears to be that it is wrong to suppose that no

fundamental right, applies to the area of legislative privileges. Some fundamental

rights like Art. 19(1)(a) do apply. Perhaps Art.21 do apply, while the position with

regard to others, e.g. Art. 22(1) & 22(2) is not clear. There is, however, no doubt

that if parliament were to act, would not be free from controlling effect of the

fundamental right. Such provisions of the law as contravene fundamental rights

would be invalid (G. SubraManiumvs Speaker Legilative Assembly: AIR 1969

Mad. 10).

4. Directive Principles of State Policy

Introduction:-part IV of the constitution contains, certain principles called

Directive Principle, which are fundamental in the governance of the country and

the state is under duty to apply these principles in making law, although they are

not enforceable by court. This novel feature of the constitution is borrowed from

the constitution of Ireland, which had copied it from the Spanish Constitution.

Ivor Jennings calls it was the “Philosophy of Fabian Socialism”. According to

G.N. Joshi, the part IV of the constitution, containing, DPSP, “constitutes a very

comprehensive political, social & economic programme for a modern Democratic

State.”

At one time it was thought that the state was mainly concerned with the

maintenance of law and order and the protection of life, liberty and property of the

subject. Such a restrictive role of the state is no longer a valid concept, today we

are living in an era of a welfare state, which has to promote the prosperity and

well-being of the people. The Directive Principles lay down certain economic and

social policies to be pursued by the various governments in India; they impose

certain obligation on the state to take positive action in certain directions in order

to promote the welfare of the people and achieve economic democracy.

Underlying object behind the Directive Principle:-the Directive Principles aare the

ideals, which the Union and the State Governments must keep in mind while they

formulate policy or pass a law. They lay down certain social, economic and

political principles, suitable to peculiar conditions prevailing in India.

Classification of the Directives:- The Directives may be classified in to the

following groups:

(A) Social and Economic Charter

1. Social order based on justice: Art. 38(1) provides that the state shall

strive to promote the welfare of the people by securing and protecting a

social, economic and political justice.

Art. 38(2) further elaborated the state’s duty inserted by the 44th

Amendment. 44th Amendment provides that the state shall, in particular,

strive to minimise inequalities in income and endeavour to

eliminateinequalities in status, facilities and opportunities, not only

amongst individuals but also amongst groups of people residing in

different area or engaged in different vocations. The new clause aims at

equality in all spheres of life. It would enable the state to have a national

policy on wages and eliminate inequalities in various spheres of life.

2. Principles of policy, to be followed by the state for securing economic

justice: Art. 39 directs the state to secure:

(a) Equal right of men and women to adequate means of livelihood.

(b)  Distribution of ownership and control of the material resources of the

(c)  To ensure that the economic system should not result in concentration

(d)  Equal pay for equal work for both men and women.

(e)  To protect health and strength of workers and tender age of children

community to the common good.

of wealth and means of production to the common detriment.

(f) That children are given opportunities and facilities to develop in a

and to ensure that they are not forced by economic necessity to enter

avocations unsuited to their age or strength.

healthy manner and in conditions of freedom and dignity and that

childhood and youth are protected against exploitation and against

moral and material abandonment.

Clause (f) was modified by the Constitution (42nd Amendment) Act,

1976, with a view to emphasis the constructive role of the state with

regard to the children. Distributive justice is common aim of Art. 38 &

39. They propose to promote equality in wider import and create

circumstances to avoid injustice at the social and economic levels. In

M.C.Mehtavs State of Tamil Nadu: (1991) 1 SCC 283,it has been held

that in view of Art. 39 the employment of children within the match

factories directly connected with the manufacturing process of matches

and fireworks cannot be allowed as it is hazardous. Children can,

however, be employed in the process of packing but it should be done in

area away from the place of manufacturing to avoid exposure to

accidents.

In an another landmark judgment in M.C.MehtavsStae of Tamil Nadu:

AIR 1997 SC 699, known as (child labour abolition case) a three judges

bench of the SC has held that children below the age of 14 cannot be

employed in any hazardous industry, or mines or other work.

Equal pay for equalwork: Pursuant to Art. 39(d) Parliament has enacted

the Equal Remuneration Act, 1976. The directive contained Art. 39(d)

and the Act passed thereto can be judicially enforceable, by the court. In

Randhir Singh vs UOI: AIR 1982 SC 879, the SC has held that the

principle of “Equal pay for equal work though not a fundamental right” is

certainly a constitutional goal and, therefore, capable of enforcement

through constitutional remedies u/Art. 32 of the constitution. The

doctrine of equal pay for equal work is equally applicable to persons

employed on daily wages basis. They are also entitled to the same wages

as other permanent employees in the department employed to do the

identical work.

In State of Haryana vsRajpal Sharma, AIR 1997 SC 449, it has been

held that the teachers employed in privately managed aided schools in

State of Haryana are entitled to the Salary and dearness allowance as is

paid to teachers employed in Government schools.

(B) Social Security Charter

1. Equal justice and free legal aid Art. 39A

2. Right to work, education and public assistance

in certain cases. Art. 41

Resultantly the SC declared in Mohini Jain case

that the right to education be equated with a fundamental

right and it should be read to the Art. 21, because

the right to life means a dignified life which has

no meaning without education.

3. Just and human conditions of work Art. 42

4. Living wage for workers Art. 43

5. Participation of workers in management Art. 43A

6. Provision for early childhood care and education Art. 45

7. Promotion of educational and economic interest Art. 46

8. Duty of the stage to raise the level of nutrition Art. 47

of industries.

to children below the age of six years

of SCs and STs and other  weaker section

and the standard of living and improvement of

public health.

In HussainaraKhatoonvs State of Bihar: AIR 1979 SC 1369, the SC held that

right to free legal right is essential ingredient of “reasonable fair & just” procedure

and implicit in guarantee of Art. 21. This is the constitutional right of every

accused person who is unable to engage lawyer due to poverty. The state is under

mandate to provide a lawyer to an accused person if the circumstances of the case

and needs of justice so require, provided, of course, the accused person does not

object to the provision of such lawyer.

In a notable judgment in State of Maharashtra vsManubhaiBagajiVashi: (1995) 5

SCC 730, the SC has held that Art 21 read with Art. 39-A casts a duty on the state

to afford grants in aid to recognised private law colleges, similar to other facilities,

which qualify for receipt of the grant. The aforesaid duty cast on the state cannot

be whittled down in any manner, either by pleading paucity of funds or otherwise.

The right to free legal aid and speedy trial are guaranteed fundamental rights u/Art.

21. Art. 39-A provides “equal justice” and “free legal aid”. The state shall secure

that the operation of the system promotes justice.

( C) Community Welfare Charter

1. Uniform Civil Code: Art. 44 requires the state to secure for the citizens a

uniform civil code throughout the territory of India.

In a historic judgment in SarlaMudgalvs UOI: (1995) 3 SCC 635, SC has

directed the Prime Minister NarsimhaRao to take fresh look at Art. 44 of the

Constitution which enjoins the state to secure a uniform civil code which,

accordingly to the court is imperative for both protection of the oppressed

and promotion of national unity and integrity. The court directed the Union

Government through the Secretary to Ministry of Law and Justice, to file an

affidavit by August 1995 indicating the steps taken and efforts made, by the

government, towards securing a uniform civil code for the citizens of India.

The above direction was given by the court while dealing with case where

the question for consideration was whether a Hindu husband under Hindu

Law, after conversation to Islam, without dissolving the first marriage, can

solemnise a second marriage. The court has held that such a marriage will be

illegal and the husband can be prosecuted for bigamy u/s. 494 of IPC. Court

further held that a Hindu Marriage continues to exist even after one of the

spouse converted to Islam. There is no automatic dissolution of Hindu

Marriage. It can on be dissolved by a decree of divorce on any of the

grounds mentioned in section 13of the Hindu Marriage Act. Accordingly,

the court held that the second marriage of Hindu after his conversion to

Islam was void in terms of section 494 IPC and the husband was liable to be

prosecuted for bigamy.

As regards the question of “Uniform Civil Code” the Division bench(Kuldip

Singh And R.M. Sahai, JJ.) in their separate but concurrent judgements said

that since 1950 a number of Governments have come and gone but they have

failed to make any efforts towards implementing the constitutional mandate

u/Art. 44 of the constitution. Consequently, the problem today is that many

Hindus have changed their religion and have converted to Islam only for the

purpose of escaping the consequence of bigamy. This is so because Muslim

law permits more than one wife and to the extent of four. Kuldip Singh, J.,

said that Art. 44 is based on the concept that there is no necessary

connection between religion and personal law in a civilized society.

Marriage, succession and like matters are of a secular nature and therefore,

they can be guaranteed by law. No religion permits deliberate distortion, the

judges declared. Much apprehension prevails about bigamy in Islam itself.

In many Islamic countries as in Syria, Tunisia, Morocco, Pakistan, Iran and

other Islamic countries have codified their personal law to check its abuse.

This judgment of the court has aroused the hope that one of the greatest evil

of Indian Society will be removed. But unfortunately the court, while

hearing an appeal filed by one of the accused in the above case, clarified that

its direction was only an obiter dicta and not legally binding on the

government. This clarification was given by Mr. Justice Kuldip Singh who

had directed the government to take immediate steps for implementing the

mandate of Art. 44 of the constitution. Even before the clarification of the

court the Prime Minister had told to the Muslim Ulemas of Rampur, U.P.

that his government would not implement the constitutional mandate u/Art.

44 of the constitution.

2. Organisation of agriculture and animal husbandry: Art. 48 directs the

state to take steps to organise agriculture and animal husbandry on modern

and scientific lines. In particular, it should take steps for preserving and

improving the breeds, and prohibiting the slaughter of cows and calves and

other milk and draught cattle.

3. Protection and improvement of forests and wild life: Art. 48-A requires

the state to take steps to protect and improve the environment and to

safeguard the forests and wild life of the country. In M.C. Mehta (II) vs

UOI: (1988) 1 SCC 471, the SC, relying on Art. 48-A gave directions to the

central and the state governments and various local bodies and Boards under

the various statutes to take appropriate steps for the prevention and control

of pollution of water.

4. Protection of monuments and places and objects of national

importance: Art. 49 requires the state to protect every monument or place

or object of artistic or historic interest (declared by law or under law made

by parliament) to be of national importance from spoliation, disfigurement,

destruction, removal, disposal or export. Pursuant to this, parliament has

enacted the Ancient and Historical Monuments and Archaeological Sites and

Remains (Declaration of National Importance) Act, 1951.

5. Separation of Judiciary from Executive: Art. 50 requires the state to take

steps to separate the Judiciary from the Executive in the public services of

the state. To promote the rule of law, this is very essential.

6. Promotion of International peace and security: Art. 51 provides that the

state should strive to (a) promote international peace and security; (b)

maintain just and honourable relations between nations; (c) foster respect for

international law and treaty obligations in the dealings of organised peoples

with one another; and (d) encourage settlement of international disputes by

arbitration.

The Protection of Human Rights Act, 1993: Pursuant to the direction

enshrined in Art. 51 of the constitution and International Commitments,

Parliament has passed the Protection of Human Rights Act, 1993. The Act

provides for the setting of a National Human Rights Commission and

Human Rights courts to meet the growing concern for human rights in the

country and abroad. Similar commission may be set up in the state also.

7. Organisation of village Panchayats Art. 40: The object of this Article is to

introduce democracy at the grass root level.

Implementation of the Directive Principles

As we know, the Directive Principles do not enjoy judicial sanctions as is

the case with fundamental rights. Thus, the implementation of these

principles depends upon the sweet will and available resources of the state.

However, since these principles aim at the establishment of a welfare state of

India, the successive governments have adopted measures to implement

them through separate legislative measures.

The constitution has been amended, successively (eg. 1st, 4th, 17th, 24th, 25th,

42nd. 44th amendments) to modify those fundamental rights by reason of

whose existence the state was experiencing difficulty in effective agrarian,

economic and social reforms which are envisaged by the directive principles.

The unspectacular implementation of the directive principles is mainly on

account of the resource crush and lack of political will or foresight. Poverty,

eradication, education, betterment of the backward classes conditions are a

few areas where the directives have particularly failed to show results.

Though implementation has been far from satisfactory, the state is showing

genuine will to implement the directive principles. In electoral politics, no

government may with impunity, ignore welfare-politics with regard to public

health, education, economic equality, position of women, children and

backward classes. In totality the directive principles operate well in the

planning process, but still have not been fully translated into action. It

cannot be denied that various governments have put in some efforts in this

direction.

The directive in Art. 39(b) has influenced legislators to fix land ceilings,

remove intermediaries such as zamindar, abolish hereditary proprietors, etc.

and made the tiller of the soil real owners of the land. The enactment of the

Hindu Succession Act (1950) have been important steps to implement the

directive principles of Uniform Civil Code.

In order to raise the standard of the poor particularly in rural areas as

prescribed in Art. 47, the government of India has launched various schemes

such as community development programme of 1952, IRDP, Drought Prone

Area Programme, Desert Development Programme and National Rural

Employment Guarantee Programme.

Difference/Relationship between DPSP and Fundamental Rights

The relationship or difference between DPSP and fundamental rights are as

follows:

1. The directive principles cannot be enforced by the courts; they are

declaratory while fundamental rights are enforced by the courts; they are

mandatory.

2. The directive principles and instrument of institutions of the government

while the fundamental rights are limitation upon the state actions.

3. The directive principles contains positive commands to the state to

promote a social and welfare state while the fundamental rights contain

negative injunctions to the state no to do various things.

4. The directive principles set the guidelines, for achieving socialistic goals

through democratic methods while the fundamental rights guarantees

some basic rights to individuals.

5. The directive principles are required to be implemented by legislation;

while fundamental rights are not required to be implemented by

legislation.

6. 25ht amendment 1971 added Art. 31-C in the constitution; which

provided that a law for implementing directives contained in Art. 39(b)

and (c) could not be struck down on the ground that it contravened rights

conferred by Art. 14, 19 or 31.

7. 42nd amendment, 1976 widened the scope of Art. 31-C so as to cover all

directive principles. Thus it gave precedence to all the directive principles

over the fundamental right contained u/Art. 14, 19 or 31. However, this

portion of 42nd amendment was struck down by SC in Minerva Millsvs

UOI.  Thus, it is inoperative now.

The leading cases on the relationship between the fundamental rights and the

DPSP are as follows:

1. State of Madras vsChampakamDorairajan, AIR 1951 SC 228: in this

case the order of Madras government was challenged; which fixed quotas

for admission to medical and engineering colleges for different

communities. The government contended that the order was passed u/Art.

46 of the constitution.

The court held that, “the DPSP have to conform and run as subsidiary to

the chapter of fundamental rights”, because the latter are enforceable in

the principles cannot override the fundamental rights. The court held that

the order of Madras Court was valid.

2. In RE Kerala Education Bill, AIR 1957 SC 956, the court observed

that though the directive principles cannot override the fundamental

rights, nevertheless in determining the scope and ambit of rights the court

may adopt the principles of harmonious construction and should attempt

to give effect to both as much as possible.

3. Keshava Nanda Bharativs State of Kerala, AIR 1973 SC 1461: In this

case, insertion of Art. 31-C was questioned. The SC by 7-6 majority

overruled the Golaknath’s case which denied parliament the power to

amend fundamental rights of citizens. The court observed that the

fundamental rights and the DPSP are meant to supplement one another. It

can well be said that the directives prescribed the goal to be attained and

fundamental rights laid down the means by which the goal is to be

achieved.

Supporting the amendments Mathew J. explain the importance of the

DPSP, thus:

“I think there are right which are inherent in human beings

because they are human beings whether you call them natural

rights or by some other application is immaterial. As the

preamble indicates, it was to secure the basic human rights like

liberty and equality that the people gave into themselves the

constitution and these basic rights are essential features of the

constitution; the constitution was also enacted by the people to

secure justice – political, social and economic. Therefore, the

moral rights embodied in part IV of the constitution are equally

an essential feature of it, the only difference being that the moral

rights embodied in part IV are not enforceable as against the

state be a citizen in a court of law in case state fails to

implement its duty, but nevertheless they are fundamental in the

governance of the country and all the organs of the state

including the judiciary, are bound to enforce those directives.

The fundamental rights themselves have no fixed content most of

them are mere empty vessels into which each generation must

pour its content in the light of its experience. Restriction,

abridgement, curtailment and even abrogation of these rights in

circumstances not visualized by the constitution-makers might

become necessary.”

Delivering the leading majority judgment Sikri C.J. said, “ the

expression amendment of constitution” in Art. 368 means any change

in any of the provisions of constitution within the broad contours of

the preamble and the constitution to carry out the objectives in the

preamble and the directive principles, applied to fundamental rights

also. It would mean that while fundamental rights cannot be

abrogated, reasonable abridgement of fundamental rights can be

affected in the public interest.

The Chief Justice said, “if this meaning is to be given, it would

enable parliament to adjust fundamental rights in order to secure what

the directive principles direct to be accomplished, while maintaining

the freedom and dignity of every citizen.

4. Minerva Millsvs UOI, AIR 1980 SC 1789: In this case, Art. 31-C as

amended by 42nd amendment was challenged on the ground that it

destroys the “basic features” of the constitution. The SC struck down

Art. 31-C as amendment by 42nd amendment as unconstitutional.

The majority observed that the constitution is founded on the bed rock

of the balance between part III and IV. To give absolute primacy to

one over the other is to disturb the harmony of the constitution, which

is the essential feature of the basic structure. The goals set out in Part

IV have to be achieved without the abrogation of the means provided

by part III.

5. State of Tamil Nadu vs Abu KavurBai, AIR 1984 SC 626: In this

case the SC held that although the directive principles are not

enforceable yet the court should make a real attempt at harmonizing

and reconciling the directive principles and the fundamental rights

and any collision between the two should be avoided as far as

possible.

6. BandhuaMuktiMorchavs UOI, AIR 1984 SC 802: In this case, the

SC has held that although the directive principles are enforceable by

the court and the courts cannot direct the legislature or executive to

enforce them, once a legislation in pursuance of them has been

7. Unni Krishna vs State of A.P., [1993 (1) SCC 645]: In this case, the

passed, the courts can order the state to enforce the law, particularly

when no-enforcement of law leads to denial of a fundamental right.

SC held that the fundamental rights and directive principles are

supplementary and complementary to each other and the provisions in

part III should be interpreted having regard to the preamble and

directive principles.

5. Rights of the Minorities

There are many theocratic countries where equal rights are not extended toall of

its citizens. They have categorized citizens according to their believes. The

rights are also attached differently, we must thank the fathers of our constitution

who envisioned equal rights to all citizens and added special rights to Religious

and Linguistic Minorities. The Indian constitution guarantees equal rights to all

its citizens, violation of which by the State or Central Government can be

challenged in the High Court or Supreme Court as per the Article 32 of the

Constitution, such cases are taken up with utmost urgency. Article 14 of the

constitution states that, ‘the State shall not deny to any pers on equality before

the law or the equal protection of the laws within territory of India.’

It gives equal status to all citizens in freedom and dignity. It further makes clear

in Article 15, ‘the state shall not discriminate against any citizen on grounds

only of religion, race, caste, sex, place of birth, or any of them, and it offers,

‘equal access to public facilities.’ The 93rd amendment added a new clause -

Clause 5 - to Article 15. This enables the enactment of laws, makingspecial

provisions for the socially and educationally backward classes, theScheduled

Castes and the Scheduled Tribes in educational institutions including private

educational institutions, except in minority institutions.

It is good to understand the Directive Principles and Fundamental Rights.

‘Fundamental rights are legally enforceable and guaranteed rights but directive

principles are not enforceable in any court of law. But under article 31-C, a DP

may be framed as law even if it abridges fundamental rights.  The 42nd

amendment act allowed DPs to usurp FPs.’ Therefore the reservation policy is a

directive principle and it can be formulated as per the requirements. It makes

clear that the policy on reservation is a directive principle to help asocially

week entity to become better.

The constitution positively undermined the division of opportunities on the

basis of birth to any particular entity. It provides equal opportunities in

employments which is made clear in Article 16 ‘there shall be equality of

opportunity for all citizens in matters relating to employment or appointment to

any office under the state’. It also spells out in clear terms that, ‘no citizen shall

on grounds only of religion, race, caste, sex, descent, place of birth, resident or

any of them be ineligible for or discriminated against in any respect of any

employment or office under the State.’ It is also to be noted that the constitution

provides an additional provision to the government to enact laws to make sure

that no section of thesociety is left out. The Article 16(4) point out that

‘Nothing in this article shall prevent the State from making any provision for

the reservation of posts in favour of any backward class of citizens, which in

the opinion of state is not adequately represented in the services under the

state’. The constitution has not defined in clear terms what does it mean by

backwardness and how do we determine the backwardness. It has definitely

raised questions.

Education is seen as the only means to progress for an individual and society at

large. So the Article 29 states that ‘no citizen shall be denied admission into

any educational institution maintained by the State or receiving aid out of the

State funds on ground only of religion, race, caste, language, or any of them.’ It

gives a feeling that unaided educational institutions does not bind by this

Article. But opportunity is equally distributed to all.

The constitution of India is very clear in terms of Minority rights. The Indian

Constitution very well protects the minorities and it provides opportunity to

develop to its fullness. The recent communal clashesand accusations on

Minorities raises a question that whether the constitutionalrights are exercised

well? There is no political will or leadership to pursue the cause of the Minority

Community.

The Constitution nowhere defines the terms 'minority', nor does it lay down

sufficient indicia to the test for determination of a group as minority.

Confronted, perhaps, with the fact that the concept of minority, lie its problem,

was intercalate, the framers made no efforts to bring it within the confines of a

formulation. Even in the face of doubts being expressed over the advisability of

leaving vague justiciable rights to undefined minorities, the members of the

Constituent Assembly made no attempt to define the term while article 23 of

the Draft Constitution, corresponding to present articles 29 and 30, was being

debated, and, presumably left it to the wisdom of the courts to supply the

omission.

However, as the following would show, the opinions of the courts on the first

question appear to be the result of a half-hearted attempt, and, only indicate the

futility of depending on them in any search for an answer to the second

question.

What is a Minority? The word minority has not been defined in the

Constitution. The Motilal Nehru Report (1928) showed a prominent desire to

afford protection to minorities, but did not define the expression. The Sapru

Report (1945) also proposed, inter alia, a Minorities Commission but did not

define Minority. The U.N. Sub-Commission on Prevention of Discrimination

and Protection of Minorities has defined minority as under:

1) The term 'minority' includes only those non-documents group of the

population which possess and wish to preserve stable ethnic, religious or

linguistic traditions or characteristics markedly different from those of the rest

of the population;

2) Such minorities should properly include the number of persons sufficient by

themselves to preserve such traditions or characteristics; and

3) Such minorities should be loyal to the state of which they are nationals.

The initial courtroom attempt to answer the first question was made in In re

Education Bill where the Supreme Court, through S.R. Das C.J., suggesting the

techniques of arithmetic tabulation, held that the minority means a "community,

which is numerically less than 50 percent" of the total population. This

statistical criterion prevail with the Kerela High Court also which, in

A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant

to the Supreme Court.

The 'definition' refers to group of individual who are particularly smaller as the

majority in a defined area. It however does not indicate as to what factor of

distinction, subjective or objective are to be taken as the test for distinguishing

a group from the rest. Thus, while considering 'minority', a numerically smaller

group, as against the majority in a defined area, some place emphasis upon

certain characteristics commonly possessed by the members constituting the

minority and, to them, these characteristics serves as objective factors of

distinction. In this sense the term used to cover "racial, religious or linguistic

sections of the population within a State which differ in these respects from the

majority of the population."

Minority in other sense also means, a group constituting a minority group have

a feeling of belonging to one common unit, a sense of akinness or community,

which distinguishes from those belonging to the majority of the inhabitants.

They are "group held together by ties of common descent, language or religious

faith and feeling themselves different in these respects from the majority of the

inhabitants of the given political entity." There are also those who define

minority in terms of relationship between the dominant groups and minority. To

them it is much more important "to understand the genesis of the relationship

between dominant group and minority then it is to know the marks by the

possession of which people is identified as member of either." Rose defined

minority as a "group of people differentiated from others in the same society by

race, nationality, religion, or language - who both think of themselves as a

differentiated group and are though of by others as a differentiated group with

negative connotation."

Thus most of the definitions explained above place emphasis either upon

certain common characteristics present among the members of the groups

which serve as the marks of distinction and such objective test, and it is only in

some cases that the factor of relationship between the dominant and non

dominant group is regarded as the main determinant of minority status which,

in turn, at least some cases, renders relative numbers in and out of the group

concerned as irrelevant for definitional purpose.

A 'consciousness' of the difference with the majority on the basis of certain

characteristics is, therefore, considered as a distinguishing mark, and as such a

subjective element. thus, the definition which lays emphasis upon certain

subjective factors such as 'feeling' or 'consciousness' provide a test which is too

vague and uncertain, and more psychological in nature than real. Every

situation may not necessarily involve the assumption that the group in order to

deserve the title of 'minority' must be distinguishable from the majority by the

presence of the feeling or consciousness of its being different from the majority.

A group distinguishable from others by the possession of certain objective

characteristics, such as language, may not have a feeling or consciousness of its

distinct status of being counting as minority. The most acceptable definitions,

given by the Human Rights Commission, is not beyond the reach of argument.

That definition appears to be confined to those non dominant groups only

which, apart from having certain objective characteristics that are distinctively

of their own, wish to preserve the distinctive identities and are not willing to be

assimilated with the rest of the population.

No definition comes out to be comprehensive to cover all the varied situations,

illustrates the difficulty experienced in assigning limits to concept of minority.

This must remain the possible explainable reason why courts have not ventured

to formulate a general definition.

Indeed, as far as the limited purpose of article 30 is concerned, such a venture

would have been rather unnecessary too. For, religion and language being the

criteria indicated in article 30, a pre-condition for the latter acceptability, the

Constitution itself tends to confine the tasks of the courts to the ascertainment

whether the group claiming constitutional protection is the group identifiable by

the characteristics of religion or language and is numerically non dominant. The

courts have therefore, only to be sure for themselves that the basis of claim to

protection is ether religion or language.

Interpreting the words, "based on religion" in article 30, the Delhi High Court

rightly pointed out that the words would mean that "the only or the principal

basis pf the 'minority' must be their adherence to one of the many

religions…and that the other features of the minority are subordinate to the

main feature, namely, its separateness because of the religion." A similar

interpretation can also be placed on the words 'based on language'. That being

so, it can be concluded that for the purpose of article 30, a majority means a

non-dominant collectively distinguishable from the majority of population by

the objective factors of religion or language or language or a combination of

Constituent Assembly Debate:The whole debate in the Constituent Assembly

on article 23 of the Draft Constitution which later assumed the shape of the

present article 29 and 30, revolve round this issue: what rights could or should

be conceded to minorities? The reference to minorities was a reference to none

other than Indian minorities existing in India. The original draft of the

fundamental rights submitted to the Constituent assembly on April 16, 1947 by

the Sub-Committee on Fundamental Rights did not contain any provision

corresponding to article 30(1) and did not even refer to the word minority. The

letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same

date when, along with some other rights, the rights now forming part of article

30(1) was proposed, made a reference on the term "national minorities".

The Drafting committee, however, sought, to make a distinction between the

rights of any section of the citizen to conserve its language, script or culture and

the right of the minorities based on religion or language to establish and

administer educational institutions of their choice and for this the committee

omitted the word 'minority' in the earlier part of the draft article 23

corresponding to article 29, while it retained the word in the latter part of the

draft article 23 which now forms part of the article 30(1).

Ambedkar sought to explain the reason the reason for substitution in the Draft

Constitution of the word minority by the words "any section" observing:

It will be noted that the term minority was used therein not in the technical

sense of the word 'minority' as we have been accustomed to use it for the

purpose of certain political safeguards, such as representation in the

Legislature, representation in the service and so on. The word is used not

merely to indicate the minority in the technical sense of the word, it is also used

to cover minorities which are not minorities in the technical sense, but which

are nonetheless minorities in the culture and linguistic sense. That is the reason

why we dropped the word "minority" because we felt that the word might be

interpreted in the narrow sense of the term when the intention of this

House….was to use the word 'Minority' in a much wider sense so as to give

cultural protection to those who were technically not minorities but minorities

nonetheless.

Ambedkar's explanation that the right was available not only to minorities in

the 'technical sense' but also to minorities in the 'wider sense' has an obvious

reference only to that part of Draft article 23 which now forms part of article

29(1) and not to that which is now clause (1) of article 30. His expiation,

therefore, may be taken to be an attempt to broaden the scope of clause (1) of

article 29 only so as to include within the term 'minority' other minority groups

also, as contemplated and illustrated by him, and thus to confine article 30(1) to

those minorities which he described as minorities in the technical sense, were

politically recognized and the most prominent amongst them were represented

in the Constituent Assembly also.

The whole problem, as far as this part of constitution is concerned, that engaged

considerable time and efforts of the framers was to achieve a consensus an a

constitutional arrangement, between the numerically dominant majority

considered as such on the national scene and the minorities referred to above- a

solution which could give the minorities a feeling of security against

discrimination, and security against interference with those characteristics

which had divided them apart from the majority. And, it is too obvious to be

noted that, at no stage was any section of this majority ever treated as 'minority'.

If these assumptions as accepted as truly reflecting the intention of those who

drafted and incorporate these provision in the constitutional document, with a

wishful hope that they were rendering a constitutional solution to the problem

of Indian minorities, it may be argued that where a minority is the historical or

national context and its claim is based on religion it must be defined and

ascertain in terms of the population of the whole country, irrespective of its

being in numerical majority in any particular state; and, where a group in not a

minority considered as such in the national context, but is still definable as

'minority' under Ambedkar's stretched meaning of the term, it may be

ascertained with reference to the population of the state concerned. The

argument is correct, it is submitted, if the provision in the question are viewed

against the historical prospective in which they were adopted, and are construed

to carry into effect the true spirit and intention of the constitution.

Protection of Interest of Minorities:Article 29 of the Constitution of India

defines the protection of interest of minorities: -

1) Any section of the citizen residing in the territory of India or any part thereof

having a distinct language, script or culture of its own shall have right to

conserve the same.

2) No citizen shall be denied admission into any educational institution

maintained by the State receiving aid out of State funds on grounds only of

religion, race, caste, language or any of them.

Clause (1) gives protection to every section of the citizens having distinct

language, script or culture by guaranteeing their right to conserve the same. If

such section desires to preserve their own language and culture, the state would

not stand in their way. A minority community can effectively conserve its

language, script or culture by and through educational institutions and therefore

necessary concomitant to the right to conserve its distinctive language, script or

culture and that is what is conferred on all minorities by article 30(1). But

article 29(1), neither controls the scope of article 30(1) nor is controlled by that

article. The scope of the two is different. Article 29(1) is not confined to

minorities but extends to all sections of citizens. Similarly article 30(1) is not

confined to those minorities, which have 'distinct language, script or culture' but

extends to all religious and linguistic minorities. Further, article 30(1) gives

only the right to establish and administer educational institutions of minorities'

choice while article 29(1) gives a very general right 'to conserve' the language,

script or culture. Thus, the right under article 30(1) need not be exercised for

conserving language, script or culture.

Clause (2) relates to admission into educational institutions, which are

maintained or aided by state funds. No citizen shall be denied admission in such

institutions on grounds only of religion, race, caste, language or any of them.

Article 15 prohibits discrimination against citizen on ground of religion, etc.

but the scope of two articles is different. Firstly, article 15(1) protects all

citizens against the state where as the protection of article 29(2) extends to the

state or anybody who denies the right conferred by it.

Secondly, article 15 protects all citizens against discrimination generally but

article 29(2) is a protection against a particular species of wrong, namely,

denial of admission into educational institutions maintained or aided by the

state. Finally, the specific grounds on which discrimination is prohibited are not

the same in two articles. 'Place of birth' and 'sex' do not occur in article 29(2),

while 'language' is not mentioned in article 15.

The right to admission into an educational institution is a right, which is an

individual citizen, has as a citizen and not as a member of a community or class

of citizen. Hence a school run by a minority, if it is aided by state funds, cannot

refuse admission to children belonging to other communities. But the minority

community may reserve up to 50% of the seats for the members of its own

community in an educational institution established and administered by it even

if the institution is getting aid from the State. The state, however, cannot direct

minority educational institutions to restrict admission to the members of their

own communities. Article 29(2), however, does not confer a legal right on the

members belonging to other communities to freely profess, practice and

propagate their religion within the precincts of a college run by a minority

community. Article 29(2) cannot be invoked where refusal of admission to a

student is on the ground of his not possessing requisite qualifications or where a

student is expelled from an institution for acts of indiscipline.

To overcome the conflict with article 15 as well as article 29 the Constitution

(First Amendment) Act, 1951, added clause (4) to article 15 to the effect that

nothing in article 15 and article 29(2) shall prevent state from making any

special provision for the advancement of any socially and educationally

backward classes of citizen or for the schedule caste and the schedule tribes.

The state is empowered to reserve seats in state colleges for socially and

educationally backward classes of citizen or for SC and ST.

Rights of Minority to Establish and Administer Educational Institutions:Article

30 of the Constitution of India defines Rights of Minority to Establish and

Administer Educational Institutions: -

1) All minorities, whether based on religion or language, shall have the right to

establish and administer educational institutions of their choice.

[1-A) In making any law providing for the compulsory acquisition of any

property of an educational institution establish and administered by a minority,

referred in clause (1), the State shall ensure that the amount fixed by or

determined under such law for the acquisition of such property is such as would

not restrict or abrogate the right guaranteed under that clause.]

2) The State shall not, in granting aid to educational institutions, discriminate

against any educational institution on the ground that it is under the

management of a minority, whether based on religion or language.

Clause (1) gives rights to all minorities based on religion or language the right

to establish and administer educational institution of their own choice. Article

29 and 30 are grouped together it will wrong to restrict the rights of minority to

establish and administer educational institution concerned with language script

and culture of the minorities. The reasons are: Firstly, article 29 confers the

fundamental rights on any section of the citizen which will include the majority

also where as article 30(1) confers all rights on all minorities. Secondly, article

29(1) is concerned with language, script or culture, whereas article 30(1) deals

with minorities based on religion or language. Thirdly, article 29(1) is concern

with the right to conserve language, script or culture, whereas article 30(1)

deals with right to establish and administer educational institutions of the

minorities of their choice. Fourthly, the conservation of language, script or

culture under article 29(1) may be by means wholly unconnected with

educational institutions, and similarly establishment and administer educational

institutions by a minority under article 30(1) may be unconnected with any

motive to conserve language, script or culture. A minority may administer an

institution for religious education, which is wholly unconnected with any

question of conserving language, script or culture. It may be that article 29(1)

and article 30(1) overlap, but the former cannot limit the width of the latter. The

scope of article 30 rests on the fact that right to establish and administer

educational institution of their own choice is guaranteed only to linguistic or

religious minorities, and no other section of citizens has such a right. Further

article 30(1) gives the right to linguistic minorities irrespective of their religion.

It is, therefore, not at all possible to exclude secular education from article 30.

The expression 'minority' in article 30 remains undefined though the court has

observed that it refers to any community which is numerically less than 50% of

the population of a particular state as a whole when a law in consideration of

which the question of minority right is to be determined as a State law. A

community, which is minority in specific area of the State though a majority in

the state as a whole, would not be treated as minority for the purpose of this

article. A minority could not also be determined in relation to entire population

of the country. If it was a state law, the minorities must be recognized in

relation of that state. But the fact that the expression minority an article 30(1) is

used to distinct from 'Any section of citizen' in article 29(1) lends support to the

view that article 30(1) deals with national minorities or minorities recognized in

the context of entire nation. In that case, however, article 30(1) would become

inapplicable to the national majority even if it is a minority in any particular

state, e.g., Hindus in Punjab or Jammu and Kashmir.

Although article 30(1) does not speak of citizens, the minority competent to

claim the protection of that article must be a minority of person residing in

India. 'The minority under article 30 must necessarily mean those who farm a

distinct and identifiable group of citizen in India'. Article 30(1) does not confer

upon foreigners not residents in India the right to set up educational institutions

of their choice. The right conferred on minorities is to establish educational

institutions of their choice. It does not say that minority based on religion

should establish educational institutions for teaching of their own language

alone. The article leave it to their choice to establish such educational

institutions as will serve both the purpose, namely, the purpose of conserving

their religion, language, or culture, and also the purpose of giving a thorough

general education to their children. Minorities are, however, not entitled to have

educational institutions exclusively for their benefit.

In D. A. V. College v. State Of Punjab, it was observed that, a linguistic

minority for the purpose of art. 30(1) is one which must at least have a separate

spoken language. It is not necessary that that language should also have a

distinct script for those who speak it to be a linguistic minority. Religious or

linguistic minorities should be determined only in relation to the particular

legislation which is sought to be impugned, namely that if it is the State

Legislature these minorities have to be determined in relation to the population

of the State. AryaSamajis have a distinct script of their own, namely Devnagri

therefore they are entitled to invoke the right guaranteed under art. 29(1)

because they are a section of citizens having a distinct script and under art.30(1)

because of their being a religious minority. Sub-sections (2) and (3) of s. 4 do

not in our view offend by themselves any of the rights of the petitioners either

under art. 29(1) or art.30(1) of the Constitution. Nowhere there is a mandate for

compelling Colleges affiliated to it either to study the religious teachings of

Guru Nanak or to adopt in any way the culture of the Sikhs.

Thus religious or linguistic minorities should be determined only in relation to

the particular legislation which is sought to be impugned, namely that if it is the

State Legislature these minorities is to be determined in relation to the

population of the State.

It was held that, religious instruction is that which is imparted for inculcating

the tenets, the rituals, the observances, ceremonies and modes of worship of a

particular sect or denomination. To provide for academic study of life and

teaching or the philosophy and culture of any great saint of India in relation to

or the impact on the Indian and world civilizations cannot be considered as

making provision for religious instructions. The State of Punjab is created as a

unilingual State with Punjabi as its language and if provision is made for study

of Punjabi language that does not furnish a ground for discrimination nor can

the provision for study of the life and teachings of Guru Nanak afford any cause

for complaint on grounds of violation of art. 14 of the Constitution. The right to

form association implies that several individuals get together and form

voluntarily an association with a common aim, legitimate purpose and having a

community of interest. The right extends inter alia to the formation of an

association or Union. Section 5 of the impugned Act does not effect the right of

D.A.V. College Trust and Society to form an association. Therefore, there is no

infringement of art. 19(1)(c).

The right conferred on minorities is to establish educational institutions of their

choice. It does not say that minority based on religion should establish

educational institutions for teaching of their own language alone. The article

leave it to their choice to establish such educational institutions as will serve

both the purpose, namely, the purpose of conserving their religion, language, or

culture, and also the purpose of giving a thorough general education to their

children. Minorities are, however, not entitled to have educational institutions

exclusively for their benefit.

Clause (2) is only a phase of non-discrimination clause of the constitution and

does not derogate provisions made in clause (1). The clause is expressed in

negative terms: the state is therefore enjoined not to discriminate in granting aid

to educational institutions on the ground that the management of the institutions

is in the hands of minority, religious or linguistic. The clause does not mean

that the state is competent otherwise to discriminate so as to impose restrictions

upon the substance of rights to establish and administer educational institutions

by minorities. The rights established by article 30 (1) is intended to be a real

right for the protection of the minorities in the matter of setting up of education

institution of their choice.

Kerla Education Bill CaseThe article first came up for interpretation before a

seven judge Constitution Bench constituted to consider the reference made by

the President under article 143 in In re Kerla Education Bill sponsored by the

Communist Government of the state which was stoutly opposed by Christians

and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke

for six judges- the sole dissent by justiceVenkataramaAiyar being confined to

the question whether minority institutions were entitled also to recognition and

state aid as part of the right guaranteed by article 30(1). C. J. Das held, inter

a) An institution, in order to be entitled to the protection, need not deny

admission to members of other communities.

b) It is not necessary that an institution run by religious minority should impart

only religious education or that one run by the linguistic minority should teach

language only. Institution imparting general secular education is equally

protected. The minority has a right to give "a thorough, good general

education".

c) Grant of aid or recognition to such institution cannot be made dependent on

their submitting to such stringent conditions as amount to surrendering their

right to administer to them. However the right to administer does not include

the right to misadministration reasonable regulations can be made.

d) Regulation prescribing the qualifications for teachers was held reasonable.

Those relating to protection and security of teachers and to reservation in favor

of backward classes which covered government schools and aided schools

alike, were "perilously near violating that right", but "at present advised" were

held to be permissible regulations. Provision centralizing recruitment of

teachers through State Public Service Commission and taking over the

collection of fees etc. were held to be destructive of rights of minorities to

manage the institutions.

Clauses of the Bill, which authorized the taking over of management in the

event of specified failings, in effect, annihilated the minorities' right to

administer educational institutions of their choice.

Minority Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a). Thus while it is

true that it is only the minorities whose right to establish and administer

educational institutions is mentioned n article 30(i) it dos not follow the same is

denied to the majority communities. It was considered necessary like a special

mentioned for the right of minorities by way of extra assurance to it is not

correct to say that minorities were considered backward and needed

concessions though article 30(i) to bring them up. The object was to make that

they will not be discriminated against. It was not intended to pamper as favored

communities. It should follow therefore form articles 14 and 15 majority

communities have right to similar treatment at the hands of the in the matter of

recognition affiliation government aid or non displacement management in

respect of educational institutions established by majority as accorded to

minority institutions of course condition can and to be imposed in regard to aid,

affiliation and recognition in order to ensure standard of teaching but the same

have to be uniformly onerous and not be so drastic as to involve surrender by

the community or founder or management of its right to establish and

administer the institution.

The thesis that the majority in a system of adult franchise hardly needs any

action it can look after itself and protect its interests any measure wanted by

majority can without much difficulty be brought on the statute book because

majority can bet that done by giving a mandate to the elected representatives

only the minorities who need protection is with the utmost respect to the

anguished judge to naive to command acceptance. Modern parliamentary

democracy are run on a party system which in India the more so in the post

mandal is built largely on the basis of caste and communal co9nbination

Government are returned to power not on the basis of issues or mandates.

Managements functional institution do not work for a vote bank while their

teachers do that. Religions majority namely Hindus are not a homogeneous

monolith. It is a much-divided society. There are caster and sub caste division

and the same court defence to the legislative and executive wisdom on article

has no made things easier electoral arithmetic has led to all sorts of and

combination.

Apart from articles 15 and 15(I) this right to establish and administer

educational institutions also flows as seen above form articles 19(i) (g) and

26(a), which make no distinction between majority and minority communities.

The right of students to education as a fundamental right under article 21, also

simples that they as well as their parents have the right to choice of institutions

in which they would like the former to be educated. Every community has a

right to found and administer educational and other charitable institutional and

to run them according subject perceptions of what is best of the community and

for the institution subject of perceptions of what is best for the community and

for the distinction for religion or language minority or majority.

The only consequence of this will be that provisions relating to displacing of

managements through statutory schemes of administration or through take over

of institutions and appointment of authorized controllers and also those

divesting the management of the powers of appointment and discipline

pertaining to teachers will have to be treated as unconstitutional in so far as

they relate to majority institutions too to the same extent as they have been

treated vis-à-vis minority institutions and it will not be such a bad thing from

the educational angle either the ground reality is that just as nationalization of

many private industries on ground of mismanagement by industrialists has

proved counter productive. so also has the taking over of the management

institutions. The cause for interference in each case was the acts of

mismanagement and dissipation on the party of private mil owners or school

college managers. But the bureaucrats displacing them have by and large not

felt any commitment to the industry institution at all and have succumbed to

political pressures with the result that things have only worsened instead of

improving. That is why they are now being re-privatized it is only though de

politicization of control over the institutions that the management can be better

and more evenly disciplined. Deprivation of management of their power in

regard to appointment and discipline of teachers has likewise led to a steep fall

in discipline and standard. Many teachers do not care to listen even to their

principal or head of department what to say of the management. Absenteeism

indulgence in private tuitions and running of coaching schools are the order of

the day. Of course regulatory provision to the same extent not more noels as

have been accepted to be necessary for the protection of teacher of minority

institutions would in any case continue in relation to teachers of majority

institutions also. The trend the work over is now for less and less of

government. If misadministration can be prevented in the case of minority

institutions without emasculating the management the same should be minority

institution too. As per Ray C.J. in St. Xavier's and per Jag Mohan Reddy J. all

institution irrespective of any denominational distinction should be places of

workshop of learning for students

Conclusion: The courts, however, seem to have been persuaded by practical

compulsion rather than be swayed away by a feeling of faithfulness to the spirit.

Their course of opinion seems to have been determined by some of the

followings:

i. That provisions in question seeks to protect minorities against state action,

which term includes laws and also under them, executive actions.

ii. That ours being a federal democratic system, political and legislative

processes operate not only from the national center of power but also from the

iii. That these states are autonomous in their respective legislative spheres-and

laws are passed by majority votes.

iv. That minorities, considered as much on the national level, do constitute

numerical majority in some states.

v. That these majorities may, by their laws, deny the protection to the non-

dominant group which the Constitution so emphatically seeks to secure.

vi. That these majorities may, by their numerically strength, overshadowed the

distinct shadow the distinct characteristics and individuality of the non-

dominant groups, and the latter may have to live under a psychological fear of

being discriminated and overwhelmed.

vii. That it was this fear in some sections of some minorities at least, which had

pervaded the politics the politics of pre-partition India, and that it was on this

premise that minority rights were demanded and conceded in Constitution

Assembly.

viii. That it is this fear, which still continues to be the core component of the

minority component.

ix. That the assurance to protection for minorities can tell its true meaning only

when a non-dominant group in a state is define and ascertain as 'minority'

where the law in question is a state law, eve though the group happens to be a

part of the 'majority', considered a majority in the context of the whole country.

x. That the same reason that became the basis for article 29 and 30 to find a

place in the category of justiciable Fundamental Rights must be valid in this

situation also.

Fundamental Rights

1. Fundamental Rights

Introduction: Fundamental rights are those rights which are regarded as

fundamental in every democratic system of government. They are so regarded

because they are vitally necessary for the attainment by the individual of his full

moral and spiritual stature. Without these rights, the individual’s moral and

spiritual life would remain stunted, and he would not be able to develop his

potentialities.

The constitution of India has embodied a number of Fundamental rights, which are

to act as limitations not only upon the powers of the legislature, but though the

model has been taken from the constitution of the United States, Indian

Constitution does not go so far, and rather effects a compromise between the

doctrine of Parliamentary Sovereignty and Judicial supremacy. On one hand, the

parliament of India cannot said to be sovereign in the English sense of legal

omnipotence, for the very fact that the parliament is created and limited by a

written constitution enables our parliament to legislate only subject to the

limitations and prohibition imposed by the constitution. If the distribution of

legislative powers etc., in case any of these limitations are transgressed, the

Supreme Court and the High Courts are competent to declare a law as

unconstitutional and void. So far as the contravention of fundamental rights is

concerned, the duty is especially enjoined upon the courts by the constitution, by

way of abundant caution. To this extent, our constitution follows the American

model rather than the English. But the powers of the judiciary vis-à-vis the

legislature are weaker in India than in the united states.

State u/Art 12

“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.

(i) Agency outside India – an instrumentality or agency of the state having

(ii) BCCI – BCCI is not financially, functionally or administratively

(iii) Cooperative Societies – The cooperative societies are not created by the

operations outside India must comply with labour legislation; Lena Khan

vs UOI: AIR 1987 SC 1515.

dominated by government not it is under control of government,

therefore not a state; Zee Telefilms ltd. vs UOI: AIR 2005 SC 2677.

Co-operative Societies Act, 1912 and they are not statutory bodies. They

are only functioning in accordance with the provisions of the act.

Moreover, the government has no shares in the cooperative societies.

There is no deep and pervasive state control. The management of the

societies does not vest in the government, or in the representatives of the

government bank. The management is, under the effective control of

committee elected by the members of the society. The statutory

(iv) Examples of authorities held to be state – The state bank of India as also

regulation or restriction in the functioning of the societies is not “an

imprint of the state u/Art. 12”. Hence no writ will lie against a

cooperative society governed by the Kerala Cooperative Societies Act; P.

Bhaskaranvs Additional Secretary, Agricultural (Co-operation)

Department, Trivandrum, AIR 1988 Ker 75.

the nationalized banks are ‘states’ within the meaning of Art. 12 of the

Constitution of India. The service of the workmen are also governed by

several standing orders and bipartite settlements which have the force of

law. The banks, therefore, cannot take recourse to ‘hire and fire’ for the

purpose of terminating the services of the employees; Bank of India vs

O.P. Swaranakar, AIR 2003 SC 858.

The children aid society should be treated as a state within the meaning

of Art. 12 as it is undoubtedly an instrumentality of state; SheelaBarsevs

Secretary, Children Aid Society: AIR 1987 SC 656.

This is inevitable consequence of “other authorities” being entities with

independent status distinct from the state and this fact alone does not

militate against such entities or institutions being agencies or

instrumentalities to come under the net of Art. 12 of the Constitution;

Mysore Paper Mills Ltd. vs Mysore Paper Mills officers Association:

(2002) 2 SCC 167.

The Rajasthan State Electricity Board is ‘state’ within the meaning of the

expression used in Art. 12 of the constitution so that it is amendable to

the writ jurisdiction u/Art.226 of the constitution; D.C.M. ltd. vs

Assistant Engineer (H.M.T. sub-division), Rajasthan State Electricity

Board, Kota, AIR 1988 Raj. 64.

There are tests formulated by several cases of the SC to find out whether

an institution is a ‘state’. There cannot indeed be a straight jacket

formula. It is not necessary that all the tests should be satisfied or

reaching the conclusion either for or against holding an institution to be

‘state’. In a given case, some of the features may emerge so boldly and

prominently that a second view may not be possible. There may yet be

other cases where the matter would be on the borderline and it would be

difficult to take one or other view outright; Tekrajvs UOI: AIR 1988 SC

469.

2. Other Authorities u/Art. 12

Judicial decisions have given a wide scope to the expression “other authorities” in

Article 12. The main theory evolved is that of “instrumentality or agency” of

government. This is a concept wider than a “department of the government”. It

embraces every public authority exercising statutory powers, every authority

created under statute and even a non-statutory authority exercising public

functions.

What is, and what is not a “state” has been the subject matter of rich case law

u/Art. 12. From the numerous decisions on the subject, a judgment of the Andhra

Pradesh HC has culled out certain propositions; (1987) 4 Reports 198(AP), decided

on 23rd January, 1987 (WP no. 3065/1978). The judgment says that the essential

tests to determine whether a particular institution is “other authority” within the

meaning of Article 12 are substantial financial aid, control by the government,

performance of public functions and entrustment of governmental activities. All of

these are not essential, and in a particular case, one or a combination of more than

one of them may suffice. In the leading case of Ajay Hasiavs Khalid Mujib, AIR

1981 SC 487, the regional engineering college was held to be a “state”.

P.N.Bhagwati, J. observed as under in that case:

“the constitutional philosophy of a democratic socialist

republic requires the government to undertake a multitude of

socio-economic operations and the government, having regard to

the practical advantages of functioning through the legal device

of a corporation embarks on myriad commercial and economic

activities by resorting to the instrumentality or agency of a

corporation, but this contrivance of carrying on such activities

through a corporation cannot exonerate the government from its

basic obligation to respect the fundamental rights and not to

override them. The mandate of a corporation may be adopted in

order to free the government from the inevitable constrains of red

tapism and slow motion but by doing so, the government cannot

be allowed to play truant with the basic human rights. Otherwise,

it would be the easiest thing for the government to assign to a

plurality of corporations almost every state business such as post

and telegraph, TV and radio, rail, road and telephones – in short

every economic activity – and thereby cheat the people of India

out of the fundamental rights guaranteed to them”

In the above judgment of the SC J. Bhagwati enunciated the following test for

determining whether an entity is an instrumentality or agency of the state:-

1. One thing is clear that if the entire share capital of the corporation is held by

the government, it would go a long way towards indicating that the

corporation is an instrumentality or agency or government.

2. Where the financial assistance of the state is so much as to meet almost

entire expenditure of the corporation, it would afford some indication of the

corporation being impregnated with governmental character,

3. It may also be a relevant factor whether the corporation enjoys monopoly

status which is the state conferred or state protected.

4. Existence of deep and pervasive state control may afford an indication that

the corporation is a state agency or instrumentality.

5. If the functions of the corporation of public importance and closely related

to governmental functions, it would be a relevant factor in classifying the

corporation as a instrumentality or agency of government.

6. Specifically, if a department of government is transferred to a corporation, it

would be a strong factor supportive of this interference of the corporation

being an instrumentality or agency of government.

The Delhi Transport Corporation is a “state” as decided in DTC vsMazdoor

Congress, AIR 1991 SC 101.

In Chanana Steel Tubes Pvt. Ltd. Vs H.P.S.I.D.C., AIR 2003 HP 36, it was held

that when ‘company’ is a wholly state government owned company incorporated

under the companies act, 1956, government has got pervasive control over this

company. Its managing director is appointed by the state government, as also other

officials are also appointed as directors. Thus, it is an “other authority’, within the

meaning of article 12.

Relevant case laws are :

(i) SomPrakashvs UOI: AIR 1981 SC 212

(ii) Tajinder Singh vs Bharat Petroleum Corp. Ltd.: (1986) 4 SCC 237

(iii) State of Punjab vs Raja Ram: (1981) 2 SCC 66

(iv) SukhdevvsBhagatram; AIR 1975 SC 1331

(v) K.S. Ramamurthy vs Chief commissioner, Pondicherry: AIR 1963 SC

1464

3. Reverse Discrimination

Reverse discrimination, also known as positive discrimination, is a

controversial specific form of discrimination against members of a dominant or

majority group, or in favor of members of a minority or historically

disadvantaged group. Groups may be defined in terms of race, gender, ethnicity,

or other factors. This discrimination may seek to redress social inequalities

where minority groups have been denied access to the same privileges of the

majority group. In such cases it is intended to remove discrimination that

minority groups may already face. "Reverse discrimination" may also be used

to highlight the discrimination inherent in affirmative action programs.

The law in some countries, such as the UK, draws a distinction between

Equality of Provision and Equality of Outcome, recognizing that identical

treatment may sometimes act to preserve inequality rather than eliminate it.

Opponents of this distinction may label it as an example of positive

discrimination.

Indian Law now provides a quota system whereby a percentage of posts are

reserved in employment in Government and in the public sector units, and in all

public and private educational institutions, except in the religious/ linguistic

minority educational institutions, in order to mitigate backwardness of the

socially and educationally backward communities and the Scheduled Castes and

Tribes who do not have adequate representation in these services and

institutions. The reservation policy is also extended to the Scheduled Castes and

Scheduled Tribes for representation in the Parliament of India. The central

government of India reserves 27% of higher education, and individual states

may legislate further reservations. Reservation cannot be exceeded 50%, as per

the rulings given by the supreme court, but certain Indian states like Rajasthan

have proposed a 68 % reservation which includes a 14% reservation for forward

castes.

Reservations are intended to increase the social diversity in campuses and

workplaces by lowering the entry criteria for certain identifiable groups that are

grossly under-represented in proportion to their numbers in the general

population. Caste is the most used criteria to identify under-represented groups.

However there are other identifiable criteria for under-representation—gender

(women are under represented), state of domicile (North Eastern States, as

Bihar and Uttar Pradesh are under-represented), rural people, etc. as revealed by

the Government of India sponsored National Family Health and National

Sample surveys.The underlying theory is that the under-representation of the

identifiable groups is a legacy of the Indian caste system. After India gained

independence, the Constitution of India listed some erstwhile groups as

Scheduled Castes (SC) and Scheduled Tribes (ST). The framers of the

Constitution believed that, due to the caste system, SCs and the STs were

historically oppressed and denied respect and equal opportunity in Indian

society and were thus under-represented in nation-building activities. The

Constitution laid down 15% and 7.5% of vacancies to government aided

educational institutes and for jobs in the government/public sector, as reserved

quota for the SC and ST candidates respectively for a period of five years, after

which the situation was to be reviewed. This period was routinely extended by

the succeeding governments.

Later, reservations were introduced for other sections as well. The Supreme

Court ruling that reservations cannot exceed 50% (which it judged would

violate equal access guaranteed by the Constitution) has put a cap on

reservations. However, there are state laws that exceed this 50% limit and these

are under litigation in the Supreme Court. For example, the caste-based

reservation fraction stands at 69% and is applicable to about 87% of the

population in the state of Tamil Nadu.

Court has put 50% cap on reservations in M.R. Balaji v Mysore: AIR 1963 SC

649. Almost all states except Tamil Nadu (69%, Under 9th schedule) and

Rajasthan (68% quota including 14% for forward castes, post gujjar violence

2008) has not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra

Pradesh tried to exceed limit in 2005 which was again stalled by high court.

SC in Indira Sawhney&Ors v. Union of India.AIR 1993 SC 477, upheld

Implementation of separate reservation for other backward classes in central

government jobs.

In Unni Krishnan, J.P. &Ors. Vs. State of Andhra Pradesh &Ors.: 1993 (1)

SCC 645, it was held that right to establish educational institutions can neither

be a trade or business nor can it be a profession within the meaning of Article

19(1)(g). This was overruled in T.M.A. Pai Foundation v. State of Karnataka

(2002) 8 SCC 481, P.A.Inamdar v. State of Maharashtra 2005 AIR(SC)

3226,Supreme court ruled that reservations cannot be enforced on Private

Unaided educational institutions.

4. Right to Equality vis a vis Reservation Policy in India

Introduction:-In the American Declaration of Independence, it is said that “All

men are created equal, that they are endowed by their creator with certain

unalienable rights.”  This notion of inalienable rights and their equal

distribution has emerged in the early 16th century in the works of the social

contractors- Hobbes Locke and Rousseau. John Locke said that the right to life,

liberty and property are natural rights which are enjoyed by everyone alike and

are not separable from the person. This gives us an idea that the right to equality

is more basic than natural law itself. Thus in its creation, the state is obliged to

provide for this right, not just legally but functionally.The preamble of India

constitution contains the phrase: “Equality- social political and economic”.

These are different types of equalities and the state has to ensure that its citizens

are provided with each and every one of these. Social equality is the most

common in pluralistic societies but no provision of law can be made in this

regard. So, it is done by means of the other two categories- political and

economic. Political inequality materializes from the said social inequality but as

politics is a government functionary, legislations are made to guarantee this

right. On the other hand economic inequality is a very practical phenomenon

and thus active steps can be taken to empower all people economically. This, in

retrospect, hampers social inequality because economic status is closely

connected with social status. Thus, the state has a burden to justify, through its

legislations and its implementation that equality is sought to be achieved and

only in doing so will it realize true equality.

Indian Law For Equality:-The constitution of India says, “The state shall not

deny to any person, equality before the law or the equal protection of the laws

within the territory of India.” this is the article 14 of our constitution which is

construed as one of the fundamental rights of the people living under it. The

provision is very clear. The phrase “equality before law” is an adaptation of a

postulate of the rule of law followed by the equity courts in England. It is the

quintessential principle to be set down before exercising any authority on a

group of people. Even when the British ruled over India, this was a prominent

legal provision. The glaring inequality that was followed under the British rule

is widely known. So equality as a concept is not debated upon but it is also very

complex and although every single country in the world which has a

constitution provides for this right, the implementation of this right varies.

Some stated follow formal equality as they have a more homogenous mixture of

population like the communist countries. Other states follow substantive

equality where there are already huge inequalities prevalent. The important

thing to note is that equality is a value that every government believes in but the

interpretations are varied and none of them have been proved wrong.

Reservation Policy In India:-In the case of India, the reservation policy has been

adopted for alleviating inequalities in the political and economic scenarios. This

is a method of achieving substantive equality. India has a pluralistic society and

the main forms of discrimination are caste and religion. India being a male

dominated society, sex is also an important basis for inequity. The constitution

swears to not discriminate on any of these grounds and hence we have a

reservation policy for the protection of the interests of all discriminated groups.

The problem arises in targeting this group and meeting the ends for which

reservation is created. In law, there are two principles that have to be complied

with before legislating it. First, there should be a rationale for creating the said

law and second, there should be nexus between the law and the goal sought to

be achieved. The rationale has been justified time and again by our legislators

and people have come to terms with the fact that there is no other way to

subdue discrimination than reservations. But is there a direct link between the

provisions of this policy and the ultimate goal of equality? The answer to this

question keeps changing from time to time and that is what we are trying to

analyze in this paper.

The minorities in India started getting recognized by law through the provision

of communal electorates. This was seen as one of the reasons for the partition of

India and Pakistan, but from the viewpoint of equality, this was one of the first

efforts to bring about political equality and avoid discrimination against

minority communities. The reservation policy in the basis of caste started when

the Simon Commission came to India with the rule of separate electorates and

reservations for depressed classes. But a concrete legislation was passed only

later on after independence when Dr. B.R. Ambedkar fought for the rights of

the SC’s, ST’S and OBC’s. During the constitutional assembly debates, he

supported the cause of backward castes time and again and believed that

reservation policy is the only way to eradicate these disparities. However, the

reservation policy was always a provisional one and not permanent. For years

now, the time limit has been increasing as the government did not feel that the

required amount of equality has been achieved in the social, economic or

political life of people.

The Rationale Of The Present Reservation System:-The question we need to ask

is if the present reservation system is a true reflection of the altruistic

persuasions of the legislators or that of their political interests and/or political

pressures. The truth is that inequality is prevalent everywhere in different

forms. The constitution only provides for or recognizes a part of them. For

example, disability is also grounds for discrimination. However, the limited

reservations made for them are never objected or extended. In public sector, 3%

is the reservation for disabled persons where as it is 27% for OBC’s when in

fact; the percentage of disabled people in India is more than the percentage of

OBC’s. Why is this so? Law is subject to the interpretation of the courts and the

dynamic nature of law finds its sanction in the opinion of the judiciary. But,

courts regularly deal with cases regarding reservations for SC/ST’s or OBC’s or

women, and not for the disabled. Does the meaning of equality change in every

context? To provide “equal opportunities” to the oppressed classes means, to

help them acquire their maximum potential- not to make things easier for them.

This is a lesson one should learn from the history of independent India.

The other issue under the system of reservations is that of the creamy layer. The

distance that we have travelled after enacting reservations has eliminated

certain disparities. Caste no longer can be the sole criterion for detecting

socially backward classes because some of them have achieved economic

status, thereby finding a social standing as well. Thus, in the Mandal

commission case, the court has observed that this particular strata of the society

which they termed as the “creamy layer” should be eliminated from such

reservation policies as it is hampering the goal of the provision. However, what

goes beyond my comprehension is that if a creamy layer exists despite being a

socially backward class, maybe the objective is achieved. The law has different

reasoning to support this policy from time to time but how would we identify

the situation where the “goal” is truly reached. Waiting for absolute equality is

not practical as it is only a utopist situation. Meanwhile resistance is offered by

the classes which are not socially backward, also for the reason of

discrimination. In such a situation what kind of help is the government

providing with the reservation scheme? This is the dilemma that is struck the

entire policy down.

Conclusion:-Majoritarianism is a common vice that persists in a democratic

society. As the government is chosen by the majority and every decision that is

taken depends upon the majority vote, the law tends to favour this majority. But

there are different ways of identifying this majority- educated people,

economically and socially powerful people, people of the forward caste,

Hindus, males, etc. some of these classes might overlap but the essence remains

the same. These are the people who make the law and whom the law favors.

However, in India, the constitution makers wanted to avoid this situation of

hierarchy and majority rule. A true democracy is established when all people

have the same ability to make the decisions regarding the government. For this

reason the reservation policy is adopted to bring this equality in thought and

goals. Reservations by themselves are not unfair, but they become so when the

ground for distinction loses its credibility. In case of India, that is what is

happening, because SC’s, ST’s and OBC’s are not purely classified as socially

backward and a line should be drawn somewhere. The violation of a principle

of equality reduces public confidence in the government. The loss of this

confidence prophecies anarchy and in a pluralistic democracy like ours, its very

important to maintain this fine balance between power and principle. Thus,

reservation maybe a means to achieve equality but if not administered properly,

it can also achieve inequality.

5. Reasonableness of Restrictions

Art. 19 of the constitution of India guarantees to the citizens of India the

following six fundamental freedoms:

(a) Freedom of Speech & Expression

(b) Freedom of Assembly

(c) Freedom to form Associations

(d) Freedom to Movement

(e) Freedom to reside & to Settle

(f) Freedom to Profession, Occupation, Trade & Business

The above freedoms are available only to citizens of India, and cannot be

claimed by a foreigner.

Freedom are not absolute – subject to reasonable restrictions :- These six

freedoms are however, not absolute. Absolute individual rights cannot be

guaranteed by any modern state. An organised society is the precondition of

civil liberties. There cannot be any right which is injurious to the community as

a whole. If people were given complete and absolute liberty without any social

control the result would be ruin. Liberty has got to be limited in order to be

effectively possessed. For liberty of one must not offend the liberty of others.

Justice Patanjalishastri in A.K. Gopalanvs State of madras, AIR 1951 SC

21observed, “man as a rational being desires to do many things, but in a civil

society his desires have to be controlled, regulated and reconciled with the

exercise of similar desires by other individuals.” The guarantee of each of the

above right is, therefore, restricted by the Constitution itself by conferring upon

the state a power to impose by law reasonable restrictions as may be necessary

in the larger interest of community. The restriction on these freedoms are

provided in clauses 2 to 6 of Art. 19 of the Constitution.

The restriction which may be imposed under any of the clauses must be

reasonable restriction. The restriction cannot be arbitrary. Hence a restriction to

be constitutionally valid it must satisfy the following two tests:-

(1) The restriction must be for the purposes mentioned in class 2 to 6 of Art. 19;

(2) The restriction must be reasonable restriction.

Test of ‘Reasonable Restriction’:- the restriction on the rights under Art. 19(1)

can only be imposed by a law’ and not executive or departmental

instructions.The phrase “reasonable restrictions” in Art. 19(6) means that the

restrictions imposed on a person in the enjoyment of his right should not be

arbitrary or of an excessive nature, beyond what is required in the interest of the

public. The SC has laid down the following guidelines for determining the

reasonableness of restrictions.

(1)  It is the courts and not the legislature which has to judge finally whether a

restriction is reasonable or not.

(2) The term ‘reasonable restriction’ in Art. 19(6) connotes that the limitation

imposed on a person in the enjoyment of his right should not be arbitrary or

of an excessive nature, beyond what is actually required in the interest of the

public. The word ‘reasonable’ implies intelligent care and deliberation, that

is, the choice, of a course which reasonably dictate.

(3)  There is no exact standard or general pattern of reasonableness that can be

laid down for all cases. Each case is to be judged on its own merits. The

standard varies with the nature of the right infringed, the underlying purpose

of the restrictions imposed, the extent and the urgency of the evil sought to

be remedied, the disproportion, of the imposition, the prevailing condition at

the time. These factors have to be taken into consideration for any judicial

verdict.

(4) The restriction must be reasonable from the substantive as well as procedural

standpoint. The court should consider not only the duration and extent of the

restriction but also the circumstances under which, and the manner in which

that imposition has been authorized.

(5)  A restriction which is imposed for securing the objects and laid down in the

DPSP may be regarded as reasonable restriction.

(6)  The court must determine the reasonableness of restriction by objective

standard and not by subjective one. In other words, the question is not if the

court feels the restriction to be reasonable but where a normal reasonable

man would regard the restriction to be reasonable.

(7)  A restriction to be reasonable must have a rational relation with the object

which the legislature seeks to achieve and must not be in excess of that

object.

(8) It is the reasonableness of restriction which is to be determined by the court

and not the reasonableness of the law. The court has only to see whether the

restrictions imposed on citizens rights are reasonable.

(9) Restrictions may also amount to prohibition under certain circumstances.

Thus, a law depriving a citizen of his fundamental right may be regarded as

reasonable restrictions, if it prohibits him to carry out dangerous trades such

as that of trade in liquor or cultivation of narcotic plants or trafficking in

women.

Rights available to citizen only:- The rights guaranteed by Art. 19 are available

only to citizens and not to an alien or a foreigner. A foreigner is not a citizen of

India and therefore he cannot claim a right u/Art. 19.

Union of India vs Naveen Jindal: (2004)2 SCC 476, held that right to unfurl

the national flag freely with respect and dignity is a fundamental right of a

citizen within the meaning of Art. 19(1)(a) of the constitution, being an

expression and manifestation of his allegiance and feelings and sentiments of

pride for the nation. But the same is not an absolute right but a qualified one

subject to reasonable restrictions under clause (2) of Art. 19. The Emblems and

Names (prevention of Improper use) Act, 1950 and the prevention of insults to

National Honour Acr, 1971 regulate the use of the national flag.

6. Right to life and personal liberty

Introduction:-The Constitution of India provides Fundamental Rights under

Chapter III.  These rights are guaranteed by the constitution. One of these rights

is provided under article 21 which reads as follows:-

Article 21. Protection Of Life And Personal Liberty: No person shall be

deprived of his life or personal liberty except according to procedure

established by law.

Though the phraseology of Article 21 starts with negative word but the word

No has been used in relation to the word deprived. The object of the

fundamental right under Article 21 is to prevent encroachment upon personal

liberty and deprivation of life except according to procedure established by law.

It clearly means that this fundamental right has been provided against state

only. If an act of private individual amounts to encroachment upon the personal

liberty ordeprivation of life of other person. Such violation would not fall under

the parameters set for the Article 21. in such a case the remedy for aggrieved

person would be either under Article 226 of the constitution or under general

law. But, where an act of private individual supported by the state infringes the

personal liberty or life of another person, the act will certainly come under the

ambit of Article 21. Article 21 of the Constitution deals with prevention of

encroachment upon personal liberty or deprivation of life of a person.

The state cannot be defined in a restricted sense. It includes Government

Departments, Legislature, Administration, Local Authorities exercising

statutory powers and so on so forth, but it does not include non-statutory or

private bodies having no statutory powers. For example: company, autonomous

body and others. Therefore, the fundamental right guaranteed under Article 21

relates only to the acts of State or acts under the authority of the State which are

not according to procedureestablished by law. The main object of Article 21 is

that before a person is deprived of his life or personal liberty by the State, the

procedure established by law must be strictly followed. Right to Life means the

right to lead meaningful, complete and dignified life. It does not have restricted

meaning. It is something more than surviving or animal existence. The meaning

of the word life cannot be narrowed down and it will be available not only to

every citizen of the country . As far as Personal Liberty is concerned, it means

freedom from physical restraint of the person by personal incarceration or

otherwise and it includes all the varieties of rights other than those provided

under Article 19 of the Constitution. Procedure established by Law means the

law enacted by the State. Deprived has also wide range of meaning under the

Constitution. These ingredients are the soul of this provision. The fundamental

right under Article 21 is one of the most important rights provided under the

Constitution which has been described as heart of fundamental rights by the

Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex

Court in Gopalans case that the contents and subject matter of Article 21 and

19 (1) (d) are not identical and they proceed on total principles. In this case the

word deprivation was construed in a narrow sense and it was held that the

deprivation does not restrict upon the right to move freely which came under

Article 19 (1) (d). at that time Gopalans case was the leading case in respect of

Article 21 along with some other Articles of the Constitution, but post Gopalan

case the scenario in respect of scope of Article 21 has been expanded or

modified gradually through different decisions of the Apex Court and it was

held that interference with the freedom of a person at home or restriction

imposed on a person while in jail would require authority of law. Whether the

reasonableness of a penal law can be examined with reference to Article 19,

was the point in issue after Gopalan’s case in the case of Maneka Gandhi v.

Union of India , the Apex Court opened up a new dimension and laid down

that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21

imposed a restriction upon the state where it prescribed a procedure for

depriving a person of his life or personal liberty. This view has been further

relied upon in a case of Francis Coralie Mullin v. The Administrator, Union

Territory of Delhi and others as follows: Article 21 requires that no one shall

be deprived of his life or personal liberty except by procedure established by

law and this procedure must be reasonable, fair and just and not arbitrary,

whimsical or fanciful. The law of preventive detention has therefore now to

pass the test not only for Article 22, but also of Article 21 and if the

constitutional validity of any such law is challenged, the court would have to

decide whether the procedure laid down by such law for depriving a person of

his personal liberty is reasonable, fair and just. In another case of Olga Tellis

and others v. Bombay Municipal Corporation and others , it was further

observed : Just as a mala fide act has no existence in the eye of law, even so,

unreasonablenessvitiates law and procedure alike. It is therefore essential that

the procedure prescribed by law for depriving a person of his fundamental right

must conform the norms of justice and fair play. Procedure, which is just or

unfair in the circumstances of a case, attracts the vice of unreasonableness,

thereby vitiating the law which prescribes that procedure and consequently, the

action taken under it.As stated earlier, the protection of Article 21 is wide

enough and it was further widened in the case of BandhuaMuktiMorcha v.

Union of India and others in respect of bonded labour and weaker section of

the society. It lays down as follows:Article 21 assures the right to live with

human dignity, free from exploitation. The state is under a constitutional

obligation to see that there is no violation of the fundamental right of any

person, particularly when he belongs to the weaker section of the community

and is unable to wage a legal battle against a strong and powerful opponent who

is exploiting him. Both the Central Government and the State Government are

therefore bound to ensure observance of the various social welfare and labour

laws enacted by Parliament for the purpose of securing to the workmen a life of

basic human dignity in compliance with the directive principles of the state

policy.

The meaning of the word life includes the right to live in fair and reasonable

conditions, right to rehabilitation after release, right to live hood by legal means

and decent environment. The expanded scope of Article 21 has been explained

by the Apex Court in the case of Unni Krishnan v. State of A.P. and the Apex

Court itself provided the list of some of the rights covered under Article 21 on

the basis of earlier pronouncements and some of them are listed below:

(1) The right to go abroad.

(2) The right to privacy.

(3) The right against solitary confinement.

(4) The right against hand cuffing.

(5) The right against delayed execution.

(6) The right to shelter.

(7) The right against custodial death.

(8) The right against public hanging.

(9) Doctors assistance.

It was observed in UnniKrishnans case that Article 21 is the heart of

Fundamental Rights and it has extended the Scope of Article 21 by observing

that the life includes the education as well as, as the right to education flows

from the right to life.

As a result of expansion of the scope of Article 21, the Public Interest

Litigations in respect of children in jail being entitled to special protection,

health hazards due to pollution and harmful drugs, housing for beggars,

immediate medical aid to injured persons, starvation deaths, the right to know,

the right to open trial, inhuman conditions in aftercare home have found place

under it. Through various judgments the Apex Court also included many of the

non-justifiable Directive Principles embodied under part IV of the Constitution

and some of the examples are as under:(a) Right to pollution free water and air.

(b) Protection of under-trial.

(c) Right of every child to a full development.

(d) Protection of cultural heritage.

Maintenance and improvement of public health, improvement of means of

communication, providing human conditions in prisons, maintaining hygienic

condition in slaughter houses have also been included in the expanded scope of

Article 21. this scope further has been extended even to innocent hostages

detained by militants in shrine who are beyond the control of the state.

The Apex Court in the case of S.S. Ahuwalia v. Union of India and others it

was held that in the expanded meaning attributed to Article 21 of the

Constitution, it is the duty of the State to create a climate where members of the

society belonging to different faiths, caste and creed live together and,

therefore, the State has a duty to protect their life, liberty, dignity and worth of

an individual which should not be jeopardized or endangered. If in any

circumstance the state is not able to do so, then it cannot escape the liability to

pay compensation to the family of the person killed during riots as his or her

life has been extinguished in clear violation of Article 21 of the Constitution.

While dealing with the provision of Article 21 in respect of personal liberty,

Hon’ble Supreme Court put some restrictions in a case of Javed and others v.

State of Hariyana, AIR 2003 SC 3057 as follows: at the very outset we are

constrained to observe that the law laid down by this court in the decisions

relied on either being misread or read divorced of the context. The test of

reasonableness is not a wholly subjective test and its contours are fairly

indicated by the Constitution. The requirement of reasonableness runs like a

golden thread through the entire fabric of fundamental rights. The lofty ideals of

social and economic justice, the advancement of the nation as a whole and the

philosophy of distributive justice- economic, social and political- cannot be

given a go-by in the name of undue stress on fundamental rights and individual

liberty. Reasonableness and rationality, legally as well as philosophically,

provide colour to the meaning of fundamental rights and these principles are

deducible from those very decisions which have been relied on by the learned

counsel for the petitioners.

The Apex Court led a great importance on reasonableness and rationality of the

provision and it is pointed out that in the name of undue stress on Fundamental

Rights and Individual Liberty, the ideals of social and economic justice cannot

be given a go-by. Thus it is clear that the provision Article 21 was constructed

narrowly at the initial stage but the law in respect of life and personal liberty of

a person was developed gradually and a liberal interpretation was given to these

words. New dimensions have been added to the scope of Article21 from time to

time. It imposed a limitation upon a procedure which prescribed for depriving a

person of life and personal liberty by saying that the procedure which

prescribed for depriving a person of life and personal liberty by saying that the

procedure must be reasonable, fair and such law should not be arbitrary,

whimsical and fanciful. The interpretation which has been given to the words

life and personal liberty in various decisions of the Apex Court, it can be said

that the protection of life and personal liberty has got multi-dimensional

meaning and any arbitrary, whimsical and fanciful act of the State which

deprived the life or personal liberty of a person would be against the provision

of Article 21 of the Constitution.

7. Right to health u/Art. 21

the Supreme Court has brought the right to health under the preview of Article

21. The scope of this provision is very wide. It prescribes for the right of life

and personal liberty. The concept of personal liberty comprehended many

rights, related to indirectly to life or liberty of a person. And now a person can

claim his right of health. Thus, the right to health, along with numerous other

civil, political and economic rights, is afforded protection under the Indian

Constitution.

The debate surrounding the implementation of the human right to health is fresh

and full of possibility for the developing world. In fact, Indian has been able to

create a legal mechanism whereby right to health can be protect and enforced.

The early of 1970s, witnessed a watershed in human rights litigation with the

keshwanandbhartiVs State of kerala, ushering in a unprecedented period of

progressive jurisprudence following the recognition fundamental rights. At the

same time standing rules were relaxed in order to promote PIL and access to

justice. So there were two developments in 1980s, which led to a marked

increase in health related litigation. First was the establishment of consumer

courts that made it cheaper and speedier to sue doctors for medical negligence.

Second, the growth of PIL and one of this offshoots being recognition of health

care as a fundamental right. Through PIL the Supreme Court has allowed

individual citizen to approach the court directly for the protection of their

Constitutional human rights.

The Constitution guarantees the some fundamental rights having a bearing on

health care. Article 21deal with “No person shall be deprived of his life or

personal liberty except according to procedure established by law.” Right to

live means something more, than more animal existence and includes the right

to live consistently with human dignity and decency.

In 1995, the Supreme Court held that right to health and medical care is a

fundamental right covered by Article 21 since health is essential for making the

life of workmen meaningful and purposeful and compatible with personal

dignity. The state has an obligation under Article 21 to safeguard the right to

life of every person, preservation of human life being of paramount importance.

The Supreme Court has in the case of ParmanandKatravs Union of India, held

that whether the patient be an innocent person or be a criminal liable to

punishment under the law, it is the obligation of those who are in charge of the

health of the community to preserve life so that innocent may be protected and

the guilty may be punished.

Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human

beings. It is well known that traffic in women leads to prostitution, which in

turn is to major factor in spread of AIDS. Article 24 is relating to child labour it

deal with “No child below the age of 14 years shall be employed to work in any

factory or mine or engaged in any other hazardous employment.” Thus this

article is of direct relevance to child health.

In addition to constitutional remedies sensitizing of the relevant ordering law

towards later health for all adds to the content of right to health. Legal

prohibition of commercialized transplantation of human organ and effective

application of consumer protection act to deal with deficient medical services

have animated right to health.

Judicial Response: – with the recognition that both the Indian Constitution and

the fundamental right of life emphasize human dignity, began to address the

importance of health to Indian citizen. In the DPSP, Art.47 declares that the

State shall regard the level of nutrition and the standard of living of its people

and the improvement of public health as among its primary duties. Since DPSP

are not enforceable by the court, implementation of the guarantee has remained

illusory.[19] However, in a series of cases dealing with the substantive content

of the right to life, the court has found that the right live with human dignity

including right to good health. In Consumer Education and Research Center v.

UOI, the Court explicitly held that the right to health was an integral factor of a

meaningful right to life. The court held that the right to health and medical care

is a fundamental right under Article 21. The Supreme Court, while examining

the issue of the constitutional right to health care under arts 21, 41 and 47 of the

Constitution of India in State of Punjab v Ram LubhayaBagga, observed that

the right of one person correlates to a duty upon another, individual, employer,

government or authority. Hence, the right of a citizen to live under art 21 casts

and obligation on the state. This obligation is further reinforced under art 47; it

is for the state to secure health to its citizens as its primary duty. No doubt the

government is rendering this obligation by opening government hospitals and

health centers, but to be meaningful, they must be within the reach of its people,

and of sufficient liquid quality. Since it is one of the most sacrosanct and

valuable rights of a citizen, and an equally sacrosanct and sacred obligation of

the state, every citizen of this welfare state looks towards the state to perform

this obligation with top priority, including by way of allocation of sufficient

funds. This in turn will not only secure the rights of its citizens to their

satisfaction, but will benefit the state in achieving its social, political and

economic goals.

Right to Health Care as a Fundamental Right: – The Supreme Court, in

PaschimBangaKhetmazdoorSamity&ors v. State of West Bengal &ors, while

widening the scope of art 21 and the government’s responsibility to provide

medical aid to every person in the country, held that in a welfare state, the

primary duty of the government is to secure the welfare of the people.

Providing adequate medical facilities for the people is an obligation undertaken

by the government in a welfare state. The government discharges this obligation

by providing medical care to the persons seeking to avail of those facilities.

Article 21 imposes an obligation on the state to safeguard the right to life of

every person. Preservation of human life is thus of paramount importance. The

government hospitals run by the state are duty bound to extend medical

assistance for preserving human life. Failure on the part of a government

hospital to provide timely medical treatment to a person in need of such

treatment, results in violation of his right to life guaranteed under Article21.

The Court made certain additional direction in respect of serious medical cases:

a.      Adequate facilities be provided at the public health centers where the

patient can be given basic treatment and his condition stabilized.

b.      Hospitals at the district and sub divisional level should be upgraded so

that serious cases be treated there.

c.      Facilities for given specialist treatment should be increased and having

regard to the growing needs, it must be made available at the district and sub

divisional level hospitals.

d.      In order to ensure availability of bed in any emergency at State level

hospitals, there should be a centralized communication system so that the

patient can be sent immediately to the hospital where bed is available in respect

of the treatment, which is required.

e.      Proper arrangement of ambulance should be made for transport of a

patient from the public health center to the State hospital.

f.       Ambulance should be adequately provided with necessary equipments

and medical personnel.

Workers right to health care facilities: – The Supreme Court has recognized the

rights of the workers and their right to basic health facilities under the

Constitution, as well as under the international conventions to which India is a

party. In its path breaking judgment in BandhuaMuktiMorcha v Union of

India, the court delineated the scope of art 21 of the Constitution, and held that

it is the fundamental right of every one in this country, assured under the

interpretation given to art 21 by this court in Francis Mullin’s Case to live with

human dignity, free from exploitation. This right to live with human dignity

enshrined in art 21 derives its life breath from the directive principles of state

policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must

include protection of the health and strength of workers, men and women; and

children of tender age against abuse; opportunities and facilities for children to

develop in a healthy manner and in conditions of freedom and dignity;

educational facilities; just and humane conditions of work and maternity relief.

These are the minimum requirements, which must exist in order to enable a

person to live with human dignity. No state, neither the central government nor

any state government, has the right to take any action which will deprive a

person of the enjoyment of these basic essentials.InCESE Ltd v Subhash

Chandra Bose, the court held that, the health and strength of a worker is an

integral facet of the right to life. The aim of fundamental rights is to create an

egalitarian society to free all citizens from coercion or restrictions by society

and to make liberty available for all. The court, while reiterating its stand for

providing health facilities in Vincent v Union of India, held that a healthy body

is the very foundation for all human activities. In a welfare state, therefore, it is

the obligation of the state to ensure the creation and the sustaining of conditions

congenial to good health.

Right to Health is a Fundamental Right: In CESC Ltd. vs. Subash Chandra

Bose, the Supreme Court relied on international instruments and concluded that

right to health is a fundamental right. It went further and observed that health is

not merely absence of sickness: “The term health implies more than an absence

of sickness. Medical care and health facilities not only protect against sickness

but also ensure stable manpower for economic development. Facilities of health

and medical care generate devotion and dedication to give the workers’ best,

physically as well as mentally, in productivity. It enables the worker to enjoy

the fruit of his labour, to keep him physically fit and mentally alert for leading a

successful economic, social and cultural life. The medical facilities are,

therefore, part of social security and like gilt edged security, it would yield

immediate return in the increased production or at any rate reduce absenteeism

on grounds of sickness, etc.

Environment Pollution is linked to Health and is violation of right to life with

dignity: In T. Ramakrishna Rao vs. Hyderabad Development Authority, the

Andhra Pradesh High Court observed: Protection of the environment is not only

the duty of the citizens but also the obligation of the State and it’s all other

organs including the Courts. The enjoyment of life and its attainment and

fulfilment guaranteed by Article 21 of the Constitution embraces the protection

and preservation of nature’s gift without which life cannot be enjoyed fruitfully.

The slow poisoning of the atmosphere caused by the environmental pollution

and spoliation should be regarded as amounting to violation of Article 21 of the

Constitution of India.

 It is therefore, as held by this Court speaking through P.A, Choudary, J., in T.

DamodarRao and others vs. Special Officer, Municipal Corporation of

Hyderabad, the legitimate duty of the Courts as the enforcing organs of the

constitutional objectives to forbid all actions of the State and the citizens from

upsetting the ecological and environmental balance. In Virender Gaur vs. State

of Haryana, the Supreme Court held that environmental, ecological, air and

water pollution, etc., should be regarded as amounting to violation of right to

health guaranteed by Article 21 of the Constitution. It is right to state that

hygienic environment is an integral facet of the right to healthy life and it would

not be possible to live with human dignity without a humane and healthy

environment. In Consumer Education and Research Centre vs. Union of

India, Kirloskar Brothers Ltd. vs. Employees’ State Insurance Corporation,

the Supreme Court held that right to health and medical care is a fundamental

fight under Article 21 read with Article 39(e), 41 and 43. In Subhash Kumar

vs. State of Bihar, the Supreme Court held that right to pollution-free water and

air is an enforceable fundamental right guaranteed under Article 21. Similarly

in Shantistar Builders v. Narayan KhimalalTotame, the Supreme Court opined

that the right to decent environment is covered by the right guaranteed under

Article 21. Further, in M.C. Mehta vs. Union of India, Rural Litigation and

Entitlement Kendra v. State of U.P., Subhash Kumar vs. State of Bihar , the

Supreme Court imposed a positive obligation upon the State to take steps for

ensuring to the individual a better enjoyment of life and dignity and for

elimination of water and air pollution. It is also relevant to notice as per the

judgment of the Supreme Court in Vincent Panikurlangara vs. Union of India,

Unnikrishnan, JP vs. State of A.P. The maintenance and improvement of

public health is the duty of the State to fulfill its constitutional obligations cast

on it under Article 21 of the Constitution.

8. Right to Privacy

The right to privacy presents itself as an illustration of the interpretative

capabilities of the higher judiciary, as well as a right emanating as a

consequence of the larger process of widening the ambit of specifically

enumerated fundamental rights. which shall be critically examined in the

context of the Supreme Court’s ruling in the case of KharakSingh v. State of

Punjab. The literal meaning of privacy, as defined in the New Oxford English

Dictionary3 is the ‘absence or avoidance of publicity or display; the state or

condition from being withdrawn from the society of others, or from public

interest; seclusion.’ The Black’s Law Dictionary refers to privacy as “the right

to be let alone; the right of a person to be free from unwarranted publicity; and

the right to live without unwarranted interference by the public in matters with

which the public is not necessarily concerned”. Therefore, the right to privacy,

notwithstanding its differing connotations, remains a private right of an

individual.Privacy as a concept involves what privacy entails and how it is to be

valued. Privacy as aright involves the extent to which privacy is (and should be

legally protected). “ The lawdoes not determine what privacy is, but only what

situations of privacy will be affordedlegal protection”. It is interesting to note

that the common law does not know a generalright of privacy and the Indian

Parliament has so far been reluctant to enact one.

Judicial Activism: The Right to Privacy:-The role of the Judiciary. Judicial

activism has brought the Right to Privacy within the realm of Fundamental

Rights. Article 141 of the Constitution states that “the law declared by the

Supreme Court shall be binding on all courts within the territory of India.”

Therefore, the decisions of The Supreme Court of India become the Law of the

Land.The Supreme Court of India has come to the rescue of common citizen,

time and again byconstruing “right to privacy” as a part of the Fundamental

Right to “protection of life andpersonal liberty” under Article 21 of the

Constitution, which states “no person shall be deprived of his life or personal

liberty except according to procedures established by law”. In the context of

personal liberty, the Supreme Court has observed “those who feel called upon

to deprive other persons of their personal liberty in the discharge of what they

conceive to be their duty must strictly and scrupulously observe the forms and

rules of the law”.Even the fundamental right “to freedom of speech and

expression” as enumerated inArticle 19(1)(a) of the Constitution of India comes

with reasonable restrictions imposedby the State relating to (i) defamation; (ii)

contempt of court; (iii) decency or morality;(iv) security of the State; (v)

friendly relations with foreign states; (vi) incitement to anoffence; (vii) public

order; (viii) maintenance of the sovereignty and integrity of India.Thus, the

right to privacy is limited against defamation, decency or morality.The Supreme

Court has reiterated the Right to Privacy in the following cases:

1. Kharak Singh v. State of UP.In this case the appellant was being harassed by

police under Regulation 236(b) of UP Police Regulation, which permits

domiciliary visits at night. The Supreme Court held that the Regulation 236 is

unconstitutional and violative of Article 21. It concluded that the Article 21 of

the Constitution includes “right to privacy” as a part of the right to “protection

of life and personal liberty”. The Court equated ‘personal liberty’ with

‘privacy’, and observed, that “the concept of liberty in Article 21 was

comprehensive enough to include privacy and that a person’s house, where he

lives with his family is his ‘castle’ and that nothing is more deleterious to a

man’s physical happiness and health than a calculated interference with his

privacy”.

2. Gobind v. State of M.P. is another case on domiciliary visits. The Supreme

Court laiddown that “ …………privacy-dignity claims deserve to be examined

with care and to bedenied only when an important countervailing interest is

shown to be superior. If theCourt does find that a claimed right is entitled to

protection as a fundamental privacyright, a law infringing it must satisfy the

compelling State interest test………”

3. State v. Charulata Joshi the Supreme Court held that “the constitutional

right to freedom of speech and expression conferred by Article 19(1)(a) of the

Constitution whichincludes the freedom of the press is not an absolute right.

The press must first obtain the willingness of the person sought to be

interviewed and no court can pass any order if theperson to be interviewed

expresses his unwillingness”.

4. R. Rajagopal v. State of Tamil Nadu, the Supreme Court held that the

petitioners have a right to publish what they allege to be the life-

story/autobiography of Auto Shankar insofar as it appears from the public

records, even without his consent or Authorization. But if they go beyond that

and publish his life story, they may be invading his right to privacy, then they

will be liable for the consequences in accordance with law. Similarly, the State

or its officials cannot prevent or restraint the said publication. It Stated that “A

citizen has a right to safeguard the privacy of his own, his family, marriage,

procreation, motherhood, child bearing and education among other matters.

None can publish anything concerning the above matters without his consent-

whether truthful or otherwise and whether laudatory or critical. If he does so, he

would be violating the right to privacy of the person concerned and would be

liable in an action for damages…….”

5. People’s Union for Civil Liberties (PUCL) v. Union of India, the Supreme

Court heldthat the telephone tapping by Government under S. 5(2) of Telegraph

Act, 1885 amountsinfraction of Article 21 of the Constitution of India. Right to

privacy is a part of the rightto “life” and “personal liberty” enshrined under

Article 21 of the Constitution. The saidright cannot be curtailed “except

according to procedure established by law”.

6. In Mr. ‘X’ v. Hospital ‘Z’ for the first time the Supreme Court articulated on

sensitivedata related to health. In this case, the appellant’s blood test was

conducted at the respondent’s hospital and he was found to be HIV (+). His

marriage, which was alreadysettled, was called off after this revelation. Several

persons including the members of hisfamily and those belonging to their

community came to know of his HIV (+) status and was ostracized by the

community. He approached the National Commission against the respondent

hospital claiming damages from them for disclosing information about his

health, which, by norms of ethics, according to him, ought to have been kept

confidential. The National Commission summarily dismissed his complaint.

Consequently he moved the Supreme Court by way of an appeal. The appellant

argued that the principle of ‘duty of care’ as applicable to persons in medical

profession also included the duty to maintain confidentiality and that since this

duty was violated by the respondents, they were liable to pay damages. “Right

of privacy may, apart from contract, also arise out of a particular specific

relationship, which may be commercial, matrimonial, or even political. Doctor-

patient relationship, though basically commercial, is professionally, a matter of

confidence and, therefore, doctors are morally and ethically bound to maintain

confidentiality.” It however, held that although it was the basic principle of

jurisprudence that ‘every Right has a correlative Duty and every Duty has a

correlative Right’, the rule was not absolute and was ‘subject to certain

exceptions’ in the sense that ‘a person may have a Right, but there may not be

correlative Duty, and the instant case fell within exceptions. The court observed

that even the Code of Medical Ethics carved out an exception to the rule of

confidentiality and permitted the disclosure in certain circumstances ‘under

which public interest would override the duty of confidentiality’ particularly

where there is ‘an immediate or future health risk to others’. According to the

court, the ‘right to confidentiality, if any, vested in the appellant was not

enforceable in the present situation, as the proposed marriage carried with it the

health risk from being infected with the communicable disease from which the

appellant suffered. As regards the argument of the appellant that his right to

privacy had been infringed by the respondents by disclosing that he was HIV

(+) and, therefore, they were liable in damages, the Supreme Court observed

that as one of the basic human rights, the right of privacy was not treated as

absolute and was ‘subject to such action as may be lawfully taken for the

prevention of crime or disorder or protection of health or morals or protection

of rights and freedom of others.”

7. District Registrar and Collector v. Canara Bank, it was held, that “exclusion

of illegitimate intrusions into privacy depends on the nature of the right being

asserted andthe way in which it is brought into play; it is at this point that the

context becomes crucial, to inform substantive judgment. If these factors are

relevant for defining the rightto privacy, they are quite relevant whenever there

is invasion of that right by way of searches and seizures at the instance of the

State.”If one follows the judgments given by the Hon’ble Supreme Court, three

themes emerge18:

(1) that the individual’s right to privacy exists and any unlawful invasion of

privacy would make the ‘offender’ liable for the consequences in accordance

with law;

(2) that there is constitutional recognition given to the right of privacy which

protects personal privacy against unlawful governmental invasion;

(3) that the person’s “right to be let alone” is not an absolute right and may be

lawfully restricted for the prevention of crime, disorder or protection of health

or morals or protection of rights and freedom of others;

Tracing the Right to Privacy in India:-In the celebrated case of ADM Jabalpur

v. ShivakantShukla, the Supreme Court sought to determine if the right to

personal liberty is limited by any limitations other than those expressly

contained in the Constitution and statute law. As observed by Khanna J:

“Article 21 is not the sole repository of the right to personal liberty…..no one

shall be deprived of his life and personal liberty without the authority of laws

follows not merely from common law, it flows equally from statutory law like

the penal law in force in India.” This establishes that the right to privacy need

not be expressly guaranteed, but may be implicit because of its inclusion in

common law. The Supreme Court in recent years through judicial activism has

preferred to “read into” the Constitution a fundamental right to privacy by a

creative interpretation of the right to life guaranteed under Article 21.

Privacy and Data Protection:-Privacy is closely connected to Data Protection.

An individual’s data like his name address, telephone numbers, profession,

family, choices, etc. are often available at various places like schools, colleges,

banks, directories, surveys and on various web sites. Passing on such

information to interested parties can lead to intrusion in privacy like incessant

marketing calls.It would be a misnomer to say that India does not have ‘data

protection’ legislation at all.This is factually wrong. The fact is that there exists

data protection legislation in India. The subject matter of data protection and

privacy has been dealt within the InformationTechnology Act, 2000 but not in

an exclusive manner. Data protection is not a subject in any of the three lists in

Schedule VII of the Constitution of India. But Entry 97 of List 1 states: “any

other matter not enumerated in List II and List III …….” Thus only the Indian

Parliament is competent to legislate on data protection since it can be

interpreted as any other matter not enumerated in List II and List III. Data

protection is, thus, a Central subject and only the Central Government is

competent to frame legislations on issues dealing with data protection. In fact,

the Information Technology Act, 2000, enacted by the Indian Parliament is the

first legislation, which contains provisions on data protection. Tracing the

Origins of the Right to Privacy in India.The struggle to specifically incorporate

privacy as a specific fundamental right under the Constitution is substantially

attributable, in large measure, to the rather amorphous character of this right. In

the case of M.P. Sharma v. Satish Chandra wherein the contours of the

police’s powers of search and surveillance were outlined, it was held that there

is no right to privacy under the Constitution. In reaching this conclusion, the

Supreme Court preferred to base its interpretation in a rather narrow sense,

limiting itself to simply the prescribed statutory regulations. This represented

the prevailing judicial approach of simply limiting interpretation, along

positivist lines. Therefore, the Court concluded that it lacked the justification to

import [privacy] into a totally different fundamental right, by some process of

strained construction. Thus the courts adopted a narrow and formalistic

approach by pointing to the absence of a specific constitutional provision

analogous to the Fourth Amendment of the US constitution, to protect the right

of privacy of Indians from unlawful searches. This ruling has been followed

nearly a decade later, in the case of Kharak Singh v. State of Punjab, wherein

the right to privacy was again invoked to challenge police surveillance of an

accused person. The contention raised is that the right to privacy may be

identified in the “personal liberty” as contained in Article 21. Citing with

approval the observations of Field, J in Munn v Illinois, it referred to the fifth

and fourteenth amendment of the American Constitution and other American

and English judgments of Wolf v. Colorado24 and Semayne’s Case. In

widening the scope of liberty under Article 21, the Court held that “personal

liberty” is contained in Article 21 as a “compendious term to include within

itself all varieties of rights which go to make up the personal liberty of man

other than those dealt with in several clauses of Article 19(1).” However,

notwithstanding this, it concluded that this right to privacy is not in existence

under the Constitution, with Ayyangar, J laying down that: “The right of

privacy is not guaranteed under our Constitution and therefore the attempt to

ascertain the movements of an individual which is merely a manner in which

privacy is invaded is not an infringement of fundamental right guaranteed by

Part III”. As in the M.P. Sharma case, the Supreme Court appears to be

influenced by the absence of any provision similar to that of a prohibition on

unreasonable search and seizure as is available under the Fourth Amendment of

the US Constitution. Thus the majority erred in regarding “prohibition on

unreasonable search and seizure” as the only facet of privacy. It remains

surprising as to how the Court arrived at the conclusion that secret surveillance

is not unconstitutional and violative of personal liberty. It is also not clear how

the Court came to the conclusion that secret surveillance was not

unconstitutional and did not violate personal liberty, but at the same time

quoted in a positive light Semayne’s case and opined that “the house to

everyone is to him as his castle and fortress”. Taking a more holistic view of the

scheme of protection afforded by Part III, the minority found that all acts of

surveillance under the impugned Regulations offended Articles 21 and 19(1)

(d), as movement under the shroud of police surveillance cannot be described as

free movement within the meaning of the constitution. Thus the minority

judgment found the clauses authorizing “surveillance” as unconstitutional as

they believed that even thought there did not exist an express right to “privacy”

in the Constitution, such a right was built into the very fabric of Article 21 and

secondly, they were of the opinion that “the right to move freely” implied the

right to move free from psychological impediments, which obviously cannot be

the case if one knows he is under surveillance. However, even the minority

ruling rejects recognition of the right to privacy, although it concluded that the

acts of surveillance are unconstitutional. At this point, it is pertinent to

remember that the rationale on which the majority ruling is based in the Kharak

Singh case is that the rights contained in Article 19 are not contained in Article

21, which has been rejected following the Supreme Court’s ruling in the

celebrated Maneka Gandhi case, wherein a Bench of the Supreme Court held,

while referring to its earlier ruling in the Kharak Singh case:

“In our view this is not the correct approach. Both are independent fundamental

rights, though they are overlapping. The fundamental right to life and personal

liberty has many attributes and some of them are found in Article 19.”31

The majority opinion in the Kharak Singh case relied upon the theory of

“carving out” in Article 21 the residue of the elements of personal liberty

excluded in the ambit of Article 19(1). In rejecting this, subsequent rulings of

the Supreme Court proceeded to detail upon the different manifestation of

personal liberties as contained in both constitutional provisions, because of

which Article 21 could not be treated as a residual provision. This judicial

approach resonates the Supreme Court’s categorical rejection of the right to

strike in the All India Bank Employees Association case, wherein it held that

even upon a liberal interpretation of Article 19(1), it cannot be concluded that

trade unions are guaranteed the right to strike. In a similar manner, there is no

implied right to privacy, thereby reinforcing the plea that the right to privacy

ought to be clearly articulated. The Supreme Court, a decade later, examined

the existence and scope of the fundamental right to privacy. In Govind v State

of MP the Supreme Court, again adjudicating upon the question of the

constitutionality of police surveillance, side-stepped the rationale underlying the

earlier rulings in M.P. Sharma and Kharak Singh. Tracing the origin of the

right in the presumed intention of the framers of the Constitution, the court,

speaking through Matthew J. said:

“There can be no doubt that the makers of our Constitution wanted to ensure

conditions favourable to the pursuit of happiness. They certainly realized, as

Brandeis, J. said in his dissent in Olmstead v. US, the significance of man’s

Spiritual nature, of his feelings and his intellect (...). They sought to protect

[Individual] in their beliefs, thoughts, their emotions and their sensations.

Therefore they must be deemed to have conferred upon the individual as against

the government a sphere where he should be let alone”. The Supreme Court,

while accepting the unifying principle underlying the concept of privacy, noted

that the fundamental nature of the right is implicit in the concept of ordered

liberty. Substantiated by recent rulings of the US Supreme Court, the judicial

approach remained that there exists a penumbra or zone of privacy in terms of

the different guarantees afforded by Part III of the Constitution of India, thereby

anchoring the right of privacy in India’s constitutional jurisprudence. However,

remaining cautious, the Supreme Court also observed that in the absence of any

legislative enactment, this right will pass through a “case-by-case

development”.

The Supreme Court’s ruling in the Govind case was rendered by a Bench

consisting of three judges, although rather contradictory to that as held by a

Bench of six judges in the Kharak Singh case, hereinbefore referred to.

Interestingly, the ruling in the Govind case fails to refer to earlier decisions on

privacy, because of which it is possible to contend if the law as laid down in

this case is valid, as it appears to be contrary to the ruling in the Kharak Singh

case.

On the basis of a dispassionate perusal of the aforementioned judicial rulings, it

is evident that there is an implied, unenumerated, but judicially- evolved and

recognized right to privacy under the Indian Constitution. Although the rulings

of the Supreme Court in the cases of M.P. Sharma and Kharak Singh, already

referred to, denied the existence of any right to privacy, smaller benches in the

cases of Govind, Rajagopaland PUCL unmistakably indicate the existence of

such a right. The shift in judicial interpretation is most notably observed

following the Maneka Gandhi case, wherein this right is recognized, subject to

legal restrictions satisfying the requirements as laid down in the Maneka

Gandhi case. However, if the courts were to address the issue of right to

privacy under Article 21 afresh, there is little doubt that it would conclude that

there does exist a right to privacy. Such a statement will not be valid law unless

stated by a bench of more than six judges so as to effectively overrule Kharak

Singh. On a harmonious interpretation of the legal principles as laid down by

the Supreme Court at different points of time, it is sufficient to conclude the

existence of right to privacy under Part III of the Constitution. The first

principle was stated in Kharak Singh, which said that ‘personal liberty’ used in

the Article 21 is ‘a compendious term to include within itself all varieties of

rights which go to make up the personal liberty of man other than those

dealtwith in several clauses of Article 19(1).’ The second and third principles

were laid down in ManekaGandhi, which stated that any law interfering with

‘personal liberty’ must be just, fair and reasonable and that an unnamed right

may be regarded as part of a named fundamental right if it partakes of the same

basic nature and character of the named right Privacy is also a feature of the

dignity of an individual that the preamble to the Constitution assures every

individual. Thus the right is not merely a negative mandate upon the state not to

encroach upon the private space of the individual but is also a positive

affirmation on the state to create adequate institutions that would enable one to

effectively protect his private life. Thus the right to privacy has a strong

constitutional edifice, which could, if clarified by an appropriate Bench of the

Supreme Court, settle this judicial controversy at rest.