CONSTITUTIONAL LAWS-1:

What is the nature of Indian constitution?

Article 1(1) determines the true nature of Indian Constitution. It states that India is a union of
states and not a federation. The reason behind choosing the word “union” over that of
“federation” was that, it showed the formation of India not being the outcome of an agreement
among existing states, according to the Constitution’s drafters. This also meant that no state or
group of states were allowed to secede from the boundaries of the country at their own free
will.
The structure of any constitution is such that all laws, rules, and regulations are derived from
it. It is the supreme law of the land, and no authority can override its validity. An important
aspect that any constitution lays down is the nature of its structure. We have derived many
concepts from various countries such as France, USA, Britain, New Zealand etc.

Federal nature of Constitution of India

According to Prof.K.C Wheare, federal principle is a method of dividing power so that the
general and regional Government are each within a sphere, coordinated, and independent.”
This form of government is such that there is a distribution of power between the centre and
State, thereby placing them on an equal footing. Five characteristics define a federal system-
1. Distribution of powers-
A federal Constitution requires that there be a distribution of power between the Central
Government and States that form the federation.
2. The power of the Constitution –
The Constitution holds supreme and is a binding authority on both Governments, neither of
them can be in a position to override the provisions of the Constitution. This is only in relation
to division of powers between State and Center. Any other provisions that do not relate to either
need not be supreme.
3. Written Constitution – Another essential requirement of a federal Government is that there
must be a written form of Constitution; this is so that the supremacy of the Constitution can
be maintained as its provisions have been written down.

4. Rigidity –
The power to amend the Constitution which regulate the status and powers of the Central and
State Governments should not confined to them, this is what meant by rigidity of Constitution
and not the fact that it should be legally unchallengeable.

5. Authority of Courts –
Court of laws must be established to prevent the Center and State Governments from impinging
each other’s powers and thereby making laws that are beyond their scope. Courts should not
be empowered upon to decide the validity or invalidity of enactment by either Governments. It
is important that a supreme court be established to decide matters regarding Constitutional
interpretations.

The Indian Constitution possesses all the essential characteristics of a federal Constitution
mentioned above. The Constitution establishes a dual polity, a system of double Government
with the Central Government at one level and the State Government at the other. There is a
division of powers between the Central and the State Governments. Each level of Government
is supreme in its own sphere. The Constitution of India is written and is supreme. The
provisions of the Constitution which are concerned with federal principles cannot be altered
without the consent of the majority of the States. The Constitution establishes a Supreme Court
to decide disputes between the Union and the States, or the States inter se interpret finally the
provisions of the Constitution.

Let us now examine what are those provisions of the Constitution which are produced in
support of the above argument and how they modify the strict application of the federal
principle. In the following matters, it is pointed out, the Indian Constitution contains the
modifications of the federal principle:—

(1) Appointment of Governor —The Governors of the States are appointed by the President
(Articles 155 and 156) and answerable to him. This is, however, not a matter of much
significance, for, the Governor is only the constitutional head of the State who shall normally
act on the advice of his Ministers. There are provisions in the Constitution under which the
Governor is required to send certain State laws for the assent of the President. The President
has power to veto those State laws e.g., Arts. 200, 288(2). But whatever be the letter of the
Constitution, in practice there are not many examples where the President has vetoed the State
Laws. The only example has been the Kerala Education Bill. 11 But here also the Centre
obtained the advisory opinion of the Supreme Court before sending it back to the State
Legislature for suitable amendments in the light of the Court's opinion,

(2) Parliament's power to legislate in the national interest —Under Art. 249 Parliament is
empowered to make Jaws with respect to every matter enumerated in the Slate List if the Rajya
Sabha passes a resolution by 2/3 majority that it is necessary in the national interest. There
cannot be any objection to this provision : First, no one will deny that if a subject in the State
List assumes national character. Parliament should make a law on it. In normal course this
cannot be done unless the Constitution is amended. But in this provision we have devised an
expedient way by which without formally amending the Constitution we can achieve the
desired effect, namely, the acquisition by the Centre of the power to administer and legislate
upon a subject which has assumed national importance. Secondly, it should also be noted that
this power is given to Parliament by the Council of States itself by passing a resolution
supported by 2/3 majority of the members present. Thus, in effect by this device the
Constitution is amended by the agreement of majority of the States. We, therefore, fail to
understand how Article 249 places the State in subordinate position.

(3) Parliaments' power to form new States and alter boundaries of existing States — The
Parliament of India may form new States; it may increase or diminish the area of any State and
it may alter the boundaries or name of any State (Art. 3). The very existence of the State thus
depends upon the sweetwill of the Union Government. The powe r conferred on Parliament to
make territorial adjustment is better explained on the historical basis. The Government of India,
for the first time, establish federal polity in India. It deliberately created the constituent units
of the federation although they had no organic roots in the past. The framers of the Constitution
were well aware of the peculiar conditions under which and the reasons for which the States
were formed and their boundaries were defined and so they deliberately accepted the provisions
in Article 3 with a view to meeting the possibility of the redistribution of the State territory
after the integration of Indian States. The provisions in Art. 3 take into account the fact that the
Constitution contemplated readjustment of the territories of constituent States which might
arise in future.

(4) Emergency provisions —The Constitution envisages three types of emergencies: (I)
emergency caused by war or external aggression or armed rebellion (Art, 352); (2) emergency
caused by failure of constitutional machinery in States (Art. 356); and (3) financial emergency
(Art. 360). When the proclamation of emergency is made under Art. 352, the normal
distribution of powers between the Centre and the States undergo a vital change. Parliament is
empowered to make laws with respect to any matter enumerated in the State List. The Centre
is empowered to give directions to any State as to manner in which the State's executive power
is to be exercised (Art. 256). Further, the President may by order direct that all or any of the
provisions of Arts. 268 to 279 relating to distribution of revenue between the Centre and the
State shall take effect with such exception or modifications, as he thinks fit. Under Art. 356, if
the President is satisfied that Government of a State cannot be carried on in accordance with
the provisions of the Constitution he can dismiss the State ministry and dissolve the Legislature
and assume all the functions of the State. Thus the normal distribution of powers between the
Centre and the States, which is the basic element of a federal constitution,- is completely
suspended. It is alleged that these provisions enable the Union Parliament to convert the Union
into a unitary State which vitally affects the federal character of the Indian Constitution.

Conclusion: "The correct view", observes Dr. V.N. Shukla, "is that emergency provisions
which come into operation only on the happening of the specific contingencies, do not modif
y or destroy the federal system. It is rather a merit of the Constitution that it visualises the
contingencies when the strict application of the federal principle might destroy the basic
assumption on which our Constitution is built. The Constitution by adopting itself to a changed
circumstances strengthens the Government in its endeavour to overcome the crisis. In an
emergency the behaviour of each federal Constitution is very much different from that in peace
time. Though the Constitution of the U.S.A., Australia and Canada do not expressly provide
for enlargement of federal power during the periods of emergency, but during the two World
Wars, the defence power of the Federal Goverment was given so extended an interpretation by
the courts that these countries behaved more likely unitary than federal State. For the above
reasons we maintain that the Indian Constitution is federal in nature."
Prof. Wheare has coined a phrase 'quasi-federation' as applicable to India but he has nowhere
defined what a 'quasi-federation' is. "It is not necessary to use such a vague term 'quasi-federal'
to characterise it". The term 'quasi-federal' is extremely vague as it does not denote how
powerful the Centre is, how much deviation there is from the pure 'federal model' or what kind
of special position a particular quasi-federation occupies between a unitary State and a
federation proper. The fundamental principle of federation is that the powers are distributed
between the Centre and the States and that is done by the Constit ution. That is what the
Constitution does. The States do not depend upon the Centre, for, in normal times the Centre
cannot intrude. It may be that the Centre has been assigned a larger role than the Sates but that
by itself does not detract from the federal nature of the Constitution, for it is not the essence of
federalism to say that only so much, and more power, is to be given to the Centre.

According to Prof.Wheare, the basic characteristics that make up a federal government must
be maintained, and changes can be permitted provided that they are retained in the Constitution
. If there are distinct changes, then it invalidates the term, thereby changing the nature of the
system itself.
While the basic characteristics are present in the Indian Constitution, it also conforms to a dual
polity. Dual polity is when the State and Centre are endowed with certain powers by the
Constitution that they can exercise in certain fields. Their powers and duties are clearly marked.
It must be made sure that they do not go beyond their power of exercising their responsibilities.
They are to validate the Constitution as it hold supreme over any authority. In addition to this,
there cannot be any amendment to the power status of the State and Centre unless there be a
concurrence by the Union and a majority vote by the States. If any issue arises with regard to
Constitutional interpretations, then the Supreme Court must be the relevant authority to decide
upon such matters.

Our Constitution is basically federal, however, the precise nature of our Constitution is Quasi-
federal. Prof. Wheare and D.D Basu also have similar thoughts on the same. They state that the
Constitution establishes a form of Government that is quasi-federal in nature. It is
devolutionary in character, a unitary State that has subsidiary features than that of a federal
state with subsidiary unitary features.
The judiciary has also taken a similar view hence cleared the debates regarding its nature. A
few cases have been mentioned below to help understand how the courts have incorporated
this system into the matters at hand.

Quasi Federal Nature of Constitution of India

In the case of Shamsher Singh Vs Union of India, the court held that the system of quasi-
federalism was accepted and thereby rejecting the substance of Presidential style of executive.
The court reiterated Ambedkar’s statement of the Constitution being both unitary and federal
when the time and circumstances required so.

In the case ofS.R Bommai Vs Union of India, it was opined by Justice Ahmadi that the essence
of a federation is the presence of distribution of power between the Center and State.
Nonetheless, the absence of the terms federal or federation and the presence of unitary features
can make us conclude that our Constitution is more quasi federal than federal or unitary. The
same was also understood in the case of Sat Pal Vs State of Punjab.

In State of W.B Vs Union of India, the court held that decentralizing of power was essentially
to allow smooth governance in a large country and hence contained centralizing features.
Through its judgement, the court pointed out the nature of the Constitution as being quasi
federal. It can clearly be seen that the courts are having similar views with regard to the nature
of Our Constitution.

PREAMBLE

 Soul of the Constitution by Thakur Das Bhargava

 Political horoscope of Indian Constitution by KM Munshi
 Identity card of the Constitution by N.A. Palkhivala
 Key note of constitution of India by Sir Ernest Barker

History of the Preamble to Indian Constitution

The ideals behind the Preamble to India’s Constitution were laid down by
Jawaharlal Nehru’s Objectives Resolution, on 13, December 1946. It adopted
by the Constituent Assembly on January 22, 1947.
Although not enforceable in court, the Preamble states the objectives of the
Constitution, and acts as an aid during the interpretation of Articles when language
is found ambiguous.

Components of Preamble
It is indicated by the Preamble that the source of authority of the Constitution lies
with the people of India.
Preamble declares India to be a sovereign, socialist, secular and democratic
republic.
The objectives stated by the Preamble are to secure justice, liberty, equality to
all citizens and promote fraternity to maintain unity and integrity of the
nation.
The date is mentioned in the preamble when it was adopted i.e. November 26,
1949.
Article 394 of the Constitution states that Articles 5, 6, 7, 8, 9, 60, 324, 367, 379 and
394 came into force since the adoption of the Constitution on 26th November 1949
and the rest of the provisions on 26th January 1950

Key words in the Preamble

We, the people of India: It indicates the ultimate sovereignty of the people
of India. Sovereignty means the independent authority of the State, not being
subject to the control of any other State or external power.

Sovereign: The word sovereign refers to a state which is free to conduct its own
affair both internally and externally. India became a sovereign on the date of
26th January1950 before this India was a Dominion that means it had external
influence of England Now India has its own independent authority and it is not a
dominion of any other external power. In the country, the legislature has the power
to make laws which are subject to certain limitations.
India joining the Commonwealth of Nations is not India losing its sovereignty
rather it is extra constitutional arrangement. India joining United Nations is also
not violation of sovereignty because the decisions of UN are not binding on India.

Socialist: The term means the achievement of socialist ends through democratic
means (democratic socialism). Democratic socialism aims to remove poverty,
ignorance, disease and in equality of opportunity. Indian socialism is a blend of Marxism
and Gandhism, leaning heavily towards Gandhian socialism. India has a unique idea of
socialism, we don’t purely follow communist or Marxist socialism, in which the state
has full control over the resources and distributes them equally. In India we follow the
Ghandhian socialism, here the state doesn’t directly distribute the resources but gives
equal opportunity to all individuals to earn the resources. It holds faith in a mixed
economy where both private and public sectors co-exist side by side. It was added in

the Preamble by 42 nd Amendment, 1976. It means that we will have social and
economic equality.
Social equality means everyone is equal despite what their caste, color, creed, sex,
religion or language.
Economic equality means that government will endeavor to make the
distribution ofwealth more equal and provide a decent standard of living for all.

In excel wear v. Union of India (1979)

The Supreme Court found that with the addition of word socialist, a portal is
opened to lean the judgments in favor of nationalization and state ownership of
the industry. But the principle of socialism and Social Justice cannot ignore the
interest of right of a different section of society that is the private owners.

In Minerva Mills Limited v. Union of India (1980)

The constitutional bench had considered the meaning of the word “socialism” to
crystallize a socialistic state securing to its people social economic Justice by
interplay of fundamental rights and directive principle.
In D.S. Nakara v. Union of India (1983)
The Supreme Court said that basic purpose of socialism is to provide the working
people a decent standard of living and social security to people.
In Air India statutory corporation v. United labor Union (1996)
The Supreme Court observed that the word socialist is added in the constitution
to establish an egalitarian social order through rule of law.

Secular: The term has a western meaning, it means divorce or no relation

between the state and religion (panth nirpeksha) but in India secularism is
used in a sense which means that all the religions in India get equal respect,
protection and support from the state (sarva dharma sambhav).

It was incorporated in the Preamble by 42 nd Constitutional Amendment,

1976. BELIEVE, FAITH, & WORK.
In S.R. Bommai vs. Union of India (1994) It was held that secularism is a
part of the basic structure of the constitution.
In St Xaviers College v. State of Gujarat and Anr (1974)
The court said that secularism is neither anti god nor pro god. Secularism
means elimination of God from the matters of the state and state has nothing
to do with the religion of the people.
In Aruna Roy v. Union of India (2002)
The Supreme Court has said that secularism has a positive meaning and it
means to develop understanding and respect towards different religions.

Democratic: The term implies that the Constitution of India has an

established form of Constitution which gets its authority from the will of the
people expressed in an election. The people of India elect their governments
(through free, fair and periodic elections at all levels Union, State and local)
by a system of universal adult franchise; popularly known as ‘One man one
vote’.

Republic: The term indicates that the head of the state is elected by the people.
InIndia, the President of India is the elected head of the state.
lex rex (sumpremacy of law), elected head, no dynasty, public offices open.
Objectives of the Indian Constitution :The Constitution is the supreme law and it helps
to maintain integrity in thesociety and to promote unity among the citizens to build a
great nation.
The main objective of the Indian Constitution is to promote harmony through out
the nation.
The factors which help in achieving this objective are:
Justice: It is the pinnacle achievement of the State. It is necessary to maintain order
in society that is promised through various provisions of Fundamental Rights and
Directive Principles of State Policy provided by the Constitution of India. It
comprises three elements, which are social, economic, and political
 Social Justice – Social justice means that the Constitution wants to create a
society without discrimination on any grounds like caste, creed, gender,
religion, etc. ART. 14-18
 Economic Justice – Economic Justice means no discrimination can be
caused by people on the basis of their wealth, income, and economic
status.
Every person must be paid equally for an equal position and all people must
getopportunities to earn for their living. ART. 39
 Political Justice – Political Justice means all the people have an equal, free
and fair right without any discrimination to participate in political
opportunities. ART- 325,326(voting rights, electoral rights)
 Liberty: The term ‘Liberty’ means freedom for the people to choose their
way of life, have political views and behavior in society. Liberty does not
mean freedom to do anything; a person can do anything but in the limit set by
the law. Liberty means freedom to do anything which the law allows
(Montesquieu) . It is absence of restrain, it gives opportunity of development
to all individuals. Liberty is not absolute but always qualified.
 Equality: The term ‘Equality’ means no section of society has any special
privileges and all the people have given equal opportunities for everything
without any discrimination. Everyone is equal before the law.
  Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an
emotional attachment with the country and all the people. Fraternity helps to
promote dignity and unity in the nation.
 The concept of Liberty, Equality, and Fraternity in our Preamble was adopted
from the French Motto of the French Revolution.

Status of Preamble
The preamble being part of the Constitution is discussed several times in the
Supreme Court. It can be understood by reading the following two cases.

In Re Berubari Case 1960:

It was used as a presidential reference under Article 143(1) of the Constitution which
was on the implementation of the Indo-Pakistan Agreement related to the Berubari
Union and in exchanging the enclaves which were decided for consideration by the
bench consisting of eight judges.
Issues raised
The main concerns in front of the Court in this reference were as follows:-
1. Is any legislative measure essential for the enforcement of the agreement
regarding the Berubari Union?
2. Is a legislation of the Parliament referable to Article 3 adequate for the
objective, or is an Amendment of the Constitution in conformation to Article
368 essential along with it or is there another option?
3. Is legislation of the Parliament referable to Article 3 adequate for the
enforcement of the agreement regarding the exchange of enclaves or is an
Amendment of the Constitution in conformance to Article 368 essential for
the objective, additionally, or is there another option?
The Attorney General claimed that the enforcement of the agreement in relation to
Berubari did not require any amendment in the First Schedule to the Constitution,
since the Berubari Union was not at any time lawfully incorporated into West Bengal.
Through this case Court stated that ‘Preamble is the key to open the mind of the makers’ but
it cannot be considered as part of the Constitution. Therefore it is not enforceable in a court
of law.
The opposing argument made by Adv. N.C Chatterjee was that even the Parliament had no
authority to transfer any portion of India to another country whether by normal legislation or
through an amendment of the Constitution. Thus, the agreement should be void and cannot be
made operational even by any legislative procedure. It was asserted that the Preamble states
with clarity that in a democratic republican type of government, the whole territory of India is
above the authority of the Parliament. He said that India must always remain democratic and
republican. Another reason for disputing the agreement was Article 1(3)(c) which mentions
that “the territory of India shall comprise such other territories as may be acquired.”

Keshvananda Bharati v. State of kerala 1973:

Keshvananda Bharati, the petitioner in this case, was the chief of the Edneer Mutt,
which belonged to a religious sect in the Kasaragod district of Kerala.
Kesavananda Bharati had certain pieces of land in the sect that were purchased in
his name. Therefore, he was the owner of that land. The State Government of
Kerala introduced the Land Reforms Amendment Act in 1969, according to which
the government was entitled to acquire some of the sect’s land, of which
Kesavananda Bharati was the chief. Kesavananda Bharati filed the suit in the
Supreme Court on 21st March, 1970, under Article 32 of the Indian Constitution
for enforcement of his rights, which are guaranteed under Article 25 (right to
practise and propagate religion), Article 26 (right to manage religious affairs),
Article 14 (right to equality), Article 19(1)(f) (freedom to acquire property), and
Article 31 (compulsory acquisition of property). When the petition was still under
consideration by the court, the Kerala government passed another act, i.e., the
Kerala Land Reforms (Amendment) Act, 1971.

After the unprecedented decision of Golaknath (Supra) case, Parliament passed

series of Amendments (24th, 25th and 29th Amendments) to indirectly overrule
the said decision 24th Amendment 1971.
The decision in the Golaknath (supra) judgment stated that every amendment
under Article 368 would be hit by the exception of Article 13 which stated that in
any law which violated the provision of Fundamental Rights, then that law would
be void to the extent of the violation. This Article played a crucial role in ensuring
that Parliament would be bound by the Fundamental Rights while exercising their
law-making power. To neutralize this Article, Parliament, by way of an
amendment, added Clause (4) to Article 13, which overrides the provision that any
amendment under Article 368 would not be challenged under Article 13 of the
Constitution. In order to remove all existing ambiguity, Parliament added clause 3
to Article 368 stating that “Nothing in Article 13 shall apply to any amendment
made under this Article.” Parliament went on to amend Article 368(2) by
differentiating between the procedure in an Amendment and an Ordinary Law.
Post the Amendment, the President could not refuse or withhold the Amendment.

25th Amendment 1972 :

Earlier, Article 31 of the Constitution provided Fundamental Rights to Property
and expressed that any person whose property was acquired by the Government
was entitled to adequate compensation. By way of the 25th amendment,
Parliament curtailed the Fundamental Rights to Property and substituted the word
‘compensation’ with ‘amount’ which indicated that Government would be liable
to pay a nominal amount in case of acquisition of property for public purpose.
Article 19 (1)(4) was disassociated with Article 31(2).

Further, Article 31 (c) was added stating that any law passed to implement the
objectives under Article 39 (a) and (b) could not be questioned, challenged, or
reviewed before the Court of law for violating Fundamental Rights under Article
14,19 and 31. Though by way of the 44th amendment, Parliament changed the
Right to Property as a Constitutional Right under Article 300A from a
Fundamental Rights.

29th Amendment 1972

By way of 29th Amendment, Parliament inserted Kerela Land Reforms
(Amendment) Act, 1969 and Kerela Land Reforms (Amendment) Act, 1971 in the
9th Schedule of the Constitution which made it outside the purview of judicial
scrutiny. The 9th Schedule through Article 31A and 31B of the Constitution
contains a list of Central and State laws which fell outside the jurisdiction of
judicial review.

Issues before the court

  Whether the Constitutional Amendment can be applied to fundamental
rights as per Article 368 of the Constitution?
 Whether the 24th Constitutional (Amendment) Act, 1971, is
constitutionally valid or not?
 Whether the 25th Constitutional (Amendment) Act, 1972, is
constitutionally valid or not?
 Whether the 29th Constitutional (Amendment) Act is valid, and to what
extent can Parliament exercise its power to amend the Constitution?

In this case, for the first time, a bench of 13 judges was assembled to hear a
writ petition. The Court held that:
In a 13- Judge Bench, the validity of the 29th Constitutional Amendment was
upheld by 7 Judges, which indicated that its validity was not upheld
unconditionally. It was held that Parliament could amend every provision of the
Constitution which was subject to the condition that it does not violate ‘Basic
Structure of the Constitution’. The minority opinion was reluctant to grant
complete and unfettered authority to Parliament with respect to power of
amendment. The Court upheld the entire 24th Constitutional amendment and
partly found the 25th Amendment to be ultra vires.
Justice K.S. Hegde and Justice A.K. Mukherjea explained that the Constitution of
India was not merely a political document but was a social document based on
social philosophy. Every philosophy like religion contains features that were basic
and circumstantial. While the former could not be altered, the latter could have. It
was upon the Courts to see whether a particular amendment violates Basic
Structure or not.

The Preamble of the Constitution will now be considered as part of the

Constitution.
 The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution.
  The Preamble of the Constitution set out aims and aspirations of the people of
India which have been translated into various provisions of the Constitution.
Preamble is in conformity with the provision of the Constitution and in a few
words expresses the philosophy of the Constitution. The power to amend the
Constitution must be exercised within the bounds of the Constitution and should
not be exercised so as to destroy or abrogate the basic structure or framework of
the Constitution. Sovereignty cannot, therefore, be located in
So, it can be concluded that preamble is part of the introductory part of the
Constitution.

In the case of Union Government Vs LIC of India 1995 also, the Supreme Court has
once again held that Preamble is the integral part of the Constitution but is not directly
enforceable in a court of justice in India.
Sajjan Singh vs. state of Rajasthan 1965: The Supreme Court held that Preamble is
the sum and substance of the features of the constitution. Also said Preamble
represents the quintessence, the philosophy, the ideal, the soul of the entire
constitution.

KK Bhaskaran vs. State of Tamil Nadu 2011: Supreme Court held that the constitution
should be interpreted in such a manner, so as to secure the goal of social, economic and
political justice.

Nandini Sundar vs. State of Chhattisgarh 2011: Supreme Court said that the
promise to provide social, economic and political justice given in Preamble cannot
be forgotten or neglected.

Amendment of the Preamble

 42nd Amendment Act, 1976
After the judgment of the Kesavanand Bharati case, it was accepted that the
preamble is part of the Constitution. As a part of the Constitution, preamble can be
amended under Article 368 of the Constitution, but the basic structure of the preamble
 cannot be amended. The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to
the preamble through42nd Amendment Act, 1976.
‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’. ‘Unity
ofthe Nation’ was changed to ‘Unity and Integrity of the Nation’.

Some Additional case laws

S R Bommai vs. Union of India 1918: Supreme Court held that
Preamble is the integral part of the constitution

FUNDAMENTAL RIGHTS

Origin and development of fundamental rights Magna Carta(1215) in England was the
first written document which assured Englishpeople of certain basic rights and liberties
America was the first country to give constitutional status to the Bill of Rights (1789).
Framers of Indian constitution took inspiration from them and incorporated a dedicated
Part III to fundamental rights. In France Declaration of Rights of Man and Citizen 1789
declared natural, inalienable and sacred rights of man.

Meaning
Part III of Constitution- This part is also known as “Magna Carta of Indian constitution”.
India adopted the idea of Fundamental Rights from Constitution of USA. They
Justifiable Rights which means they can be enforced in court of Law.
Rights given to the individual enforceable by the courts against the state. These rights
are regarded as fundamental because they are most essential for attainment of certain
basic liberties and freedoms in order to live a dignified life.
In Maneka Gandhi VS Union of India 1978 the Supreme Court observed that
“fundamental rights represent the basic values cherished by the people of India and they
protect the dignity of an individual and create conditions in which every human being
can develop his personality to fullest extent.”
 Article 12 – State under Constitution of India
Fundamental Rights are one of the most important provisions of the Constitution. F’R’s are
enforceable through writs. Writs can only be issued against state. Part III of our constitution
consists of a long list of fundamental rights; it starts right from Article 12 to Article 35.
The purpose behind having our fundamental rights rests in the need for having a
just society i.e. a nation ruled by law and not by a tyrant. With great power comes a
greater risk of abuse and in order to safeguard the rights and freedom of individuals
it needs constitutional protection from the acts of the state itself. It is very
important to know, what all is covered under the definition of ‘STATE’, so
article 12 of Part III talks about State, This definition is applicable only to part III &
part IV of the Indian constitution.

Article 12 gives Definition of State

Definition- In this part, unless the context otherwise requires, “the State” includes the
Government and Parliament of India and the Government and the Legislature of each
of the States and all local or other authorities within the territory of India or under the
control of the Government of India.
Article 12 defines “State” as:
All local authorities
According to Webster’s
Dictionary; “Authority”
means a person or body
exercising power to
command. In context of
Union Legislature & State Legislature & Article 12, the word
Executive Executive authority means the
power to make laws (or
Union Legislature: State Legislature:
Parliament (President, Governor, State
LokSabha and legislative assembly orders, regulations, bye-
RajyaSabha) and the State laws, notification etc.)
which have the force of
Union Executive: legislative council law. It also includes the
President, Vice- State Executive: power to enforce those
President, and the Governor and the laws
Council of Ministers Council of Ministers According to Entry 5 of
with the Prime with the Chief Minister the List II of VII Schedule
Minister ‘local government’
includes a municipal
corporation,
improvement trust,
district boards, mining.

The term ‘other authorities’ in Article 12 has not been defined

Other in the Constitution nor in the general clauses Act, 1897 or in
Authorities any other statute of India. Therefore, its interpretation has
caused a good deal of difficulty, and judicial opinion has
undergone changes over time.

Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
“Local Authority shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the
Government within the control or management of a municipal or local fund.”

Other Authority: Article 12 i.e. “other authorities”, this has evolved over time:
Earlier, a restrictive interpretation was given to this term, i.e, the authorities
exercising governmental or sovereign function would only be covered under other
authorities.
The liberal interpretation says that it is not necessary for an authority to be engaged
in sovereign or governmental function to come under the definition of the state. The
bodies like State Electricity Board, LIC, ONGC and IFC also come under “other
authorities”.

University of Madras v. Shantha Bai 1953

Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It
means that only those authorities are covered under the expression ‘other authorities’
which perform governmental or sovereign functions. Further, it cannot include persons,
natural or juristic, for example, unaided universities.

Ujjammabai v. the State of U.P. 1962

The court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule
could not be resorted to the in interpreting ‘other authorities’. The bodies named under
Article 12 have no common genus running through them and they cannot be placed in
one single category on any rational basis.

Rajasthan Electricity Board v. Mohan Lal 1967

The issue was whether an Electricity Board constituted under the Electricity Supply
Act, 1948 could be considered an ‘other authority’ under Article 12.
The Supreme Court had held the Electricity Board to be an ‘other authority’ falling
within the ambit of Article 12. It was stated that since the Electricity Board acts as an
instrumentality of the government and therefore falls within the meaning of the term
‘state’. It was immaterial that the Board carried on some activities which were
commercial in nature.

The Board is a sovereign body which is entrusted with the task of generating and
distributing power to the public. It was also empowered to initiate certain schemes and
carry out hydraulic surveys for the purpose of fulfilling its functions. The Board could
also make rules and regulations to exercise control over the electricity undertakings and
thus it was held to be an ‘other authority’ under Article 12.

With respect to the application of the principle of ejusdem generis, the Court held that
this principle cannot be applied while interpreting Article 12. For the application of this
principle, there must be a ‘distinct genus’ or some commonality between the bodies
enumerated in Article 12. Since the bodies mentioned in Article 12 have no genus, the
principle of ejusdem generis could not be applied while interpreting Article 12.
The Supreme Court held that ‘other authorities’ would include all authorities created by
the constitution or statute on which powers are conferred by law. Such statutory
authority need not be engaged in performing government or sovereign functions. The
court emphasized that it is immaterial that the power conferred on the body is of a
commercial nature or not.
 1. LIC, ONGC, IFC: whether instrumentality or agency
Test to determine instrumentality
To determine whether an entity is an agency or instrumentality, the following factors
are to be taken into consideration:
 Share capital and financial assistance: If the whole of the share capital of the
corporation is owned by the central or any of the state governments, then it will
show that the corporation is an instrumentality of the state. The state may also
provide financial assistance to the corporation.

In Sukhdev Singh v. Bhagatram (1975), the Court observed that it is not necessary for
the state to provide direct financial aid to the corporation. The state may provide tax
exemptions or other forms of indirect financial assistance to the corporation. Indirect
financial aid will also be a relevant factor while determining whether a corporation is
an instrumentality of the State or not.
 State control: If the central or any of the state governments exercises pervasive
control over the entity, then it can be concluded that the corporation is an agency
of the state.
 Monopoly: Certain corporations enjoy monopolies in their respective markets
because the state prevents other corporations from operating in the same market.
Thus, if an entity enjoys monopoly status due to the restrictions imposed by law
enacted by the state, then such entity is likely to be considered an agency or
instrumentality of the state.
 Functions: The nature of the functions performed by the corporation is another
relevant factor. If the corporation performs or discharges functions which are
largely of a public nature, then such a corporation will be considered as an
instrumentality.

The Corporations are State when they enjoy Power to make regulation and those
regulations have force of law. So LIC, IFC (Industrial Finance Corp.) and ONGC were
held to be State because they were performing very close to governmental or sovereign
functions.
2. INTERNATIONAL AIRPRT AUTHORITT OF INDIA

R.D Shetty v. International Airport authority (1979)

Court held that following factors would determine whether a body comes under the
definition of State as defined in Article 12 of the Constitution:
 The entire share capital is held by the government.
 Where the financial assistance of the State is so much as to meet
almost entire expenditure of the corporation
 Deep and pervasive control of the State
 The functions of the corporation are of public importance and
closely related to governmental functions,
 A department of Government transferred to a corporation.
 Enjoys “monopoly status” which State conferred or is protected by it.

The SC concluded International Airport Authorities undoubtedly an instrumentality or

agency of the Central Government and falls within the definition of ‘State’.

2. INDIAN PATROLEAUM CORPORATION

Som Prakash v. Uol (1980)
Question was where a statutory company Indian Petroleum Corporation is a state under
Article 12 or not. It was observed that merely because a legal corporation has a legal
personality of its own, it does not mean that the corporation is not an agent or
instrumentality of the state if it is subject to governmental control for all important
matters. A public performs duties and carries out its transactions for the benefit of the
state. Therefore, the said body was held to be ‘state’.
Some of the tests laid down by this Court for deciding whether a body is State within
the meaning of Article 12 are:
 Financial resources of the state are the chief funding source of the corporation
 Functional character of government in essence
 Plenary Control in the hands of government
 Prior history of the same activity being carried out by the government and
made over tothe new body
 3. REGIONAL ENGINEERING COLLEGE
Ajay Hasia v. Khalid Mujib (1981)
In this case, an Engineering College was managed by a society which was registered
under the Jammu and Kashmir Registration of Societies Act, 1898. One of the
candidates who applied for admission to the college was called for an interview. In the
interview, he was asked questions about his parents and residence. These questions had
no relation with the subject for which the interview was being conducted. Subsequently,
the candidate challenged the interview process for being arbitrary and violative of
Article 14 of the Constitution.
Issue:
The Court had to determine whether the society registered under the Act qualified to be
a state within the meaning of Article 12.

Judgment
The 5-judge bench of the Supreme Court unanimously held that the society which
administered the college was state within Article 12 and held that society was an
instrumentality of the state. It was immaterial as to how the juristic person was brought
into existence. The factor which was relevant was the purpose for which the college
was constituted.
The society which administered the college was registered under a statute. The
government exercised control over the functioning of the society. Thus, the society was
an agency of the government.
Court approved of the tests laid down in R.D Shetty case and on basis of the tests held
that Regional Engineering College, Srinagar is State under ‘other authorities’
Court also added that these tests are not conclusive, they are merely indication which
have to be used with care and caution, because while stressing the necessity of a wide
meaning to be placed on the expression “other authorities” it must be realized that it
should not be stretched so far as to bring in very autonomous body which has some
nexus with the government within the sweep of the expression. A wide enlargement of
the meaning must be limited by wise limitation.

4. NCERT
Chander Mohan Khanna v. National Council of Educational Research and
Training (1992)
In this case, the question arose whether the National Council of Educational Research
(NCERT) was a “State” as defined under Article 12 of the Constitution. NCERT is a
society registered under the Societies Registration Act. After considering the provisions
of its memorandum of association as well as the rules of NCERT, this Court came to
the conclusion that since NCERT were not wholly related to governmental functions
and that the governmental control was confined only to the proper utilization of the
grant and since its funding was not entirely from government resources, the case did not
satisfy the requirements of the State under Article 12 of the Constitution.

5. BCCI
Zee Telefilms v. Union of India (2005)
Question raised was whether Board of Control for Cricket in India (BCCI) is State
within
meaning of Art 12. The majority Court held that the BCCI would not come within the
definition of State under Article 12. The facts established in this case:-
 Board is not created by a statute.
 No part of the share capital of the Board is held by the Government.
 Practically no financial assistance is given by government to meet the whole
or entire expenditure of the Board.
 The board does enjoy a monopoly status in the field of cricket but such status
is not State conferred or State protected.
 There is no existence of a deep and pervasive State control. The control if
any is only regulatory in nature as applicable to other similar bodies. This
control is not specifically exercised under any special statute applicable to the
Board. All functions of the Board are not public functions nor are they closely
related to governmental functions. The Board is not created by transfer of a
Government owned corporation. It is an autonomous body.
On the other hand, the minority Court held that the BCCI would fall within the ambit
of the definition of “State” under Article 12. The minority in Zee Telefilms opined that
keeping in view the fact that the BCCI discharges an important public function and that
its actions may impinge on the fundamental rights of the players, the actions of the body
are subject to judicial review. Interestingly, the minority Court in the same breath also
opined that in time of privatization and liberalization where in most of the
Governmental functions are being relegated to private bodies; the actions of such
private bodies would also be amenable to the write jurisdiction of the Court.

6. CSIR
Sabhajit Tewary v. Union of India and Ors. (1975)
In the year 1972, Sabhajit Tewary, who was a junior stenographer appointed under the
Council of Scientific and Industrial Research (CSIR), filed a writ petition to the Supreme
Court under Article 32 of the Constitution of India, claiming parity of remuneration with a
newly appointed stenographer in the said institute. He claimed his right to equality under
Articles 14 and 16 of the Indian Constitution. The petitioner claimed that the body, CSIR,
registered under the Societies Registration Act, would work as an agency of the government,
executing sovereign functions. However, a bench of 5 judges rejected the writ petition. It was
stated that the features of the body were not sufficient for categorising it under ‘other
authorities’ of Article 12. The Court held that the writ petition was not maintainable as CSIR
doesn’t fall within the scope of the ‘state’ under Article 12.

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002)

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology was a landmark case in
India's constitutional law that addressed the applicability of Article 12 of the
Constitution to the Council of Scientific and Industrial Research (CSIR). The case
involved the termination of Mr. Pradeep Kumar Biswas and others' services by the
CSIR, a government agency.
 The Petitioner contended that, from reading the Memorandum of Association
(MoA), CSIR should be considered a state under Article 12, as it was established
for national interest purposes and aimed to foster industrial growth in India.
They argued that CSIR performs a sovereign function, which warrants its
recognition as a state.
 The respondents contended that the majority of the members of the governing body
were non-governmental members. The president of the body has the power to
nominate as well as terminate the membership of the ex-officio members. Even being
the ex-officio President of the society, who in actual is the Prime Minister of India,
the power was being exercised by him as the President of the society only.
The judgement delivered in this case preferred structuralism and was delivered in a 5:2
ratio, overturning the previous ruling by a 5-judge bench in the Subhajit Tewary case.
The judges established that CSIR falls within the ambit of “other authorities” as defined
under Article 12 of the Constitution of India. Tests like the formation of the body, object
and function of the body, management and control of the body, and the financial aid
provided to it were laid down by the Apex Court to assess the nature of the activities
performed by the body, which would cause them to be classified under “state”.

The case analyzed the administrative, financial, and functional aspects of CSIR, and the
majority opinion held that CSIR is within the meaning of "the State"

7 judge bench held that the ultimate test in determing whether an entity would be an
instrumentality of the State would be whether functionally, financially and
administratively the body was under the deep and pervasive control of the State. Mere
regulatory control by the Government will not suffice to fulfill the requirements of
Article 12.
The case overruled the judgment in Sabhajit Tewary v. Union of India (1975).
The case developed the test of deep and pervasive state control, which widened the
scope of "the State" under Article 12

7. UNITED NATION
Recently Delhi High Court has given judgment in Sanjaya Bahel v. Union of India
& Others case, that the United Nations is not a "State" within the meaning of
Article 12 ofthe Constitution of India and is not amenable to the jurisdiction of the
Court under Article226 of the Constitution of India. The court says, by no stretch of
the imagination an organization of the United Nations which is an international body
be treated as "instrumentality" and or an "agency" of the Government."

Whether Judiciary Is State

The Judiciary is not expressly mentioned in Article 12 and a great amount of dissenting
opinions exist on the same matter. Bringing judiciary entirely under Article 12 causes a
great deal of confusion as it comes with an attached inference that the very guardian
of our fundamental rights is himself capable of infringing them
Jurists like H.M. Seervai, V. N .Shukla consider judiciary to be State. Their view is
supported by Articles 145 and 146 of the Constitution of India.
 ( i ) The Supreme Court is empowered to make rules for regulating the
practice and procedure of Courts.
 ( ii ) The Supreme Court is empowered to make appointments of its
staff and servants; decide the its service conditions.
 In Prem Garg v/s Excise Commissioner H.P. the Supreme Court
held that when rule making power of judiciary is concerned, it is State.
 Other jurists say that since judiciary has not been specifically
mentioned in Article 12, it is Not State.
 In Rati Lal v/s State of Bombay, it was held that judiciary is not State
for the purpose of Article12. In A.R.Antulay v/s R.S.Nayak and
N.S.Mirajkar v/s State of Maharashtra, it has been observed that
when rule making power of judiciary is concerned it is State but when
exercise of judicial power is concerned it is not State.

Naresh Shridhar Mirajkar v. State of Maharashtra is a milestone

one. The journalist who filed the petition claimed that the Trial Judge's
order prohibiting the press from publishing the evidence of the defense
witness in a particular case violated his fundamental rights. It was
urged before the Judge that the fundamental principle in the
administration of justice was that it must be open to the public and that
exceptions to such public administration of justice were rare.

No witness could claim protection from publicity on the ground that if

the evidence is published, it might adversely affect his business. The
arguments were outright dismissed. The petition was denied by the
High Court on the grounds that a court order was not subject to writ
jurisdiction. The Supreme Court raised the following points after
admitting the petition under Article 32 alleging that the Trial Judge's
judicial order violated the plaintiff's fundamental rights under Articles
19(1)(a) and 19(1)(g) of the Constitution: "firstly, whether a judicial
order suppressing evidence of a witness on the grounds that his
business would suffer, breaches the fundamental right to freedom of
speech and expression, entitling the petitioner to invoke Article 32 and
secondly, whether the Supreme Court could issue a writ to the High
Court in this instance. According to the majority, it was necessary to
suppress the evidence in question in order to uphold justice and
guarantee a "fair trial." Additionally, it was said that the challenged
order would not be in violation of Article 19(1)(a), as Article 19(2)
protects both the right to hold an in-camera trial and the right to
withhold publication. The use of such powers may have an impact on
third party rights, but they must be subordinate to the "effective
administration of justice." Moreover, since the freedom of speech was
affected only incidentally and indirectly, there was no violation of
fundamental rights.
The majority judgment says that a trial may be held in camera if the
Court so desires and that curbing the publication of the proceedings
would be an extension of the same inherent powers. Only one witness
is testifying in camera in this case, and the whole trial is not being held
in camera.
Second, the Court is not required to defend the commercial interests of
witnesses who testify in front of it, and particularly not at the expense
of a transparent and fair administration of justice.
Thirdly, what would be the "appropriate" remedy against a final
decision of a Court which is prima facie violative of fundamental
rights? In particular, if due process has not been followed, Hidyatullah,
J.'s justification for bringing the judiciary under Article 12 seems
reasonable.

A.R. Antulay v/s R.S.Nayak

The Apex Court's decision to suo motu transfer a case to the High Court
was challenged in the case of A.R. Antulay v. R.S. Nayak. The
appellant's contention that only a Special Judge could hear the case was
denied. The writ petition challenging the legality of this Court's order
and verdict was deemed a nullity by the Supreme Court. The appellant
filed a Special Leave Petition with the Supreme Court challenging the
 Special Judge's authority to hear the matter in breach of his
fundamental rights guaranteed by Articles 14 and 21 and the Criminal
Law Amendment Act of 1952. The Special Judge was a serving judge
of the High Court.
According to the majority opinion, the order transferring the cases to
the High Court was illegal because only Special Judges had the
authority to hear the offences. According to its directives, the Supreme
Court could not grant the High Court jurisdiction because such
authority was strictly legislative. A superior court could always correct
its own error brought to its notice either by way of petition or ex debito
justitiae. The singling out of the appellant for a speedier trial by the
High Court for an offence where it lacked jurisdiction to try persons
under the Act was unwarranted.
This case was not filed under Article 32 but rather was considered as a
Special Leave Petition under Article 136. The Court did, however,
consider whether a writ petition may be permitted under Article 32 to
challenge a ruling by the court. In this case, it was evident that the
Supreme Court had granted the High Court jurisdiction that it was not
authorised to grant. It was also acknowledged that relevant legislative
formalities and authoritative precedents had been disregarded. The
only option under such "extraordinary" conditions was to use Article
32, which is a fundamental right in and of itself. This implicitly leads
one to infer that since the Judiciary is willing to be subject to Article
32 by reconsidering its decision, it is subject to fundamental rights.

It was held that that when rule making power of judiciary is concerned
it is State but when exercise of judicial power is concerned it is not
State.

 Rupa Ashok Hurra v. Ashok Hurra 2002 the Apex Court reaffirmed
and ruled that no judicial proceeding could be said to violate any of the
Fundamental rights and that it is a settled position of law that superior
courts of justice did not fall within the ambit of ‘state’ or ‘other
authorities’ under Article 12.
This gave the rationale that a Superior Judicial body when acting
“Judicially” would not fall under the definition of State but when it
performs any administrative or similar functions e.g conducting
examination, it will fall under the definition of “state” and that remedy
could be sought in that context only in case of violation of fundamental
rights.