A MARK SHIFT
Govt. of India Act 1935 mentioned structures and their powers.
There was very little discussion on the rights of people being ruled.
Constitution of India was a mark transformation from the previous Act.
It recognized the basic human rights as Fundamental Rights.
Not Just Recognition.
But Provided for the constitutional mechanism for the enforcement.
PART III of Indian Constitution Address Five ISSUES
Rights for whom? “Actors”
Form of State Action Under Scrutiny? “Form”
Effect of Unconstitutionality on the Validity of a law? “Effect”
Rights and the Limitations- “Content”.
Remedies for the enforcement- “Remedies”
Actors Form Effect
Part III of
Content Remedies Indian
Constitution
Who can claim the Rights under part III?
Person=Natural
Citizen of India
or Artificial
Significance
The former is defined under General Clause Act and includes companies and
associations.
The Other is Governed my Constitution Part II i.e. Citizenship.
Fundamental Rights can be claimed by:-
What is Your
Opinion?
ARTICLE 12 of Indian Constitution
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
Local Authorities
Other Authorities
Within the Under the Control
territory of India of Govt… of India
Within the Under the Control
Territory of India of Govt… of India
Article-12
Against whom fundamental rights can be claimed?
What is a ‘State’?
What is an ‘instrumentality of State”?
What interpretative methodology is used by the Supreme Court ?
Wordings of Article 12 are carefully chosen -
The use of
Constituent
They kept it “other
assembly did
open for the authority”
not intend to
future under Article 12
provide a list of
interpretations. makes it amply
such authorities
clear.
Interpretation of term “STATE”
Structuralism
Functionalism
Former believes Constitution as a document establishing various
structures and its subsequent interaction with an Individual,
Later idealises Constitution as a living document thereby stressing
more on idea of justice, efficiency and efficacy,
Structuralism
Considers the Structure established under the Constitution
Drafting committee concentrated on body created by Law.
It did not considered Operational paradigm or State Patronage for
determining the body as State.
It believes constitution establish Overall Structure of Governance and
substructure thereunder.
Drawbacks of Narrow Interpretation
Limits the player under Article 12
Writs can not apply and Civil suit is to be instituted,
Even Article 226 ambit is narrowed down,
Delays Justice,
Fails to Understand the Redundancy of Institution over time.
Functionalism
It is more comprehensive principle. Decided on case to case basis.
Functionalist believe constitution to be evolving document and constantly refines the
existing precedents.
It works towards constitutional values and schemes.
But it is more indeterminate than structuralism.
Judges Socio-Political predilections transform into interpretation.
RSEB v Mohanlal [1967]
Case on wrongful termination of Service,
Supreme Court conducted test of instrumentality,
As body was established through statute,
It was considered to be state,
Sukhdev v Bhagatram [1975]
Justice Mathew followed a different method to arrive at similar conclusion,
Two statutory corporations[ONGC and LIC], one statutory commission[IFC]
Framed rules under the power conferred on them for termination and removal of
employees,
Violated their own rules and fired employees,
Three entity at dispute,
Mathew J
Arrived at same conclusion but with different method of Interpretation
Two Concepts of State
One wielding authority over subjects
Other a Service Corporation
He concentrated on later which gave more importance to the public function performed by
the entity in question.
Justice Mathew
Share Capital held by the Government,
Financial Assistance,
State protection or monopoly ensured ,
Deep and pervasive state control,
Functions performed by the Corporation,
This will establish the entity to be the State or instrumentality of the State,
Totality of Circumstances
Before branding a body as State,
Totality of circumstances must be considered,
Thereupon decision must be rendered,
Instrumentality of State
Berkley v Third Avenue Railway Corp… [1936]
Judges referred to Instrumentality Doctrine evolved in USA
Cardozo. J explained doctrine of, agency or instrumentality.
Dominion may be so complete, interference so obtrusive, that by
the general rules of agency
the parent will be a principal and the subsidiary an agent.
Lowendahl v Baltimore & Ohio Railroad Co
Majority Capital Share
Financial Assistance
Deep and Pervasive Control
To Pierce Juristic Veil
Sabhajit Tewary v Union of India 1975
Five Judge Bench,
Gave decision on same day,
CSIR held to be a body not qualifying the definition of the State,
As its legal form is derived from Societies Act
RD Shetty v Int. Airport Authority [1979]
Dispute on awarding Contract for running snack bar and restaurants at Airport,
Eligibility criteria was contented,
Airport director can not act in Arbitrary manner,
As the Airport Authority of India is instrumentality of the State,
Agency or instrumentality of State Amenable to Fundamental Rights
Important Points Airport Authority
Expansionist State Activities
Pervasive State Control through regulations and licencing
Influence of State while making decisions
Fair Dealing and Transparency required even in commercial actions of State
State, using its pervasive hold over all aspects of public life ranging from education to public health to plain
commercial activities such as the running of banks and the management of airports, would be able to effectuate
social change.
Central Inland Water Transport Corp… v Brojoy Nath Ganguly [1981]
A government company under Section 617 of the Companies Act 1956
Activity performed was out of purview of the State essential function,
Does trading and business activity of state falls under the definition of the State?
If it is state – What is the mode of interpretation?
any activity bearing some impact on
public life would qualify as a State function.
Ajay Hasia V Khalid Mujib 1981
Admission to Engineering college J &K
College registered under Societies Act J & K
Viva voice marks over the questions asked which were unrelated to subject.
Is allocation of 1/3rd Marks Arbitrary.
Violation of Article 14
Decision of Ajay Hasia
Introduced Juristic Veil- How to lift the veil
Share Capital of the entity,
Financial Assistance, Substantial
State protected Monopoly
Deep and Pervasive Control,
Functions of the Corp… closely related to public function
If a Government department was transferred to a Corp…
AJAY Hasia Fallout
Courts came back to Pure Structuralism
Functionalism took back seat
functional, financial and administrative’ control,
Som Prakash Rekhi v Union of India [1981]
Bharat Petroleum was held to be State ,
Krishnaiyer J stated “the law had evolved to encompass a ‘mere agent or
surrogate of the State, in fact owned by the State, in truth controlled by the
State and ineffect an incarnation of the State’ within the purview of ‘State’.
BS Minhas v Indian Statistical Institute
Only Structure was viewed,
Established under Societies Act
Financed and Controlled by the Govt…
Governed by Indian Statistical Act 1959
3 of 25 members were nominated by Govt…
Institute was open to receive finance privately,
Only Financial and Administrative Control Checked
Chander mohan v NCERT
Society Registered under Societies Act
Government Advises and nominates some members to its
board.
Again Structure was considered not the functions.
Pradeep kumar Biswas v Indian institute of
chemical Biology [2002]
Seven Judge Constitutional Bench
Overruled Sabhajiit Tewary v UOI,
Justice Ruma Pal reconsidered whole jurisprudence of Article 12
Confirmed Ajay Hasia
Crystalized Grounds Further,
Entity must be Functionally, Administratively, Financially controlled by Govt in dominant fashion…
Mere regulatory control will not suffice,
All three must be Satisfied for branding an
entity as the “State”.
Dissenting Judges Lahoti and Raju pointed
fundamental flaws in the approach
ZEE Telefilms v UOI
BCCI not a State,
Not created by Statute,
No Financial Assistance,
No Deep and pervasive state control,
Not a State
BCCI v Cricket Control Bihar
Mismanagement of Funds,
Function of Board held to be that of Public in Nature,
Within ambit of Article 226,
Court Appointed Committee
Court crafted reforms
RD Shetty v
Sukhdev v Sabhajit Tewari v
Airport
Bhagatram CSIR
Authority
Mere Regulatory
Only Regulatory Instrumentality
Framework was
Framework analyzed Doctrine Applied
analyzed.
Agency or
Justice Mathew
CSIR declared not Instrumentality
Suggested to look at
“State” Amenable to
broader analysis.
Fundamental Rights.
Conception of
Where functionalism
Expansive State
was preferred
Activity
All Functions having
Instrumentality or state influence were
Agency Applied liable to be scrutinized
under Part III
Pradeep Kumar
Ajay Hasia V Khalid
Biswas v Indian Current Test
Mujib
Institute of Biology
Concept of
7 Judge Bench Financial
Juristic Veil
Structural
Confirmed Ajay
Analysis Became Administrative
Hasia
Dominant
Crystalized test
With others Functional
into FAF
Financial and All three must be All three must be
Administrative established proved
Court Never
provided how
All in approach
many elements
must be satisfied
Juristic veil
One- two- all ? became
dominant
• Certain Entities Perform
essential State Functions
• State Support is apparent
• But fails the test of State
• Still liable under the
BCCI Twist jurisdiction of Article 226
• Writ of HC can be utilized
• When you perform essential
public function
• Your actions must be
scrutinized under Part III
How to approach question
Explain Article 12 and contours of “other authority”
Explain the two interpretative approach
Explain Imperative cases with RSEB- Sukhdev-RD Shetty- Ajay Hasia and Pradeep Kumar Biswas
Explain Hybrid approach of Justice Mathew which highlighted importance of Functional Dominant Analysis
and criticize the same with mandatory three pronged structural dominant test of Pradeep kumar Biswas
Be critical when you do it
In conclusion use the preference of judiciary towards Functionalism in BCCI case and Guwhati HC while
evolving the identification of the “State”
Article 32 and 226
Writ Jurisdiction
Article 226 is subject to interpretation of State by Supreme Court
Hence Article 226 can not undermine the interpretation of Supreme Court while issuing
writs or directions in nature of Writs.
This is done to have uniform legal position throughout India.
Whether Judiciary is a State under Article 12?
Administrative Side
Judicial Side
Naresh Sridhar Mirajkar v State of Maharashtra (1967)
Nine Judge Bench
Judicial Side
Administrative Side,
Justice Hidayatullah Dissent
Justice Hidayatullah
A Judge ordinarily decides controversies between
the parties, in which controversies he does not
figure, but occasion may arise collaterally
where the matter may be between the Judge and
the fundamental rights of any Person by reason of
the Judge's action.
Administrative
Side
Judicial Side
AR Antulay v RS nayak [1994]
Five Judge Bench
Administrative Side
Judicial Side
Address Grave Illegality- No Writ- Article 142
Actus curiae neminem gravabit
ARTICLE - 13
Laws inconsistent with or in derogation of the fundamental rights
(1)
(1)All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall,
to the extent of such inconsistency, be void.
(2)
(2)The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
(3)
(3)In this article, unless the context otherwise requires,-
(a)
(a)"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in
the territory of India the force of law;
(b)
(b)"laws in force" includes laws passed or made by Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in
particular areas.
(4)
(4)Nothing in this article shall apply to any amendment of this Constitution made under article 368.
Meaning of the term Law U/A 13
The definition of Law U/A 13(3) is very broad.
It includes Legislative Acts, Ordinances, Delegated
Legislations, Sub-Legislation, Executive Orders, and customs.
The question is whether Amendment is law?
Doctrine of Severability
Both pre- and post-constitutional legislation are only declared void to the extent of
their inconsistency with any of the fundamental rights.
Rest of the law be saved by the action of the Severability Doctrine.
Doctrine was explained in the case of RMD Chamarbaugwalla v Union of India.
Here the court looks into all aspect of the law such as legislative intent, Language,
scheme, aspect of law to be removed whether essential.
Court may either read down the provision to avoid conflict or sever it if former is
not possible.
Doctrine of Eclipse
It nullifies the provision in the statute books.
The doctrine was explained in Bhikaji Narain Dhakras v State of
Madhya Pradesh.
The operation of fundamental rights eclipses a law that has been
validly enacted otherwise.
This doctrine is not of much relevance as court as refused to apply
same for post-constitutional law.
Doctrine of Waiver
Can citizens waive the fundamental right?
As the rights are not optional.
There is no aspect of Fundamental Rights which can be voluntarily
waived by the citizens/persons within the territory of India.
Whether Amendment is Law?
There is long list of cases which decides on this aspect.
The First case which was initiated on the question was Kameshwar Prasad v State of Bihar.
Shankari Prasad v UOI
Sajjan Singh v State of Punjab
IC Golakhnath v State of Punjab
Keshavnanda Bharti v State of Kerala
SOLVE QUESTIONS