FUNDAMENTAL RIGHTS
Rights are claims that are essential for the existence and development of
individuals. In that sense there will be a long list of rights. Whereas all these are
recognized by the society, some of the most important rights are recognized by
the State and enshrined in the Constitution. Such rights are called fundamental
rights. These rights are fundamental because of two reasons.
1. These are mentioned in the Constitution which guarantees them; and
2. These are justifiable, ie, enforceable through courts.
The fundamental rights were included under Part III of the Indian Constitution
because they were considered essential for the development of the personality
of every individual and to preserve human dignity. These Fundamental Rights
guarantee to each citizen basic substantive and procedural protections from
any arbitrary state actions, but some rights are enforceable against individuals
also. However, these rights are not absolute or uncontrolled and are subject to
reasonable restrictions as necessary for the protection of general welfare.
Origin of fundamental rights:—
This Chapter of the Constitution of India is well described as the Magna Carta
of India. As early as in 1214, the English people exacted an assurance from King
John for respect of the ancient liberties. The Magna Carta is the evidence of
their success which is a written document. This is the first written document
relating to fundamental rights. Thereafter from time to time, the King had to
accede to many rights to his subjects. In 1689, the Bill of rights was written
consolidating all important rights and liberties of the English people. In France
Declaration of Rights of Man and the Citizen (1789) declared the natural,
inalienable and sacred rights of man. Following the spirit of the Magna Carta of
the British and the Declaration of the Rights of Man and the Citizen of France,
the Americans incorporated the Bill of Rights in their Constitution. The
Americans were the first to give Bill of Rights a Constitutional status. While
drafting the Constitution of India, our Constitutional draftsmen took an
inspiration and therefore incorporated under Part III what is called "fundamental
rights".
Classification of fundamental rights:—
FUNDAMENTAL RIGHTS 1
Fundamental
Article(s) Available to Possible Against Whom
Right
Primarily the State; some
provisions (like Article 17
Right to Equality 14 – 18 All persons
and 18) apply to
individuals also
Article 19: Citizens
Right to Freedom 19 – 22 only; Articles 20–22: The State
All persons
Right against Both the State and private
23 – 24 All persons
Exploitation individuals
Right to Freedom
25 – 28 All persons The State
of Religion
Cultural and
Citizens and
Educational 29 – 30 The State
minorities
Rights
Right to
The State (for violation of
Constitutional 32 All persons
Fundamental Rights)
Remedies
It is important to Noted that the 44th Amendment has abolished the right to
property as a fundamental right as guaranteed by Art. 19(1)(0) and Art.31 of the
Constitution. But now it is just a legal or a Constitutional right as incorporated
under Art. 300-4. It is not a Fundamental Right anymore.
Definition of state (Article 12):— Article 12 says that unless the context
otherwise requires the term 'State' includes the following:
1. The Government and Parliament of India, i.e., Executive and Legislature of
the Union
2. The Government and the Legislature of each of the States, i.e., Executive
and Legislature of States.
3. All the local or other authorities within the territory of India or under the
control of the Government of India.
The term 'State' thus includes executive as well as the legislative organs of the
Union and States. Apart from that alll the local or other authorities within the
territory of India or under the control of the Government of India are are
included in the definition of state.
FUNDAMENTAL RIGHTS 2
1. Local Authorities:— The term local authorities as defined in Section 3 (31)
of the General Clauses Act, 1897 refers to authorities like Municipalities,
District Boards, Panchayats, Improvement Trust and Mining Settlement
Boards. Thus, In Mohammed Yasin v. Town Area Committee, the Supreme
Court held that the bye-laws of a Municipal Committee charging a
prescribed fee on the wholesale dealer was an order by a State Authority
contravened Article 19 (1)(g).
2. Other authorities:— The term other authorities have nowhere been
defined. Therefore, its interpretation has caused a good deal of difficulty,
and judicial opinion has undergone changes over time.
In University of Madras v. Shantha Bai (1954), the Madras High
Court held that 'other authorities' could only indicate authorities of a like
nature, i.e. ejusdem generis. So construed, it could only mean authorities
exercising governmental or sovereign functions. It could not include
persons, natural or juristic, such as, a University unless 'maintained by the
State'.
However, In Ujjammbai v. State of U.P.(1962), the Court rejected this
restrictive interpretation of the expression 'other authorities' given by the
Madras High Court and held that the ejusdem generis rule could not be
resorted to in interpreting this expression.
And, In Electricity Board, Rajasthan v. Mohan Lal. (1967), the
Supreme Court held the expression 'other authorities' is wide enough to
include all authorities created by the Constitution or statute on whom
powers are conferred by law. It is not necessary that the statutory authority
should be engaged in performing governmental or sovereign function. On
this interpretation the expression 'other authorities' will include Rajasthan
Electricity Board
Further, in Sukhdev v. Bhagatram (1975), It was held that Oil and
Natural Gas Commission, Life Insurance Corporation, Industrial Finance
Corporations are all 'States' under Article 12, because all these three
statutory Corporations have power to make rules and regulations for
regulating conditions of service of their employees and such rules and
regulations have the force of law.
Moreover in subsequent cases, the Supreme Court has given a broad
and liberal interpretation to the expression 'other authorities' under Article
12. With the changing role of the State from merely being a police State to a
FUNDAMENTAL RIGHTS 3
welfare State it was necessary to widen to scope of the expression
"authorities" in Article 12 so as to include all those bodies which are, though
not created by the Constitution or by a statute, are acting as agencies or
instrumentalities of the Government.
In Ramana Dayaram Shetty V. The International Airport Authority of
India (1979), the Supreme Court held-If a body is an agency or
instrumentality of government it may be an 'authority' within the meaning of
Article 12 whether it is a statutory corporation, a government company or
even a registered society. Accordingly. the International Airport Authority
created by an Act of Parliament is the "State" within the meaning of Article
12.
In the aforesaid case, the Court laid down the following tests for
determining whether a body is an agency or instrumentality of the
Government :-
1. Financial resources of the State is the chief funding source, ie., the
entire share capital of the corporation is held by Government.
2. Existence of deep and pervasive State control.
3. Functional character being governmental in essence, ie., the functions
of the corporation are of public importance and closely related to
governmental functions.
4. A department of Government is transferred to a corporation.
5. Whether the corporation. enjoys monopoly status which is State
conferred or State protected
In Central Inland Water Transport Corporation v. Brojo Nath Ganguly
(1986), applying the above test, Central Inland Water Transport Corporation
was held to be State' under Article 12.
In Ajay Hasia v. Khalid Mujib(1981), it has been held that a registered
Society is an agency or "instrumentality of the State" and hence a 'State'
within the meaning of Article 12 as It is completely controlled by the
Government.
3. Authorities under the control of the Government of India:— By words
'authorities under control of the Government of India', is meant to bring into
the definition of State all areas outside Indian territory but which are under
or may come under the control of the Government of India, such as,
FUNDAMENTAL RIGHTS 4
mandated or trust territories. Such a territory may come under India's
control by international agreement. Thus, even such areas will be the
subject to Part III and the inhabitants of such areas may also claim the
benefit of Fundamental Rights guaranteed in Part III.
Judiciary included in the word "State"?
The question whether the judiciary is included within the definition of 'the
State' in Article 12 arose for consideration of the Supreme Court in Naresh
v. State of Maharashtra(1967). which held-Even if a Court is the State, a
writ under Article 32 cannot be issued to a High Court of competent
jurisdiction against its judicial orders, because such orders cannot be said
to violate the fundamental rights.
Mr. H.M. Seervai is of opinion that the judiciary should be included in the
definition of 'the State' and a Judge acting as a Judge is subject to the writ-
jurisdiction of the Supreme Court. The courts, like any other organ of the
State, are limited by the mandatory provisions of the Constitution and they
can hardly be allowed to override the fundamental rights.
The Supreme Court in A.R. Antulay v. R.S. Nayak(1988), held-The Court
cannot pass an order or issue a direction which would be violative of
fundamental rights of citizens. Thus, it can be said that the expression
"State" as defined in Article 12 of the Constitution includes judiciary also
Thus, the word 'state' under Article 12 jurisprudence has evolved in India
through various interpretations and discussions in the High courts and the
Supreme court. It has been given a wider meaning which ensures that Part-III
of the constitution can be applied to a larger extent.
FUNDAMENTAL RIGHTS 5