Second-year Law Notes & Flashcards

First demand of fundamental rights 

The first explicit demand for the fundamental rights came in the form of the “Constitution of India Bill, 1895" which was created under guidance of Bal Gangadhar Tilak. This bill popularly called “Swaraj Bill 1895" spoke about freedom of speech, right to privacy, right of franchise etc. After that numerous drafts had been created. In the Madras session of 1927, a resolution was adopted to draft a “Swaraj Constitution” for India. The Motilal Nehru Report of 1928 demanded inalienable fundamental rights for the people of India. It was basically inspired by the American bill of rights, which had a great impact on the thinking of Indian Leaders. The Nehru report was discarded by Simon Commission.  

Advisory Committee on Fundamental Rights 

The Constituent Assembly had appointed an advisory committee on fundamental rights headed by Sardar Vallabhbhai Patel on January 24, 1947. This advisory committee dealt with the rights of citizens, minorities, tribal and excluded areas.  

Sapru Committee recommendations on Fundamental Rights 

The Sapru committee report was published in 1945. This committee recommended that the Fundamental Rights "must" be included in the Constitution of India. This committee divided fundamental rights into two parts viz. Justifiable Rights and Non-justifiable rights. The Justifiable rights were those enforceable by a court of law. These enforceable rights were incorporated in the Part III of the Constitution. The non-justifiable rights were incorporated as a directive to the state to take all measures to provide those rights to individuals without any guarantee. They were incorporated in the part IV of the constitution and were called Directive Principles of State Policy.  

Fundamental Rights are not absolute rights, these are restricted rights. Supreme Court in A.K. Gopalan v/s State of Madras case MANU/SC/0012/1950, said that there cannot be any such thing as absolute or uncontrolled liberty only freed from restraints as it may lead to anarchy and disorder.  

The purpose of Fundamental Right is to establish rule of law. On the other hand, if state is given absolute power over the individual, the result would tyranny or state terror. Therefore, there shall be a balance between individual liberty and social needs.  

As a result, parliament is empowered to impose reasonable restrictions on Fundamental Rights, Following are the grounds for reasonable restrictions on Fundamental Rights –  

• 1. In the interest of Schedule Caste (SC's/ST's) and other weaker sections of the society including women and children.
• 2. Public order, decency and morality contempt of court, defamation.
• 3. Sovereignty and integrity of India.
• 4. Security of the state.
• 5. Friendly relations with foreign state.

Significance of Fundamental Rights 

Fundamental rights, are the rights conferred by the Part III of the Indian Constitution from Article 12 to 35. Fundamental Rights, as the name suggests these are one of the most important sources for the protection and maintenance of human dignity and integrity, which also contributes towards the development of the society as a whole.  

These are provided the status of being fundamental or elementary because of its absolute and restrictive nature, in other words, these rights are designed in such a manner that they cannot be amended, violated or interfered by any oppressive government or person, and as these are the guaranteed rights, any person can approach the Supreme court for the administration or enforcement of the rights that are violated or tampered by the other.  

The Fundamental rights are well-established with a two-point system, the first point provides that, these justiciable rights of the people that are imposed by the court processes against the oppressive actions of the government. From the Second point of view, these rights are controlled with certain restrictions and limitations on actions of the government. Where accordingly, the government cannot take any measures may it be administrative or legislative in nature, as a result of which these rights are violated.  

Classification of Fundamental Rights; 

Right to property was also considered as a fundamental right earlier, but later on it was removed from the list of these rights, was bought Article 300 - A and currently there are 6 rights that are considered as basic, are as follows;  

• Right to Equality (Article 14 to 18)
• Right to Freedom (Article 19 to 22)
• Right against Exploitation (Article 23 and 24)
• Right to Freedom of religion (Article 25 to 28)
• Cultural and Educational Right (Article 29 and 30)
• Right to Constitutional Remedy (32)

Significance of Fundamental Rights; 

Fundamental rights are basically known as the basic human rights but these are regulated by the Constitution in India, and declared as special rights for the people. With these rights being cohesive in a society, the citizens are able to comprehend the importance of all the members of the society, co-operate and adjust themselves accordingly, hence, maintaining cordial relationships with one another. The Constitution also provides for enforcement of these rights hence, they not only have a legal value but also an educational value, assisted by the citizens to protect, respect, accept and fulfil the rule of law. They also uphold the equality and dignity of the individuals, keeping in mind the unity and integrity of the nation.  

These not only ensure and guarantee the basic civil, political, social, economic rights and freedoms, but they also fulfil the important functions of safeguarding the minority communities, castes, classes and religious groups and removing the notion of discrimination of all kinds and ensuring equality amongst all. These rights are a part of the basic structure of the constitution and so they cannot be contravened, abridged or interfered by any constitutional laws, provisions or amendments, if this happens then that particular law will be declared as unconstitutional and void for being against the norms of the constitution.  

Fundamental Rights are the individual rights or the basic rights, without which the modern constitutional democracy is meaningless, and so they entrenched with the understanding that these cannot be infringed or taken away by any ordinary law or provision. Not only for the advancement of the people and expansion of the societies, but these basic rights are also needed for protecting the people from violations or excesses of the state, as the state is considered to be a biggest violator of human rights.  

Fundamental rights are always planned to protect and ensure not only the dignity of the individual but also, create some situations that can help every human being to develop their character to its comprehensive extent. Despite they enforce an undesirable duty on the state, that is, of not encroaching on individual liberty in its various dimensions, it forms the base or root for the very concept of Human rights. They are most indispensable for any accomplishment by the individual for his exhaustive intellectual, moral and spiritual status.  

The main aim for inclusion of the fundamental rights in the Indian constitution was to institute a government of laws and not of man, where under the rule of man the society would be unsystematic and unrestrained, but with the rule of law the peace and harmony will be maintained in the society, hence, assuring Justice and Equality. Fundamental Rights not only safeguard freedom but also guarantee the right to live a dignified life and personal liberty of the citizens against any incursion by the state, and henceforth, these liberties will play a crucial role in preventing or foiling the establishment of an authoritarian and undemocratic rule in the country and so, are very essential for assuring an all- around burgeoning of individuals and the country.  

*Article 12- Definition of State and concept of State Instrumentalities and agencies 

The constitution of India is the common law of the land. Justice, equality, and liberty is guaranteed by the constitution. The concept of the rule of law establishes “structure, procedures, powers, and duties of the government institution.” Similarly, the notion of limited government contains a set of fundamental rights, duties of citizens, and directive principle which shall apply for “welfare state”. The state cannot take any action which is detrimental to the fundamental rights of the people. Only the state's actions can be challenged, and the remedies will be available only against them. However, in the present era, the developments in the field of privatisation and globalisation, there are many private entities which perform works related to public importance. The limited enforcement of fundamental rights involves serious implications and asks what would happen if private entities or non-state actors violate individuals fundamental rights.  

Instruments of the state are those who perform any function through an entrusted authority. Though they are duty-bound to work in consonance with the constitution of India. In order to define instruments of state in an exhaustive manner, it shall be a strenuous task for the lawmakers, in response to this the responsibility is on the courts to extend the scope of instruments of state with relation to the constitution of India. However, the words used under the definition of article 12 are of wide amplitude, moreover are inclusive of comprehending authorities which have been formed under a statute and "functioning within the territory of India, or under the control of the government of India."  

State Action Doctrine And Functional Public Authority 

The state action doctrine commonly refers to state laws or is designed to solve a state problem but which have anticompetitive effects, and to acts by states or by private parties implementing laws or rules." The onus to perform the work with values of “equal protection and due process” is on the government as it is the only body of the institution to perform the public functions. In various cases, the US Supreme Court has expanded the scope of the state action doctrine. Mainly, the cases were related to the exploitation and discrimination with Negros or Asian race from "occupying the property in real estate."  

However, in the Indian context, the present state action needs to be expanded since the government is transferring its functions to the private entities. In the age of globalisation and privatisation, private individuals or entities deal with the liberties of the people. If the courts take limited meaning to the state action, it will become difficult for individuals to enforce their liberties against private individuals or entities.  

Definition of State: Perspective 

The fundamental rights enshrined under part III can be enforced against the state action only or the action by "other authorities” who may come within the purview of article 12 of the constitution. Most of the fundamental rights are claimed against the state and its instrumentalities and not against private bodies. An extended significance has been given to the term 'state' under article 12. Article 12 elucidates that the term 'state' occurring in article 13(2), or any other provision concerning fundamental rights, has an expansive meaning.  

Scope and Purpose 

The definition in article 12 cannot be used to interpret any provision outside part III, e.g., article 309,310,311 of the constitution. Therefore article 12 is only for the purpose of application of the provisions contained in the part III. Hence, if any body does not come within the scope of this article it could still be sued on the constitutional or non-constitutional grounds under article 226 whereas such body performs a public duty. The ambiguity arose regarding the wide interpretation of the term ‘other authorities' as if this term should be construed with respect to the test being satisfied of ‘within the territory of India' or being 'under the control of government of India.' Now it has been settled that the expression 'under the control of government of India' under article 12 does not qualify the word 'territory'; it qualifies ‘other authorities“  

Doctrine of Instrumentality 

Under article 12, the term “instrumentality or agency” has not been defined though it depends upon incessant judicial interpretation by the courts. There are certain tests which need to be satisfied before being recognised as the instrument of the state. Moreover, the term ‘includes' indicates that the definition is not exhaustive in nature. It is possible that the instrumentalities or agencies may not be a part of a government department, but when there is a violation of fundamental rights, they shall be construed as a state under the definition e.g., government companies and public undertakings.  

Test to Determine Instrumentality of the State 

The Supreme Court laid down certain tests in the case of Ajay Hasia v. Khalid Muji MANU/SC/0498/1980 to adjudge whether a body is an instrumentality of the government or not:  

• The government holds the entire share capital of the body; it goes a long way towards indicating that the body is an instrumentality of the government.
• The entire expenditure of the body is dependent or incurred on the financial assistance provided by the government, it may indicate that the governmental character has been impregnated in the body.
• Monopoly status is one of the relevant factors where it has been conferred by the state.
• State may control the said body through deep and pervasive method which surely indicates that the body is state instrumentality.
• Moreover if the body performs such functions which are of public importance considering its relevancy with governmental functions, it may be a relevant factor in determining the state instrumentality.

Though the tests have been evolved in Ajay Hasia case but these tests cannot be considered as an exhaustive list. Further, it would not be sufficient in many cases to establish an “instrument or agency of the state or a company carrying on the functions of public nature.” Meanwhile, it is tough to restrict the interpretation to a “close-ended category” of the bodies to be considered as the state within the meaning of article 12. The question of state instrumentality must be based on the merits of the cases including facts which may further include the criteria that the body is financially, administratively and functionally governed by or under the control of the government.  

The concept of instrumentality or agency may be differentiated with "other authorities" on the terms of that “other authorities” is that authority must be an authority “sui juris” to fall within the meaning of "other authorities”. In order to satisfy being an instrumentality of the state, a juridical entity may also qualify for that test and can be considered as an instrumentality of the state, but it is not necessary that an instrument of state may be considered as “other authorities”.  

The Functional And Structural Turn in the Instrumentality Or Agency Doctrine 

Structuralism, as a method of constitutional interpretation, attempts to derive constitutional rules from the relationships and interactions between various constitutional ‘structures' or institutions. The main focus of structuralism in the present scenario with respect to individual rights is on the structure of the government and its relationship with the individuals who are governed by this government. Mere regulatory control, over the body, would not suffice of being an instrument under article 12. To qualify for this domination, one must construe all three fronts: financially, functionally and administratively. However, this case has ruled out the "attribution of 'state' character” to autonomous authorities like Board of Control for Cricket in India (BCCI) which does not satisfy its onerous three-pronged standard. Though as a structural test, it has worked very well except where the judiciary has applied its discretion in interpreting the three tests as “disjunctive as opposed to conjunctive.”  

Functionalism, on the other hand, works on inductive method, developing the constitution and the policies related to it through “case by case application of the independent normative values that the law ought to promote.” But this approach suffers from the amorphous situation which remains dissected from the constitutional texts. This results in the acceptability of the structural approach rather than a functional approach.  

The seeds of “functionalism” in the Supreme Court's “interpretive approach” to Article 12 were sown by Mathew J's concurring opinion in Sukhdev Singh v. Bhagat Ram MANU/SC/0667/1975. Two conceptions of state has been evolved by him; “one, ‘a coercive machinery wielding the thunderbolt of authority', and the other, a ‘service corporation'.”Meanwhile, he preferred the second one in order to set the demarcations of article 12. According to him, a body could qualify as the 'state' even if it has not been facilitated with any financial funding from the government if its functions were of “high public importance” and closely related to, or allied with, those of the government. The ratio followed by the Justice was based on "meta- analysis" that factored in the “totality of the circumstances” before branding an authority a 'state factor'.  

*Article 13 -Judicial Review, Pre-constitutional and Post Constitutional Laws, Doctrine of Ultra Vires, Doctrine of Eclipse, Doctrine of Severability and Doctrine of Waiver 

Article 13 of the Indian Constitution is a crucial provision that deals with the fundamental rights of Indian citizens. It is an essential part of the Constitution, as it outlines the fundamental rights of the Indian people and defines the limitations of the government's power. In this article, we will discuss the history, provisions, and significance of Article 13 in detail.  

History of Article 13 of Indian Constitution 

The Indian Constitution was adopted on 26th January 1950, and it came into force on the same day. The Constitution consists of 395 articles and 12 schedules. The Constitution's primary objective is to establish a democratic and socialist society in which citizens have equal rights and opportunities. Article 13 was introduced to the Constitution during its drafting, and it has been amended several times over the years. It was initially known as the ‘Right to Property' provision, but it was later renamed to 'Laws inconsistent with or in derogation of the fundamental rights.'  

Importance of Article 13 of Indian Constitution 

The importance of Article 13 lies in its role in ensuring that laws made by the government do not infringe upon the fundamental rights of citizens. Fundamental rights are the cornerstone of a democracy and play a crucial role in ensuring that citizens are protected from arbitrary actions by the government. Article 13 provides a mechanism for citizens to challenge laws that are inconsistent with the Constitution and ensures that pre-existing laws are modified or repealed to align with the Constitution. Furthermore, Article 13 provides for the protection of the directive principles of state policy. These principles guide the government in making laws and policies that ensure the social and economic welfare of citizens. While they are not enforceable in courts, they are still essential for the overall development of  

the country. Article 13 ensures that the government can enact laws that implement these principles without infringing upon the fundamental rights of citizens.  

Provisions of Article 13 of Indian Constitution 

Article 13 is divided into four clauses, each of which outlines different provisions that are crucial to protecting the fundamental rights of Indian citizens.  

Clause 1: Laws inconsistent with or in derogation of the fundamental rights 

Clause 1 of Article 13 states that any law that is inconsistent with or in derogation of the fundamental rights mentioned in the Constitution shall be void. This provision is essential as it ensures that the government does not enact any laws that infringe upon the basic rights of citizens. If any law violates a fundamental right, it will be deemed unconstitutional and will be struck down by the courts. This clause is an essential tool for Indian citizens to challenge any laws that they believe violate their fundamental rights.  

Clause 2: Laws made before the commencement of the Constitution 

Clause 2 of Article 13 states that any law that was enacted before the commencement of the Constitution and is inconsistent with or in derogation of the fundamental rights shall be void to the extent of such inconsistency. This means that if any pre-constitutional law violates a fundamental right, it will be deemed unconstitutional and will be struck down by the courts. However, the government can amend such laws to make them consistent with the Constitution. This clause ensures that any pre-existing laws that are incompatible with the Constitution are modified or repealed, preventing any violation of fundamental rights.  

Clause 3: State laws inconsistent with or in derogation of fundamental rights 

Clause 3 of Article 13 states that any state law that is inconsistent with or in derogation of the fundamental rights shall be void. This clause is important as it prevents state governments from enacting any laws that violate fundamental rights. If any state law infringes upon fundamental rights, it will be deemed unconstitutional and will be struck down by the courts. This clause is an essential tool for Indian citizens to challenge any state laws that they believe violate their fundamental rights.  

Clause 4: Saving of laws giving effect to directive principles 

Clause 4 of Article 13 states that any law that gives effect to the directive principles of state policy shall not be deemed void on the ground that it is inconsistent with or in derogation of the fundamental rights. This clause ensures that the government can enact laws that implement the directive principles of state policy, even if they are inconsistent with or derogatory to the fundamental rights.  

Significance of Article 13 of Indian Constitution 

Article 13 is significant because it ensures that the government does not enact any laws that infringe upon the basic rights of citizens. It provides citizens with an essential tool to challenge any laws that they believe violate their fundamental rights. It also ensures that any pre-existing laws that are incompatible with the Constitution are modified or repealed. Furthermore, Article 13 is important as it protects citizens from state laws that may infringe upon their fundamental rights. It ensures that state governments cannot enact any laws that violate fundamental rights, and it provides a mechanism for citizens to challenge any such laws. This is particularly important in a country like India, where states have a significant degree of autonomy and can enact laws that are specific to their region. Another important aspect of Article 13 is that it provides for the protection of the directive principles of state policy. These principles are a set of guidelines for the government to follow while making laws and policies. They are not enforceable in courts, unlike fundamental rights, but they are still essential for the overall development of the country. Article 13 ensures that the government can enact laws that implement the directive principles of state policy, even if they are inconsistent with or derogatory to the fundamental rights. This ensures that the government can work towards the social and economic welfare of the citizens while ensuring that their fundamental rights are protected.  

Remedies in case of a breach of fundamental rights due to the enactment of a law 

In case of a breach of fundamental rights due to the enactment of a law, Article 13 of the Indian Constitution provides for several remedies to be pursued by the aggrieved party. The appropriate remedy will depend on the nature of the breach and the specific circumstances of the case.  

1. Writs  

The Constitution provides for five types of writs – Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto. These writs can be filed in the Supreme Court or High Court to protect the fundamental rights of citizens. Habeas Corpus is a writ that is used to protect personal liberty. Mandamus is used to enforce public duties. Certiorari is used to quash the decisions of inferior courts. Prohibition is used to prohibit an inferior court from continuing with a case beyond its jurisdiction. Quo Warranto is used to question the legal right of a person to hold a public office.  

2. Public Interest Litigation (PIL)  

A PIL can be filed in the High Court or Supreme Court on behalf of a group of people who are affected by the breach of fundamental rights. This is an effective remedy in cases where a large number of people are affected by the violation of fundamental rights.  

3. Damages  

In some cases, the courts may award damages to the aggrieved party to compensate for the loss suffered due to the breach of fundamental rights. This remedy is usually available in cases where the breach has caused financial or other quantifiable losses.  

4. Injunction  

The courts can issue an injunction to prevent the government from enforcing a law that violates fundamental rights. This remedy is available in cases where the law has not yet come into force, but there is a risk of infringement of fundamental rights.  

5. Declaration  

The courts can also issue a declaration that a particular law is unconstitutional and violates fundamental rights. This remedy is available in cases where the law has already come into force and is causing infringement of fundamental rights.  

Article 13 of the Indian Constitution provides several remedies to protect fundamental rights in case of a breach. These remedies include writs, public interest litigation, damages, injunction, and declaration. The appropriate remedy will depend on the specific circumstances of the case. These remedies play a crucial role in ensuring that fundamental rights are protected and upheld in India.  

Pre-constitutional laws 

During India's existence under the British reign, there were various laws and acts passed by the British government. The Regulating Act of 1773 was seen as a foundation stone laid by the East India Company to ensure its smooth functioning in the Indian Sub-Continent. Further, the Indian Independence Act marked the end of British rule in India which was given effect on 15 August 1947.  

• Regulating Act of 1773  

As already discussed above, this step was considered to be the first step by the British to manage the affairs of the East India Company in India. The governor of Bengal was designated as the governor general. Warren Hastings became the first governor-general of Bengal. The executive council of governor-general was established, which comprised of 4 members and there existed no separate legislative council.  

Supreme Court was established by the company at Fort William (Calcutta) as the apex court in 1774. The act prohibited the servants of the company from accepting bribes or indulging in any trade activities.  

•Pitt's India Act of 1784  

This act mainly draws a distinction between the commercial and political acts of the company. The court of directors was assigned the work to decide on the commercial activities and the board of control had to authorise the political affairs of the company. This act further reduced the strength of the council to 3 members. The act placed Indian Affairs directly under the control of the British Government. The Company's territory under India came to be known as “The British possession in India". Governor's council was established in Bombay and Madras.  

• Charter Act of 1813  

The Charter Act of 1813 terminated the company's monopoly which existed over the Indian trade, after the passing of this act, trade with India was open to all British subjects.  

•Charter Act of 1833  

The Governor-General of Bengal was upgraded to the post of Governor-General of India. Lord William Bentick became the first Governor-General of India. The Charter Act of 1833 was regarded as the first step towards centralisation in British India. The act took away the legislative powers of Bombay and Madras provinces and the central legislature was put in place. The Act brought an end to East India Company as a commercial body and transformed it into a purely administrative body.  

•Charter Act of 1853  

There was a separation brought in the Legislative and Executive powers of the Governor-General's council. 6 members comprised of the central legislative council, out of which 4 were appointed by the provisional government of Madras, Bombay, Bengal and Agra. It introduced open competition as a basis for recruitment of civil servants. Indian Civil Service opened for all.  

•Government of India Act 1858  

This act replaced the rule of company by the rule of crown. The powers which were embodied on the British Crown were to be exercised by the secretary of state of India. The secretary of State was further assisted by 15 members. Lord Canning became the first Viceroy of India.  

•Government of India Act 1913  

The act is popularly known as Montague-Chelmsford Reforms. The scheme of dual governance-Dyarchy was introduced. Under the Dyarchy system, the provisional subjects were divided into two parts – Reserved and Transferred. The Governor was not responsible to the legislate council over the reserved subjects. The act also introduced the Bicameral legislature at the centre. The Legislative Assembly had a strength of 140 members and the Legislative Council's strength was 60 members. The act also introduced direct elections.  

• Indian Independence Act of 1945  

This is considered to be the last act which was laid down in India under the British rule. It declared India as an independent and sovereign state. The act established responsible governments both at Centre and States. It assigned dual functions to the Constituent Assembly which were - Legislative and Constituent functions.  

Points to Ponder 

The laws which were made before the Charter Act of 1833 were known as Regulations and the ones made after it was called Acts.  

The development of the Portfolio System and also the system of budget points to the separation of powers were introduced during this period.  

In the year 1921, the railway budget was separated from the general budget.  

Lord Mayo's Idea of decentralisation of powers brought into picture the local self-government.  

In the year 1882 Lord Rippon's resolution was hailed as Magna Carta of Local Self- Governance. He came to be regarded as the “Father of local Self-governance in India"  

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