Q.

What are fundamental rights in the Indian constitution

The Indian Constitution enshrines six fundamental rights in Part III. These rights are essential for
every Indian citizen to live with dignity and freedom. They can be broadly categorized as follows:

 Right to Equality (Articles 14-18): This guarantees equal treatment before the law, prohibits
discrimination based on religion, race, caste, gender, or place of birth, and ensures equal access
to public spaces and opportunities.
 Right to Freedom (Articles 19-22): This encompasses a range of freedoms like speech,
expression, assembly, association, movement, residence, and practicing any profession. These
rights are subject to reasonable public order, security, and morality restrictions.
 Right against Exploitation (Articles 23-24): This prohibits forced labor, human trafficking, and
employing children under the age of 14.
 Right to Freedom of Religion (Articles 25-28): This guarantees the freedom of conscience
and the right to practice, preach, and propagate any religion.
 Cultural and Educational Rights (Articles 29-30): This protects the right to conserve one's
culture, language, and script. It also ensures the right of minorities to establish and manage their
educational institutions.
 Right to Constitutional Remedies (Article 32): This empowers individuals to move the
Supreme Court for the enforcement of their fundamental rights if they are violated.

Q. differentiate between ordinary and fundamental rights of the Indian constitution

Ordinary Rights

 Source: Stem from ordinary laws passed by the Parliament or State Legislatures.
 Enforceability: This can be enforced through regular courts if violated.
 Protection: Can be changed by the Legislature through an ordinary lawmaking process.

Fundamental Rights

 Source: Enshrined in Part III (Articles 12-35) of the Indian Constitution, the supreme law of the
land.
 Enforceability: Deemed "justiciable," meaning they can be enforced by the courts, particularly
the Supreme Court, through a writ petition (like Habeas Corpus) if violated.
 Protection: Enjoy greater protection. Amending them requires a more complex process involving
a Constitutional amendment, which needs a special majority in Parliament and ratification by half
of the state legislatures.

Here's an analogy: Think of ordinary rights as the rules of a club you join. The club (legislature)
can change these rules through a vote. Fundamental rights, on the other hand, are the club's
founding principles. Changing them requires a more significant effort and agreement from a wider
range of members.
 Feature Ordinary Rights Fundamental Rights

Source Ordinary Law Indian Constitution (Part III)

Supreme Court (Writ

Enforceability Regular Courts
Petitions)

Protection Can be changed through Requires Constitutional

Level ordinary law Amendment

Right to Drive (subject to

Example Right to Equality
licensing laws)

Q. all constitutional rights are not fundamental rights.

While all fundamental rights are constitutional rights in India, not all constitutional rights are
fundamental. Here's a breakdown of the key distinctions:

Constitutional Rights:

 Found throughout the Indian Constitution, outlining the rights and duties of citizens, the structure
of government, and various governance procedures.
 Examples include:
o Right to vote and participate in elections (Article 326)
o Right to hold public office (Article 308)
o Powers and limitations of the Judiciary, Legislature, and Executive (Various Articles)

Fundamental Rights:

 A specific subset of constitutional rights enshrined in Part III (Articles 12-35) of the Constitution.
 Considered the bedrock of Indian democracy, guaranteeing essential freedoms and protections for
individual dignity.
 Examples include:
o Right to equality (Article 14)
o Freedom of speech and expression (Article 19)
o Right against exploitation (Article 23)

Why the Distinction Matters:

 Higher Protection: Fundamental rights enjoy a special status. Amending them requires a more
challenging process involving a Constitutional amendment, needing a special majority in
 Parliament and approval by half of the state legislatures. Ordinary constitutional rights can be
changed through a simpler legislative process.
 Judicial Review: Fundamental rights are "justiciable," meaning individuals can approach the
Supreme Court through writ petitions if they believe these rights are violated. Ordinary
constitutional rights might not have the same level of judicial enforceability.

Analogy: Think of the Constitution as a house. The fundamental rights are the strong foundation
upon which the entire structure rests. They are essential for a stable and just society. Ordinary
constitutional rights, on the other hand, are like the internal walls and rooms of the house. They
are important for the functioning of the house but can be modified without compromising the
entire structure.

Examples:

 The right to vote is a crucial democratic right enshrined in the Constitution (Article 326). However,
it's not a fundamental right. The legislature can set regulations around voting eligibility and
procedures.
 The right to equality (Article 14), a fundamental right, ensures everyone is treated equally before
the law. This is a much more fundamental principle for a just society.

Q. explain whether fundamental rights can be waived off by the state or not.

In India, the question of whether fundamental rights can be waived off by the state or an individual
is a complex one with ongoing debate.

Arguments Against Waiver:

 Higher Principles: Fundamental rights are seen as essential for a democratic society and are
based on principles enshrined in the Constitution's Preamble. They are considered inalienable,
meaning they cannot be surrendered. Several court rulings, including Basheshwar Nath v. CIT
(1954) and State of Bombay v. Bombay Adivasi Seva Sangh (1951), have upheld this view, stating
that fundamental rights cannot be switched away.
 Public Policy: Fundamental rights are considered matters of public policy, designed to protect
the well-being of all citizens. The doctrine of waiver, which allows individuals to voluntarily give up
a right, is not seen as applicable in this context.
 Protecting Vulnerable Individuals: The waiver could be misused by the state to exploit
vulnerable individuals who might not fully understand the implications of giving up their rights.

Arguments for Waiver (Limited Scope):

 Right Not to Exercise a Right: Some argue that the right to enforce a fundamental right also
includes the right not to exercise it. For example, the right to carry on a business (Article 19(1)(g))
also includes the right to not conduct one. This view is supported by judgments like Excel Wear v
Union of India (2013).
 Informed Consent: In specific situations, with full knowledge and consent, an individual might
waive certain aspects of a fundamental right. However, this is a nuanced argument, and the courts
would likely scrutinize such situations to prevent exploitation.

Current Status: There is no definitive answer on whether fundamental rights can be entirely
waived off. The courts have primarily focused on specific situations and haven't provided a clear,
overarching principle.

Conclusion: While the concept of waiver for fundamental rights remains under debate, the Indian
legal system leans towards protecting these rights as inalienable and essential for a just society.
Any potential waiver would likely be subject to strict judicial scrutiny to ensure it's done knowingly
and voluntarily, without compromising the core principles behind these fundamental rights.

Q. explain whether fundamental rights can be amended or not

In India, fundamental rights enshrined in Part III of the Constitution can be amended, but with
significant limitations.

Amending Fundamental Rights - A Yes, But With Conditions

 Landmark Case - Kesavananda Bharati (1973): This landmark Supreme Court judgment
established the concept of the "basic structure doctrine." It clarified that while Parliament has the
power to amend the Constitution, it cannot alter its basic structure, which includes fundamental
rights.

Why Amendable with Limitations?

 Evolution of Society: The needs and challenges of society can evolve. Amending fundamental
rights allows the Constitution to adapt to changing circumstances.
 Balancing Individual Rights and Public Interest: Sometimes, reasonable restrictions on
fundamental rights might be necessary in the larger public interest, like national security or public
order. Amendments can facilitate this balancing act.

The "Basic Structure Doctrine" - The Safeguard

 Undefined but Essential: The basic structure doctrine itself is not explicitly defined in the
Constitution. However, the Supreme Court has interpreted it to include core principles like
federalism, secularism, democratic republic, judicial review, and fundamental rights.
 Judicial Review as a Check: The judiciary plays a crucial role in ensuring amendments don't
violate the basic structure. The court can strike down amendments deemed excessive or
destructive to fundamental rights.

Examples of Amendments Upheld and Struck Down

 Upheld Amendments: The 44th Amendment (1978) introducing the right to property as a
fundamental right was supported. The court saw it as an extension of existing rights, not a
violation of the basic structure.
 Struck Down Amendments: The court struck down the Golak Nath case (1967) judgment, which
had earlier declared fundamental rights to be unamendable. This paved the way for future
amendments within the boundaries of the basic structure doctrine.

Conclusion: The ability to amend fundamental rights allows the Indian Constitution to remain
relevant and adaptable. However, the "basic structure doctrine" ensures these rights are not
fundamentally undermined. The judiciary acts as a crucial safeguard by reviewing amendments
and striking down those deemed excessive. This delicate balance between amending progress and
protecting core rights is a hallmark of the Indian Constitution.

Q. explain whether fundamental rights be suspended or not. if so, in which situations?

In India, fundamental rights can be suspended under certain specific circumstances, but with
significant limitations.

 Emergency Provisions (Articles 352-360): The Indian Constitution allows the President to
declare a national emergency under three conditions: war, external threat, or internal disturbance.
This triggers the suspension of certain fundamental rights.
 Articles Impacted: Article 359 clarifies that during a national emergency, only specific rights
under Article 19 (freedoms of speech, assembly, movement, etc.) can be suspended. Notably, the
right to life and liberty under Article 21 and the right to equality under Article 20 remain protected
even during emergencies.

Judicial Oversight and Habeas Corpus:

 Limits on Suspension: The judiciary plays a crucial role in ensuring the suspension of rights is
proportionate and adheres to due process. The courts can review the extent of the suspension and
question its validity.
 Habeas Corpus: This writ empowers individuals to challenge their detention during an
emergency. The court can order their release if the detention is deemed arbitrary or illegal.

Landmark Cases:

 A.K. Gopalan v. State of Madras (1950): This case established the right to life and personal
liberty under Article 21 as a fundamental right, even during emergencies. It also introduced the
concept of "procedure established by law" to ensure fair treatment during detention.

Conclusion: The suspension of fundamental rights is a delicate balance between national security
concerns and individual liberties. While emergencies necessitate certain restrictions, the
Constitution and the judiciary ensure these suspensions are temporary, limited in scope, and
 subject to judicial oversight. The core fundamental rights, particularly the right to life and liberty,
remain protected even during these exceptional circumstances.

Q. What is a state under Article 12 of the Indian constitution?

Article 12 of the Indian Constitution provides a broad definition of the term "State" within the
context of Part III (Fundamental Rights) of the Constitution.

The Scope of "State" under Article 12: Article 12 defines "State" to include the following
entities unless the context otherwise requires:

1. The Government and Parliament of India: This refers to the Union Executive headed by the
President and the Union Legislature consisting of the President and both houses of Parliament (Lok
Sabha and Rajya Sabha).
2. The Government and Legislature of Each State: This includes the individual state
governments led by the Chief Minister and the state legislatures with their Vidhan Sabha
(Legislative Assembly) and Vidhan Parishad (Legislative Council) in bicameral states.
3. All Local or Other Authorities Within the Territory of India: This encompasses various
administrative bodies functioning at the local level, such as Municipal Corporations, Panchayats,
and District Authorities. These bodies operate within the geographical boundaries of India and
exercise a degree of power delegated by the state or central government.
4. All Local or Other Authorities Under the Control of the Government of India: This
category includes bodies established by the Central Government, even if they function outside the
geographical territory of India. Examples include public sector undertakings, central universities,
and autonomous bodies created by the Central Government.

Why a Broad Definition?

 Ensuring Accountability: A broad definition of "State" ensures that any entity exercising
governmental power, whether central, state, or local, can be held accountable for violating
fundamental rights. Individuals can seek legal recourse against these bodies if their fundamental
rights are infringed upon.
 Protecting Individuals: By including various authorities under the ambit of the "State," the
Constitution aims to provide a wider net of protection for individual fundamental rights. No matter
which governmental entity violates these rights, individuals have the right to legal remedy.

Examples:

 If a local municipality denies a street vendor a permit based on religion, violating the right to
equality (Article 14), the vendor can challenge this action as the municipality falls under the
definition of "State" in Article 12.
 If a central government agency like the Central Bureau of Investigation (CBI) conducts an illegal
arrest, it can be considered a violation by the "State" under Article 12, as the CBI is under the
control of the Central Government.
 In essence, Article 12 casts a wide net to ensure that all entities wielding governmental power, be
it central, state, or local, are subject to the fundamental rights enshrined in the Constitution. This
broad scope empowers individuals to seek legal recourse if their fundamental rights are violated
by any such authority.

Q. explain the term 'authority' under Article 12.

The term "authority" under Article 12 of the Indian Constitution has been a subject of
interpretation and judicial debate. While the article itself doesn't provide an explicit definition,
court rulings have shaped the understanding of which entities qualify as "authorities" liable for the
protection of fundamental rights. Here's a breakdown of the key points and relevant case laws:

The Debate Around "Other Authorities": Article 12 (1) defines "State" to include "(...) all local
or other authorities within the territory of India." This seemingly straightforward phrase, "other
authorities," has sparked discussions about which entities fall under its ambit.

Early Interpretation and Restrictive View:

 University of Madras v. Shanta Bai (1950): This Madras High Court case applied the principle
of "ejusdem generis" (of the same kind) to interpret "other authorities." It suggested that only
entities similar to the Government of India, State Governments, and Local Authorities could be
considered "authorities" under Article 12.

Shifting Landscape and Broader Interpretation:

 Ujjammabai v. State of U.P. (1961): This landmark Supreme Court judgment challenged the
restrictive view. It rejected the "ejusdem generis" principle, stating that the entities listed in Article
12 have no inherent common characteristic. The court opened the door for a broader
interpretation of "other authorities" based on their function.

Focus on Function and Control: Following Ujjammabai, subsequent judgments have focused on
two key factors to determine if an entity qualifies as an "authority" under Article 12:

1. Function: Does the entity exercise a degree of governmental power or perform public functions?
2. Control: Is the entity controlled by the Central or State Government, either directly or indirectly?

Examples of "Authorities" under Article 12:

 Public Sector Undertakings (PSUs): Landmark cases like Rural Electrification Corporation Ltd.
v. (Muzaffarnagar Zila Karmachari Sahakari Bank) (1995) have established that PSUs with
significant government control and performing public functions can be considered "authorities"
under Article 12.
 Universities: While private universities might not qualify, some court rulings suggest that
universities heavily funded and controlled by the government could be considered "authorities."
 Not all Entities Qualify:

 Private Bodies: Private entities, businesses, or associations generally wouldn't be considered

"authorities" under Article 12 unless they are acting in concert with the government or exercising
delegated governmental power.

Q. explain ejusdem generis

Ejusdem generis is a Latin phrase meaning "of the same kind." It's a principle of legal
interpretation used in courts to understand the meaning of a list of items in a statute or legal
document.

Reasons for Using Ejusdem Generis:

 Legislative Intent: It's assumed the legislature intended the general term to encompass things
with similar characteristics to the specific items listed.
 Clarity and Consistency: Ejusdem generis promotes a clear and consistent reading of the law,
avoiding ambiguity about what falls under the general term.

Example: A law prohibits bringing "dangerous weapons" like knives, guns, or other dangerous
weapons into a building. Ejusdem generis suggests "other dangerous weapons" would likely
include items similar to knives and guns, such as swords, clubs, or explosives.

Judicial Decisions and Limitations:

 Not a Rigid Rule: While a valuable tool, ejusdem generis is not a rigid rule. Judges can consider
other factors like the purpose of the law and its overall context when interpreting a list.
 Overruled by Legislative Intent: If clear legislative intent exists to include items outside the
scope suggested by ejusdem generis, the court might disregard the principle.

Examples of Judicial Application:

 University of Madras v. Shanta Bai (1950): This Indian case applied ejusdem generis to
interpret "other authorities" under Article 12 of the Constitution. However, later cases like
Ujjammabai v. State of U.P. (1961) moved away from this strict application.

Conclusion: Ejusdem generis is a valuable principle for interpreting lists in legal documents.
However, it's important to understand its limitations and the role of judicial discretion in
considering the broader context and legislative intent.

Q. explain the case of Rajasthan State Electricity Board v. Mohan Lal & Ors. 1967.

The case of Rajasthan State Electricity Board v. Mohan Lal & Ors. (1967) is a landmark judgment
by the Supreme Court of India that established a crucial test for determining whether a body
qualifies as a "State" under Article 12 of the Indian Constitution.
 Background:

 The Rajasthan State Electricity Board (RSEB) was a statutory body created under the Electricity
Supply Act.
 Mohan Lal, a respondent in the case, was an employee of the RSEB who was denied promotion.
 He challenged the RSEB's decision in the High Court, arguing that it violated his fundamental
rights under Articles 14 (Equality) and 16 (Equality of opportunity in public employment) of the
Constitution.

Issue: The central question before the Supreme Court was whether the RSEB could be considered
a "State" under Article 12. If so, it would be subject to the fundamental rights enshrined in Part III
of the Constitution.

The Board's Argument: The RSEB argued that it was an autonomous body, distinct from the
government, and therefore not a "State" under Article 12.

The Court's Decision: The Supreme Court rejected the RSEB's argument and laid down a three-
pronged test to determine if a body falls under the ambit of "State" under Article 12:

1. Power to Make Laws: Does the body have the power to make rules or regulations that have
statutory effect?
2. Sovereign Functions: Does the body perform functions traditionally associated with the State,
such as supplying electricity in this case?
3. Financial Control: Is the body financed by the government or does it have significant
government control over its finances?

Applying the Test to RSEB: The Court found that the RSEB satisfied all three criteria:

 It could make rules under the Electricity Supply Act.

 Supplying electricity was a function traditionally associated with the government.
 The RSEB received financial support from the government.

Judicial Decision: Therefore, the Supreme Court held that the RSEB was a "State" under Article
12. This meant that Mohan Lal could challenge the RSEB's decision because it violated his
fundamental rights.

Significance: This case established a broad interpretation of "State" under Article 12. It ensured
that entities exercising governmental functions and enjoying substantial government control
would be accountable for upholding fundamental rights. The judgment paved the way for
individuals to seek legal recourse against such bodies for violations of their fundamental rights.

Q. R.D. Shetty v. International Airport Authority of India (1979): Expanding the

Definition of "State" under Article 12
 The case of R.D. Shetty v. International Airport Authority of India (1979) is a landmark judgment
by the Supreme Court of India that broadened the definition of "State" under Article 12 of the
Constitution.

Background:

 R.D. Shetty, the appellant, applied for a tender to operate restaurants and snack bars at the
Bombay International Airport.
 The tender was awarded to another party, and Shetty challenged this decision in court, arguing
that the selection process was arbitrary and violated his right to equality under Article 14 of the
Constitution.

Central Question: The key issue in this case revolved around whether the International Airport
Authority of India (IAAI) could be considered a "State" under Article 12. If so, Shetty could claim
protection of his fundamental right against the IAAI's actions.

Previous Interpretations: The definition of "State" under Article 12 had already been expanded
by previous judgments like Rajasthan State Electricity Board v. Mohan Lal (1967). However, there
was no settled legal framework for determining if a specific entity qualified as a "State."

The 5-Point Test: In this case, the Supreme Court established a five-point test to determine if a
body can be considered a "State" under Article 12:

1. Entire Share Capital Owned or Managed by the Government: Is the entity's entire share
capital owned or controlled by the government, either directly or through its nominees?
2. Carries on Activities for the Government: Does the entity carry on functions traditionally
associated with the government or undertake activities in pursuance of government policies?
3. Financial Aid from the Government: Does the entity receive substantial financial aid from the
government, making it financially dependent on the government?
4. Controls Functioning of a Department: Does the entity function in a way that effectively
controls the functioning of a department or an instrumentality of the government?
5. Performs Sovereign Functions: Does the entity perform functions that are considered
sovereign functions, traditionally exercised by the State? (This point was added in later judgments
based on this case)

Applying the Test to IAAI: The Court found that the IAAI satisfied several of these criteria:

 The government-owned its entire share capital.

 It managed airports, a function traditionally undertaken by the government.
 It received significant financial aid from the government.

Judicial Decision: The Supreme Court held that the IAAI qualified as a "State" under Article 12.
This meant R.D. Shetty could challenge the arbitrary selection process employed by the IAAI and
seek protection for his fundamental right to equality.
 Significance: This case established a clear framework for determining if an entity qualifies as a
"State" under Article 12. It expanded the scope of the "State" to include various bodies with
significant government control and performing functions traditionally associated with the
government. This ensures that individuals can seek legal recourse against such bodies for
violations of their fundamental rights.

Additional Notes: It's important to remember that all five points in the test might not be
satisfied in every case. Courts weigh the relevant factors to determine if an entity falls under the
ambit of "State" under Article 12.

Q. Ajay Hasia v. Khalid Mujib (1981): Deep and Pervasive Control for "State"

The case of Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. (1981) is a significant Supreme
Court judgment that further clarified the concept of "State" under Article 12 of the Indian
Constitution. It was built upon the earlier landmark case of R.D. Shetty v. International Airport
Authority of India (1979).

Background:

 Ajay Hasia and others, the petitioners, challenged the selection process for admission to Aligarh
Muslim University (AMU), a minority educational institution.
 They argued that the selection process was arbitrary and violated their fundamental right to
equality under Article 14 of the Constitution.

Central Question: The crucial question was whether Aligarh Muslim University could be
considered a "State" under Article 12. If so, the petitioners could claim protection of their
fundamental rights against AMU's actions.

Building on R.D. Shetty Test: The Supreme Court, in its judgment, acknowledged the five-point
test established in R.D. Shetty for determining if a body qualifies as a "State." However, the court
went further and introduced the concept of "deep and pervasive control."

Deep and Pervasive Control: This concept emphasizes the nature and extent of government
control over an entity. While factors like government funding and ownership might be present, a
crucial aspect is the level of control the government exercises over the entity's day-to-day
functioning and decision-making processes.

Applying the Test to AMU: In Ajay Hasia's case, the court found that while AMU received some
financial aid from the government, the government's control over its day-to-day functioning wasn't
"deep and pervasive." AMU had a significant degree of autonomy in its management and decision-
making processes.

Judicial Decision: Therefore, the Supreme Court held that AMU did not qualify as a "State" under
Article 12 in this specific instance. This meant the court couldn't directly enforce fundamental
 rights against AMU's selection process. However, the court did offer broader guidelines for
educational institutions to ensure fair and non-discriminatory practices.

Significance: This case refined the concept of "State" by introducing the "deep and pervasive
control" factor. It highlighted that simply receiving government funding or having government
ownership wouldn't automatically classify an entity as a "State". The nature and extent of
government control over the entity's functioning are crucial for this determination.

Important to Note:

 The Ajay Hasia case doesn't negate the five-point test established in R.D. Shetty. Both concepts
work together to determine if an entity falls under the ambit of "State" under Article 12.
 The specific facts and circumstances of each case are crucial. The court considers the level of
government control, the nature of the entity's functions, and its financial dependence on the
government to make a final determination.

Q. Do you agree the term 'authority' under Article 12 has been given a wide
interpretation? explain in detail

Yes, I agree that the term "authority" under Article 12 of the Indian Constitution has been given a
wide interpretation by the judiciary over time. Here's a breakdown of the reasons and key judicial
decisions supporting this view:

Early Narrow Interpretation and Shift:

 Initially, some courts applied a restrictive view based on the principle of "ejusdem generis" (of the
same kind). This suggested that "other authorities" should be similar to the entities explicitly
mentioned in Article 12 (government, legislature, local authorities).
 However, landmark cases like Ujjammabai v. State of U.P. (1961) challenged this narrow approach.
The court emphasized the function and control exercised by an entity, not just its similarity to
listed entities.

Focus on Function and Control: Following Ujjammabai, subsequent judgments have

established a two-pronged test to determine if an entity qualifies as an "authority" under Article
12:

1. Function: Does the entity exercise a degree of governmental power or perform public functions?
2. Control: Is the entity controlled by the Central or State Government, either directly or indirectly?

Examples of Wide Interpretation:

 Public Sector Undertakings (PSUs): Cases like Rural Electrification Corporation Ltd.
established that PSUs with significant government control and performing public functions can be
"authorities."
 Universities: While private universities might not qualify, some court rulings suggest that
universities heavily funded and controlled by the government could be considered "authorities."

Benefits of Wide Interpretation:

 Expanding Accountability: By including entities exercising significant governmental power, the

scope of accountability for potential violations of fundamental rights expands. Individuals have
recourse against a wider range of bodies.
 Protecting Rights: A broad interpretation strengthens the protection of fundamental rights for
individuals interacting with various entities wielding governmental power.

Limitations and Considerations:

 Not All Entities: Private bodies or businesses wouldn't be considered "authorities" unless acting
in concert with the government or exercising delegated governmental power.
 Potential for Overreach: A very broad interpretation could potentially encompass entities with
minimal governmental functions or control.

Conclusion: Judicial interpretation has undoubtedly broadened the definition of "authority" under
Article 12. This wider interpretation serves to hold entities exercising governmental power
accountable for upholding fundamental rights. It's important to strike a balance between ensuring
accountability and avoiding an overly expansive interpretation.

Q. Under Article 12, the state includes the executive, legislature and the judiciary. but
do the functions of the judiciary come under the ambit of Article 12?

No, the judiciary itself is not generally considered a "State" under Article 12 of the Indian
Constitution, at least when it exercises its core judicial functions.

Judiciary as a Separate Organ: The Indian Constitution establishes the judiciary as an

independent organ, distinct from the legislature and executive (the executive being the "State"
under Article 12). This principle of separation of powers suggests the judiciary wouldn't be subject
to itself under Article 12.

Judicial Precedent:

 Rati Lal v. State of Bombay (1954): This early judgment held that the judiciary is not a "State"
for Article 12.
 Rupa Ashok Hurra v. Ashok Hurra (2002): The Supreme Court reaffirmed that judicial
proceedings cannot be said to violate fundamental rights, implying the judiciary itself isn't a
"State" when exercising core judicial functions.

Core Judicial Functions vs. Non-Judicial Functions: The focus lies on the specific function
being exercised by the judiciary.
 Core Judicial Functions (Not a State): When adjudicating disputes, interpreting the law, and
upholding fundamental rights, the judiciary is unlikely to be considered a "State" under Article 12.
 Non-Judicial Functions (Potential State Status): There's a possibility that if the judiciary
engages in administrative or financial functions beyond its core judicial role, it might be
considered a "State" in those specific contexts. However, this is not a settled legal position.

Limited Scope for Judiciary as State: Cases like A.R. Antulay v. R.S. Nayak (1988) and N.S.
Mirajkar v/s State of Maharashtra (1997) has hinted at the possibility of the judiciary being
considered a "State" under Article 12 for its non-judicial functions. However, there's no definitive
judicial pronouncement on this aspect.

Conclusion: The Indian legal system leans towards protecting the judiciary's independence and
separation of powers. This suggests that the judiciary when exercising its core judicial function,
wouldn't be a "State" under Article 12. The concept of the judiciary's non-judicial functions
remains somewhat open-ended, with courts potentially considering them on a case-by-case basis.

Q. What is the principle of deep and pervasive control under Article 12?

The principle of "deep and pervasive control" is a crucial factor used by the Indian courts to
determine whether an entity qualifies as a "State" under Article 12 of the Constitution. It goes
beyond simply receiving government funding or having government ownership.

Traditional Markers of "State"

Before the introduction of deep and pervasive control, courts relied on factors like:

 Government Ownership: Whether the entity's entire share capital was owned or controlled by
the government.
 Government Funding: Whether the entity received substantial financial aid from the
government.
 Function: Whether the entity performed functions traditionally associated with the government.

Landmark Case and the Shift: The concept of deep and pervasive control emerged in the
Supreme Court case of Ajay Hasia v. Khalid Mujib (1981).

Understanding Deep and Pervasive Control: This principle emphasizes the nature and extent
of government control over an entity. While traditional markers like funding and ownership might
be present, deep and pervasive control focuses on:

 Level of Control: How deeply involved is the government in the entity's day-to-day functioning
and decision-making processes?
 Autonomy: Does the entity have significant autonomy in managing its affairs or is it heavily
reliant on government directives?
 Applying the Principle:

 Ajay Hasia Case Example: In this case, Aligarh Muslim University (AMU) received some
government funding, but the court found that the government's control over its day-to-day
functioning wasn't "deep and pervasive." AMU had a significant degree of autonomy in its
management. Therefore, it wasn't considered a "State" under Article 12.

Significance and Current Status:

 The deep and pervasive control principle complements the traditional markers of the "State." It
ensures that entities with significant government influence, even with some degree of autonomy,
are held accountable for upholding fundamental rights.
 Courts consider both deep and pervasive control along with other factors in each case.
 The concept continues to be relevant in contemporary judgments when courts are called upon to
decide whether an entity falls under the ambit of "State" under Article 12.

Additional Points:

 Deep and pervasive control doesn't mean complete government control. Some level of autonomy
might exist for an entity to be considered a "State."
 The specific facts and circumstances of each case are crucial. Courts analyze the level of control,
the entity's functions, and its financial dependence on the government to make a final
determination.

Q. explain article 13

Article 13 of the Indian Constitution deals with protecting fundamental rights by ensuring existing
and future laws don't violate them. Here's a breakdown:

Main Function:

 Protects fundamental rights enshrined in Part III of the Constitution.

 Strikes down any existing or future laws that contradict these fundamental rights.

Two parts of Article 13:

 Article 13(1): Deals with existing laws before the Constitution.

o Any law in place before the Constitution is void (inoperable) if it clashes with fundamental rights.
o Only the conflicting part of the law becomes void, not the entire law.
 Article 13(2): Deals with future laws enacted after the Constitution.
o Any law passed after the Constitution is void if it violates fundamental rights.

The doctrine of Eclipse:

 Applies to Article 13(1) only.

 Says pre-Constitution laws contradicting fundamental rights become dormant, not dead.
 These laws can be revived by the state if amended to comply with fundamental rights.

Overall, Article 13 acts as a shield for fundamental rights, ensuring no law can take them away.

Q. explain what is judicial review according to article 13 and its origin

Article 13 lays the foundation for judicial review in India, but it doesn't explicitly mention the term.
Judicial review is the power of the judiciary to examine laws and actions of the legislature and
executive to ensure they conform to the Constitution. Here's how Article 13 contributes:

Article 13 and the Basis of Judicial Review:

 Voiding Laws: By declaring any law violating fundamental rights "void," Article 13 empowers the
judiciary to invalidate such laws. This invalidation is the essence of judicial review.

Landmark Cases Establishing Judicial Review:

 Keshavan Madhava Menon v. the State Of Bombay (1951): This case solidified judicial
review. It established that laws violating fundamental rights are void ab initio (from the
beginning), not just prospectively (from the date of judgment).

Other Articles Supporting Judicial Review:

 Article 32: Grants the right to constitutional remedies through writs like Habeas Corpus, allowing
individuals to challenge fundamental rights violations in the Supreme Court.
 Article 226: Empowers High Courts with similar powers as the Supreme Court under Article 32.

Origin of Judicial Review in India:

 No direct mention: The Indian Constitution doesn't explicitly state judicial review.
 Borrowed Concept: The concept is inspired by the US Constitution and common law principles.

Examples of Judicial Review based on Article 13:

 Right to Equality: Striking down discriminatory laws based on caste, religion, etc.
 Freedom of Speech: Invalidating laws imposing unreasonable restrictions on free expression.

Conclusion: Article 13, along with other provisions, empowers the judiciary to conduct judicial
review. This ensures that laws comply with the Constitution and protect fundamental rights.
Landmark cases like Keshavan Madhava Menon further solidified this power. While not explicitly
mentioned, judicial review is a vital principle in Indian democracy, safeguarding the Constitution's
supremacy.
 Q. judicial review is based on: the theory of limited government and the supremacy of
the constitution. explain in detail

Judicial review rests on two fundamental principles: limited government and the supremacy of the
constitution. Let's delve deeper into how these principles work together:

Limited Government:

 This principle dictates that the government's power is not absolute. It operates within the
boundaries set by the Constitution, a document outlining its powers and limitations.
 The Constitution acts as a blueprint, defining the government's structure, the rights of citizens,
and how laws are made.

Supremacy of the Constitution:

 This principle establishes the constitution as the highest law of the land. All other laws, actions,
and decisions made by the government must comply with its provisions.
 If a law contradicts the Constitution, it's considered invalid.

Judicial Review: The Enforcer

 Judicial review empowers the judiciary to act as the guardian of the Constitution.
 Courts can review laws passed by the legislature and actions taken by the executive branch to
ensure they conform to the Constitution's framework.
 If a law or action is found to violate the Constitution, the judiciary can declare it unconstitutional,
essentially nullifying it.

How These Principles Work Together:

 Limited government prevents the concentration of power and safeguards individual rights.
 The supremacy of the constitution ensures that laws passed by the government don't undermine
those limitations or rights.
 Judicial review acts as the enforcement mechanism, holding the government accountable and
ensuring it adheres to the Constitution's limitations.

Example: Balancing Rights and Regulations

 Imagine a law passed by the legislature restricting freedom of speech to maintain public order.
 Using judicial review, the courts might evaluate if the law goes beyond what's necessary for
maintaining order.
 If the law is deemed overly restrictive, infringing on the right to free speech more than necessary,
the court could declare it unconstitutional.

Benefits of Judicial Review:

 Prevents government overreach: Judicial review ensures the government doesn't take over power
beyond its constitutional mandate.
 Protects fundamental rights: Courts can strike down laws that infringe on citizens' fundamental
rights enshrined in the Constitution.
 Maintains checks and balances: Judicial review serves as a check on the power of the legislature
and executive, promoting a healthy balance between the branches of government.

Limitations of Judicial Review:

 Judicial activism: Critics argue that judges might inject their personal beliefs while interpreting the
Constitution.
 Gridlock: Judicial review can sometimes lead to a tug-of-war between the judiciary and the other
branches of government.

Conclusion: Judicial review, grounded in the principles of limited government and the supremacy
of the Constitution, plays a critical role in upholding the rule of law and safeguarding the rights
enshrined in the Constitution. It ensures a balance of power and prevents any branch of
government from becoming absolute.

Q. explain the concept of judicial review, its nature, and scope

Judicial review is a cornerstone of a constitutional democracy. It empowers the judiciary to

examine the actions of the legislature and executive to ensure they conform to the supreme law of
the land - the Constitution. Here's a breakdown of its concept, nature, and scope:

Concept:

 Judicial review grants the court the authority to review laws passed by the legislature and actions
taken by the executive branch.
 This review process determines whether these laws and actions align with the provisions of the
Constitution.
 If a law or action is found to be incompatible with the Constitution, the court can declare it
"unconstitutional," essentially nullifying it.

Nature:

 Non-majoritarian: Judicial review acts as a check on the power of the majority. Even if a law is
popular, the courts can strike it down if it violates the Constitution.
 Indirect power: Courts don't directly make laws or govern. Their power lies in interpreting the
Constitution and ensuring adherence to it.
 Political neutrality: Ideally, judicial review is exercised objectively, without political bias. Judges
are expected to interpret the Constitution based on its text, history, and precedent.

Scope:
 Constitutional questions: Judicial review primarily focuses on questions of constitutionality. It
determines if a law or action violates the fundamental principles enshrined in the document.
 Fundamental rights: Courts play a crucial role in protecting fundamental rights guaranteed by
the Constitution. They can strike down laws that infringe on these rights without justification.
 Limits of power: Judicial review is not without limitations. Courts generally avoid substituting
their judgment for that of the legislature or executive in policy matters. Additionally, some
constitutions explicitly limit the scope of judicial review.

Examples of Judicial Review in Action:

 Right to Equality: A law discriminating against a particular religious community is struck down
as violating the right to equality.
 Freedom of Speech: A law imposing unreasonable restrictions on free expression is declared
unconstitutional.
 Executive Overreach: If the executive branch takes an action exceeding its constitutional
authority, the court can intervene.

Significance of Judicial Review:

 Upholds the Rule of Law: Judicial review ensures that laws and government actions comply with
the Constitution, fostering a system governed by established rules.
 Protects Individual Rights: The power to strike down unconstitutional laws safeguards
fundamental rights from legislative or executive overreach.
 Maintains Checks and Balances: Judicial review prevents any branch of government from
becoming absolute, promoting a healthy balance of power.

Conclusion: Judicial review is a powerful tool that safeguards the Constitution and protects
individual rights. It is not without limitations, but it plays a vital role in ensuring a just and
balanced system of governance. By holding the government accountable to the Constitution,
judicial review strengthens the foundation of a constitutional democracy.

Q. explain how the A.K. Gopalan case and the Keshavanand Bharti case are related to
judicial review

The cases of A.K. Gopalan (1950) and Kesavananda Bharati (1973) are landmark cases in Indian
judicial history, both significantly impacting the concept of judicial review in India.

A.K. Gopalan v. State of Madras (1950):

 Context: This case challenged the Preventive Detention Act, which allowed authorities to detain
individuals without trial for security reasons.
 Judicial Review: The court exercised judicial review by examining the act's compatibility with the
fundamental right to life and liberty (Article 21).
 Narrow Interpretation: The court upheld the act, taking a narrow view of judicial review. It ruled
that fundamental rights weren't absolute and could be restricted by laws with proper procedure.
This limited the scope of judicial review in protecting fundamental rights.

Kesavananda Bharati Sadasivan v. State of Kerala (1973):

 Context: This case involved a challenge to a Kerala land reform act amended by Parliament
through the 24th amendment.
 Expanding Judicial Review: The court significantly expanded the scope of judicial review by
establishing the "Basic Structure Doctrine." This doctrine states that Parliament's power to amend
the Constitution doesn't extend to altering its fundamental character.
 Landmark Shift: Kesavananda Bharati marked a turning point. The court asserted its power to
review amendments and protect the Constitution's basic structure. This strengthened judicial
review as a tool to safeguard the Constitution's core principles.

Relationship to Judicial Review:

 A.K. Gopalan: This case reflects a cautious approach to judicial review. While upholding its power
to review laws, the court limited its ability to protect fundamental rights.
 Kesavananda Bharati: This case represents a bolder approach. It established judicial review as a
powerful tool to defend the Constitution's core principles from erosion through amendments.

In essence:

 A.K. Gopalan initially restricted judicial review in protecting fundamental rights.

 Kesavananda Bharati significantly expanded its role in safeguarding the constitution's basic
structure.

Q. explain the doctrine of severability

The doctrine of severability is a legal principle that allows courts to strike down only a portion of a
law found to be unconstitutional while leaving the rest of the law intact. This ensures that the
legislative intent behind the law is preserved as much as possible, while still upholding the
Constitution.

Concept of Severability:

 A court can apply the doctrine of severability when a law contains provisions that are independent
of each other.
 If one provision is deemed unconstitutional, the court can sever it from the rest of the law,
allowing the remaining provisions to remain enforceable.

Judicial Decisions Upholding Severability:

 A. K. Gopalan v. State of Madras (1950): In this Indian case, the court applied severability
while examining the Preventive Detention Act. It declared one section of the Act unconstitutional
but allowed the rest to remain in effect, highlighting that the remaining provisions could function
independently.

Importance of Severability:

 Preserves Legislative Intent: By severing only the unconstitutional part, the doctrine respects
the legislature's overall purpose for enacting the law.
 Promotes Judicial Efficiency: Courts avoid the need to strike down the entire law, allowing the
valid portions to function.
 Minimizes Disruption: Severability ensures a smoother legal transition, as only the problematic
part of the law is nullified.

Limitations of Severability:

 Interdependence of Provisions: If the unconstitutional provision is intertwined with the rest of

the law, severing it might render the entire law meaningless. In such cases, the whole law might
be struck down.
 Legislative Intent: If severing the unconstitutional part significantly alters the intended purpose
of the law, the court might invalidate the entire law to respect the legislature's intent.

Conclusion: The doctrine of severability is a valuable tool for courts to balance upholding the
Constitution with preserving the intent behind legislation. Judicial decisions like those mentioned
above demonstrate their application in ensuring a nuanced approach to legal challenges.

Q. explain the doctrine of eclipse

The doctrine of eclipse is a legal principle applied in India that deals with the relationship between
pre-existing laws and fundamental rights enshrined in the Constitution (Part III).

The doctrine of Eclipse Explained:

 Pre-Constitution Laws: This doctrine applies to laws that existed before the Indian Constitution
came into effect in 1950.
 Fundamental Rights Conflict: If a pre-existing law clashes with fundamental rights guaranteed
by the Constitution, the law is not entirely struck down.
 Dormant State: Instead, the law enters a "dormant state" and becomes unenforceable as long as
the conflict with fundamental rights persists.
 Revival through Amendment: This "eclipse" can be lifted if the Constitution is amended to
remove the conflict between the law and fundamental rights. The law then becomes enforceable
again.

Landmark Case: Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955)

 This case is considered the foundation for the doctrine of eclipse in India.
 Context: Bhikaji Narain Dhakras challenged the validity of a law (Madhya Pradesh Land Revenue
Code, 1954) enacted by the state government after the Constitution came into effect, but with
provisions based on a pre-Constitution law. This pre-Constitution law restricted the transfer of
agricultural land.
 Court's Ruling: The court distinguished between pre-Constitution and post-Constitution laws. It
held that pre-Constitution laws conflicting with fundamental rights become unenforceable but are
not void entirely. They can be revived through amendments that bring them in line with the
Constitution.

Significance of the Doctrine:

 Protects Fundamental Rights: The doctrine ensures that pre-existing laws don't undermine
fundamental rights.
 Preserves Existing Laws: It avoids the complete invalidation of pre-Constitution laws, allowing
them to be revived if necessary.
 Role of Amendments: The doctrine highlights the importance of amending the Constitution to
reconcile pre-existing laws with fundamental rights.

It's important to note:

 The doctrine of eclipse has been primarily applied to pre-Constitution laws. There's some debate
about its applicability to post-Constitution laws that violate fundamental rights.
 Some argue that post-Constitution laws in conflict with fundamental rights should be declared void
ab initio (from the beginning).

Q. explain deep Chand v. State of UP case referring to the doctrine of an eclipse on

post-constitutional laws

The interesting aspect of the Deep Chand v. State of U.P. (1959) case is that it clarifies the
inapplicability of the doctrine of eclipse to post-constitutional laws.

Background: The doctrine of eclipse, as explained earlier, deals with pre-existing laws and their
potential conflict with fundamental rights enshrined in the Constitution.

Deep Chand Case and the Doctrine:

 Facts: Deep Chand challenged a law enacted by the state of Uttar Pradesh after the Constitution
came into effect. This law restricted his right to property, a fundamental right.
 Court's Ruling: The Supreme Court distinguished Deep Chand's case from the doctrine of eclipse.
It held that, unlike pre-existing laws, any law passed after the Constitution (post-constitutional
law) that violates fundamental rights is void ab initio (from the very beginning). It's considered a
nullity and has no legal effect.
 Impact on Doctrine of Eclipse:

 This case established a clear distinction between pre and post-constitutional laws.
 The doctrine of eclipse, with its concept of law becoming dormant, doesn't apply to post-
constitutional laws.

Key Point: Post-constitutional laws contradicting fundamental rights are struck down entirely, not
just eclipsed.

Article 13(2) and Judicial Review:

 This distinction between pre and post-constitutional laws is further supported by Article 13(2) of
the Indian Constitution. It states that no law made after the commencement of the Constitution
shall infringe upon the fundamental rights guaranteed under Part III.
 Deep Chand v. State of U.P. exemplifies the power of judicial review under Article 13. The court
used judicial review to invalidate a law that violated fundamental rights.

Q. is constitutional amendment a LAW under article 13(2)?

In India, whether a constitutional amendment is considered a "law" under Article 13(2) has been a
subject of interesting judicial interpretation throughout history.

Early Interpretation (Shankari Prasad v. Union of India, 1951):

 The Supreme Court initially held that the word "law" under Article 13(2) did not include
constitutional amendments.
 This meant Parliament could amend any part of the Constitution, including Fundamental Rights,
through the procedure laid down in Article 368.

Shifting View (Golak Nath v. State of Punjab, 1967):

 The Supreme Court overturned the Shankari Prasad decision in the Golak Nath case.
 They argued that "law" in Article 13(2) should encompass all laws, including amendments, to
ensure Parliament doesn't erode Fundamental Rights through amendments.
 This meant amendments violating Fundamental Rights could be declared void.

Parliament's Response (24th Amendment Act, 1971):

 In response to Golak Nath, Parliament enacted the 24th Amendment.

 A new clause (Article 13(4)) was added, stating that Article 13 doesn't apply to amendments made
under Article 368.
 This essentially reversed the Golak Nath decision and protected amendments from judicial review
under Article 13(2).

Post-Amendment Scenario:
 With Article 13(4), constitutional amendments are no longer considered "law" under Article 13(2).
 Parliament regained the power to amend any part of the Constitution, including Fundamental
Rights, subject to the amendment process itself.

Additional Notes: The concept of a "Basic Structure Doctrine" emerged later, suggesting some
essential features of the Constitution cannot be amended by Parliament.

In conclusion, due to the 24th Amendment, constitutional amendments are not considered "law"
under Article 13(2). This limits judicial review of amendments based on Fundamental Rights
violations under Article 13(2).