UNIT 2

1. Definition of State(12)
Judicial Trends, Need for widening concept
2. Definition of Law (13)
Pre and Post Constitutional Laws
Doctrine of Severability
Doctrine of Eclipse
Judicial Review
3. Equality and Social Justice (14)
New Concept of Equality
Judicial Concept of Equality
Article 12- Defines State

1) The Government and Parliament of India that is Executive and Legislature of

the Union.

2) The Government and Legislature of each states.

3) All local or other authorities within the territory of India.

4) All local and other authorities under the control of the Government of India.

 An action of these bodies that can be challenged before the courts as

violating the fundamental rights.
 The definition is for the purpose of application of the provisions contained
in Part III and IV
 Even if a party is not mentioned, where such a party has a public duty to
perform or party’s acts are supported by the State or public officials; a writ
under Article 226 may lie against it on non-constitutional grounds or
grounds of contravention of some provision of the Constitution outside Part
III

 Authorities –person or body exercising power to command in the context of

Art. 12.– the power to make laws and to enforce those laws.
 ‘Local Authority’ - authority legally entitled to or entrusted by the Government
with the control or management of a local fund.
Section 3(31) of General clauses Act – includes local self governing bodies like
Municipalities, District Board, Panchayats, Improvement Trust and Mining
settlement Board.

1. Calcutta State Transport Corporation v. Commissioner of Income-tax,

West Bengal Supreme Court refused to characterize the corporation as a ‘local

authority’. The corporation is meant only for the purpose of providing road
transport services and has no element of popular representation in its
constitution. Its powers and functions bear no relation to the powers and
functions of a municipal committee.It is more in the nature of a trading
corporation.

2.Premji Bhai Panwar v. Delhi Development Authority (DDA)

the Delhi Development Authority, a statutory body, held to be a ‘local authority’

because it is constituted for the specific purpose of development of Delhi
according to plan which is ordinarily a municipal function.

3.Mohammad Yasin V/s Town Area Committee

The S.C. held that the bye-laws of Muncipal Committee charging a prescribed fee
on the wholesale dealer was an order by a State Authority contravened Art. 19(1).
These bye-laws in effect and in substance have brought about a total stoppage of
the wholesale dealer’s business in the commercial sense.

Test to determine Local Authorities In Mohammad Yasin v. Town Area

Committee

1.Have a separate legal existence as a corporate body

2.Not be a mere government agency but must be legally an independent entity

3.Function in a defined area

4.Be wholly or partly, directly or indirectly, elected by the inhabitants of the area

5.Enjoy a certain degree of autonomy (complete or partial)

6.Be entrusted by statute with such governmental functions and duties (like
health, education, water, town planning, markets, transportation, etc.)

7.Have the power to raise funds for the furtherance of its activities and fulfilment
of its objectives by levying taxes, rates, charges or fees
  ‘other authorities’ –
Neither defined in Constitution nor general clauses Act, 1897
The functions of a government can be performed either through
governmental departments or through autonomous bodies which exist
outside the departmental structure. Such autonomous bodies may include
companies, corporations etc.

1. University of Madras v. Shanta Bai

 Is University of Madras made by the Madras Universty Act considered

state?
 the Madras High Court evolved the principle of ‘ejusdem generis’ of the like
nature- for term other authority - only those authorities are covered under
the expression ‘other authorities’ which perform governmental or
sovereign functions.
 cannot include persons, natural or juristic, for example, Unaided
universities.
 Hence university is not state coz it doesn’t have sovereign function

2. Ujjammabai v. the State of U.P.

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

3. Rajasthan Electricity Board v. Mohan Lal

 the Supreme Court - ‘other authorities’ include all authorities created by

the constitution or statute on whom powers are conferred by law.
 Such statutory authority need not be engaged in performing government or
sovereign functions. The court emphasized that it is immaterial that the
power conferred on the body is of a commercial nature or not.

4. Sukhdev vs Bhagat Ram

  Are the bodies made under statute but for commercial purpose a state?
 Statutory bodies like LIC etc set up under special statutes ARE state.

5. Ramana Dayaram Shetti V/s The International Airport Authorities of India

 Airport authority is state

 It was funded by state, enacted by intl airport act (a statute), chairman and
other members elected by state
 Functionality test:
If govt has A degree of control/ extra ordinary financial assistance
 Then private body also considered instrument or agency of state

6. Som Prakash vs UOI

 Bharat Petroleum is State

 tests by P.N. Bhagwati, J. - to determining whether a body is an agency of
instrumentality of government –
i) Financial resources of the state is the chief funding source that is if the
entire share capital of the corporation is held by the government.
ii) Existence of deep and pervasive state control.
iii) Functional character being governmental in essence.
iv) If a department of government is transferred to a corporation ie prior
history of activity being carried out by govt then transferred
v)some element of authority or command

7. SM.IIyar V/s ICAR

 held that Indian council of Agricultural research is a state within the

meaning of Art. 12 of the constitution.

8. Council of Scientific and Industrial Research (CSIR) is state

 19 April 2002, important case.

 supreme court - 7:5 majority overruled old judgement in 1975 and held
that (CSIR) is a state within the meaning of Art. 12
 therefore its employees can approach the High Courts or the Supreme
Court to enforce their fundamental rights of equality.
9. Ajay Hasia vs Khalid Mujeeb

Determining Test

 Entire Share capital is held by govt

 Great degree of fin assistance by govt
 Monopoly protected by State
 Deep and pervasive govt control
 If Function of corporation is of public importance/ related to govt
 If govt function is transferred to that body. corporation
  Territory of India
Article 1(3) - “The territory of India shall comprise-
(a) the territories of the States;
(b) the Union territories specified in the First Schedule; and
(c) such other territories as may be acquired.”

Masthan Sahib v. Chief Commissioner

the court held that the territory of India for the purposes of Article 12 means the
territory of India as defined in Article 1(3).

 Control of the Government of India

not that body must be under the absolute direction of the government
merely means government must have some form of control over the
functioning of the body.
Just because a body is a statutory body, does not mean that it is ‘State’.
Both statutory, as well as non-statutory bodies, can be considered as a
‘State’ if they get financial resources from the government and the
government exercises a deep pervasive control over it.

 Whether Judiciary falls under the definition of the term “State”

Article 12 not include ‘judiciary’
judicial authorities have power to pronounce decisions which may be
contravening to the Fundamental Rights of an individual.
If it was taken into the head of ‘State’, then, it would be by the obligation
that the fundamental rights of the citizens should not be violated.
Accordingly, judgements by the courts cannot be challenged on the ground
that they violate fundamental rights of a person.
•However, orders by the Supreme Court have regularly been challenged as
being violative of fundamental rights.
 distinction between the judicial and non-judicial functions of the courts
 When courts perform non-judicial functions, they fall within the definition
of the ‘State’
  When the courts perform their judicial functions, they would not fall within
the scope of the ‘State’.
 judicial decision cannot be challenged but administrative decision can be

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1,

 China Cotton Exporters, of which Mr. Thackersey was a partner, had obtained
licences for import of art silk yarn on condition that the same would be sold
to handloom weavers only. In order to sell the said silk yarn in the black
market with a view to realise higher profits, three bogus handloom factories
were created on paper. Bhaichand G. Goda was alleged to have been the
guarantor in respect of the transactions mentioned in the said suits and was
a defence witness in the libel suit. The allegations made by Mr. Goda against
Mr. Thackersay in an affidavit were published in the paper ‘Blitz’ edited by
Mr. R. K. Karanjia, one of the parties in the original libel suit under article
“Scandal Bigger than Mundhra”
 9-judge bench held - judicial decision cannot affect fundamental rights
 What judicial decision do is decide the controversy between the parties
brought before the court

In Prem Garg v/s Excise Commissioner H.P [9] , the Supreme Court held that when rule
making power of judiciary is concerned, it is State. Whereas other jurists say that since
judiciary has not been specifically mentioned in Article 12, it is not State.

In Rati Lal v/s State of Bombay [10] , a different decision came from the court and it was
held that judiciary is not State for the purpose of Article12.

In A.R.Antulay v/s R.S.Nayak [11] and N.S.Mirajkar v/s State of Maharashtra [12] , it has
been observed that when rule making power of judiciary is concerned it is State but
when exercise of judicial power is concerned it is not State. The court said "Even if a
court is a state, a writ under article 32 cannot be issued to a high court o competent
jurisdiction against its judicial order because such order cannot be held to vitiate
Fundamental Rights.
Article 13- Law

• Article 13(1) refers to pre-Constitution laws

• Art. 13(2) refers to post-Constitution laws

• A law is void if inconsistent with a Fundamental Rights, void statue –

unenforceable

• law in contravention of Part III is dead from the very beginning and cannot
at all be taken notice of or read for any purpose whatsoever.

• No retrospective effect- All inconsistent existing laws void only from the
commencement of the Constitution. Acts done before cannot be
challenged in any court of law.

Keshavan Madhava Menon v. State of Bombay

a person was being prosecuted under a law before the Constitution came into
force. After the Constitution came into force, the law i.e. Section 18 of Press
(Emergency Powers) Act became void under Art 19(1)(a)

void ab initio for all purposes if inconsistent with the fundamental rights.
The appellant is the Secretary of People’s Publishing House Ltd. a pamphlet was published under the
name Railway Mazdooran ke Khilaf Nai Zazish in Bombay. It was contended that the appellant has
committed an offence under the Indian Press (emergency Powers) Act, 1931. The prosecution
proceedings were initiated against the petitioner. But the trial court decided that it involves a question
of law. During the pendency of the case proceedings, the Constitution was enacted and came into
force on January 26, 1950. On 3 rd march, 1950, the petitioner filed a written statement submitted that
the definition of newssheet as given in § 2(6) of the Indian Press (Emergency Powers) Act, 1931 and
§§ 15 and 18 thereof were ultravires. It is void in the view of Article 19(1)(a) and Article 13 and
hearing of the case should be stayed till the High Court of Bombay decides that question of law.
Doctrine of Severability

 According to Article 13, a law is void only “to the extent of the
inconsistency or Contravention” with the relevant Fundamental Right.
 it means that an Act may not be Void as a whole; only a part of it may be
void and if that part is severable from the rest which is valid, Then the rest
may continue to stand and remain operative.
 If, not possible to separate the Valid from the invalid portion, then the
whole of the statute will have to go since valid part isnt independant.
 The Rule - invalidity is only to the extent of inconsistency -General principle
of statutory interpretation.
 In determining whether the valid parts of a statute are Severable from the
invalid parts, the intention of the legislature is the determining factor.

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

 petitioner- communist leader was detained under the Preventive Detention

Act, 1950
 sec 14 says that if a person is detained under this act then he cant disclose
grounds of detention to the court
 he challenged the sec 14 of preventive detention on the ground that is
infringement of his fundamental rights under article 19 and 21 of Indian
Constitution.
 The Supreme Court held that only the unconstitutional provision of the
challenged Act will be void according the Doctrine of Severability.
 Section 14 of the Preventive Detention Act was declared unconstitutional
and void. The Section 14 was severed and every other sections of the
Preventive Detention Act, 1950 remained constitutionally valid.

RMDC v. Union of India

 the Prize Competition Act - broad -include competitions Of a gambling

nature and those involving skills.
 Under Art. 19(1)(g), Parliament could restrict prize Competitions only of a
gambling nature but not those involving skills.
  The Supreme Court let some parts Of the act intact because Parliament
would still enacted the law to regulate competitions of gambling Nature.

D.S Nakara vs Union of India

 the act remained valid and the portion which was not consistent was
declared as invalid and this was because it was easily separated.
 Petitioner- retired civil servant and member of the service personnel of the armed forces. On
May 25, 1979, the Finance Minister of India issued a memorandum through which the
computation of pension was liberalized but made it applicable only to those Government
Servants who were in the service on 1st April, 1979 or retired from the service on or after the
specified date. The petitioner asked the court to consider that the classification on the basis
of the date of retirement was not reasonable. They demanded that as classification was
unjust it should be scrapped from the new pension rule .
 The court held that the rule, which said that the new rate is applicable on those Government
servants who are retired on or after April 1, 1979, is unconstitutional and so it was struck
down by the court. After removing the unconstitutional part it was declared that all
pensioners governed by the 1972 rules irrespective of their retirement date are entitled to
receive pension according to this liberalized scheme from the specified date.The
classification is not rational and so it attracts violation of article 14, which say that equals
should not be treated differently.

State of Bombay vs F.N Balsara

 the Bombay Prohibition Act which prohibited sale and possession of liquors
in the State, was challenged on the ground that it incidentally encroached
upon Import and export of liquor across custom frontier—a Central subject.
 held that provision of Bombay Prohibition Act, 1949 where the entire Act
was declared as void and it did not affect the rest of the part and there was
no need to declare the whole statute as void.
The Doctrine of eclipse

 pre-Constitution law - inconsistent with a Fundament Right - not wiped out

altogether - it continued to exist in respect of rights and liabilities which
had accrued before the date of the Constitution.
 Therefore, the law in question will be regarded as having been ‘eclipsed’ for
the time being by the relevant Fundamental Right.
 dormant or moribund condition for the time being.
 Such a law - not dead for all purposes.
 The doctrine of eclipse has been held to apply only to the pre-Constitution
and not to the post-Constitution laws.
 The reason –
while a pre-Constitution law was valid when enacted/valid at inception and,
therefore, was not void ab initio,
its voidity supervened when the Constitution came into force
while , a post-Constitution law infringing a Fundamental Right is
unconstitutional and a nullity from its very inception

 The impugned law must be violative of the fundamental rights and cant be
justified, and then only can it be hidden or eclipsed.

 The law does not become a nullity but just remains unenforceable &
defective.

 If the fundamental right that is violated by the impugned law is amended in

the future, the law automatically becomes operative.

Bhikaji v, State of Madhya Pradesh

 Challenged the berar motor vehicle act of 1947

 an existing law in this act authorised the state government to exclude all
private motor transport operators from the field of transport business and
hence state govt was empowered to take over the entire motor transport
business
 Parts of the law became void on the commencement of the Constitution, as
it infringed the provisions of article 19 and could not be justified.
  So these sections became inactive
 In 1951, clause (6) of article 19 was amended to permit the government to
monopolise any business
 So these sections became active
 however, SC removed the constitutional impediment and the impugned act
ceased to be unconstitutional.

Deep Chand v. State of Uttar Pradesh

Doctrine applies only to pre-constitutional laws as given under Article 13(1). It

does not apply to any post-constitutional law as under Article 13(2) because the
post-constitutional laws in violation of fundamental rights are void ab initio
Art13 (2)

 deals with post constitutional laws

 states that once the constitution is framed and came in effect then any of
the state may not make laws that takes away or abridges the fundamental
rights of an individual or abridges any of the rights conferred by Part III.
and if done so then it would be void till the extent of contravention.
 A void statute could be revived by constitutional amendment - as per
article 31B, curing of the defect takes place with retrospective operation
from dates on which the acts were put on statute book.
 Sometimes, courts also apply their decision prospectively i.e., though they
found a law against the fundamental rights, they invalidate it for the
future.
 For the reasons given in above case, the doctrine of eclipse should apply to
laws falling under Clause (2) of Article 13.
 The protection against impairment of the guarantee of fundamental rights
is determined by
 1)the nature of the right
2) interest of the aggrieved party
3) degree of harm resulting from the State action.
 The state action must be assessed in relation of its operation upon the
rights of an individual.

State of Gujarat vs. Shri Ambica Mills

 Certain Labor welfare fund was challenged

 Q- what is validity of such laws wrt non citizens/ companies
 Respondent was a company whose fr was violated
 post-Constitution law offending article 19 remained operative as against
non-citizens/ companies
 company here is the respondent i.e Ambika mills
 It was held by the apex court that since the fundamental rights are only
granted to the citizens but not to the company or any non-citizen, therefore
the labour welfare fund act is valid.
  This is due to the fact that the law was void only to the extent of
inconsistency with the fundamental rights conferred under article 19 and
that’s only to citizens.
 It was held that if a law takes away or abridges the fundamental right of
one class of persons or of minorities or denominations, it could not be void
as against others who have no such fundamental right.
 So this section was still valid not void

Benett Coleman’s case

 The Supreme Court of India accepted petitioners’ challenges that certain
restrictions and regulations on newspapers affected the right to freedom of
speech and expression. The petitioners challenged the restrictions on the
import of newsprint under Import Order 1955; the regulation of sale,
acquisition, and use of newsprint under Newsprint Order 1962; and the
direct regulation of size and circulation of newspapers under the Newsprint
Policy of 1972-73. The Court found that because the freedom of the press
involved both qualitative and quantitative dimensions, the Newsprint Policy
was unconstitutional as its quantitative restrictions were not justified by a
shortage of newsprint; the Newsprint Order and Import Control Order were
not struck down.
 restrictions on the import of newsprint under Import Control Order
1955
 manner in which this is used by newspapers under the Newsprint
Order 1962.
 Newsprint Policy of 1972-73 placed further restrictions based on four
features: 1)no new newspapers may be started by establishments
owning more than two newspapers if at least one of which is a daily;
2) the total number of pages may not exceed ten;
3)the increase in number of pages may not be more than 20% for
newspapers that are under ten pages;
4)no-interchangeability of newsprint may permitted between different
newspapers of the same establishment or between different editions
of the same paper. Therefore, the petitioners were not allowed to
make adjustments in circulation, etc., under these newsprint policies
even within the quota limit.
 This was challenged for violation of Article 19(1)(a) of the Indian
Constitution.
 The respondents argued that the petitions were not maintainable
because companies do not enjoy fundamental rights, which are
available only to natural persons.
  They also proposed a subject-matter test of restriction rather than an
“effects test.” True test was the direct effect of the impugned state action
on a particular fundamental right.
 Accordingly, the restrictions were valid because they regulated the
commercial operations of newspapers in order to prevent monopolies,
by which any effect on freedom of expression was incidental.

Maneka Gandhi

Direct and inevitable consequence of the state action must be considered.

 None of the cases clearly state what effect of state action has to be
considered as direct or indirect and hence, it has to be judged with
reference to protected right
 Laws made by competent legislature are deemed to be constitutional and
therefore, deemed to be not violative of the fundamental rights and one
must prove and satisfy the court that such a law is violative of Fundamental
Rights.
 If 2 interpretations of law are possible, one that makes it unconstitutional
because it conflicts with a fundamental right must be preferred over the
other in order to save the law from unconstitutionality.
Article 13(3)

• Discusses Law and Law in force

• About the meaning of law i.e the laws whether by laws, notifications, rules,
regulations, customs, usage, etc if do effect the legal rights of the citizens
do come under the definition of law, thus would be considered as laws
under article 13

There are two exceptions to the same

1. the administrative and the executive orders are being covered under
article 13 but if their nature is just to give instructions or guidelines then
they would not be covered under article 13.

2. personal laws are not covered under article 13.

Article 13 (4)- Constitutional Amendmends

• Nothing in this article shall apply to any amendment of this Constitution

made under Article 368

• Even if amendment is violative of fr still it cant be challenged under art 13

1. Shankari Prasad Singh vs. Union of India

 Sc- meaning of law under art 13 doesn’t include amendment

 Amendment cant be challenged
 the Constitution Act, 1951 that amended the fundamental rights was not a
valid law within the meaning of clause (2) of article 13.
 The SC rejected the contention and held that the word ‘law’ did not include
a law made by Parliament rather the word ‘law’ must be taken to mean
‘rules and regulations made in exercise of ordinary legislative power and
not ‘amendments to the Constitution made in exercise of constituent
power’.

Sajjan Singh vs. State of Rajasthan - The same has been reiterated.

2. Case of Golaknath

 Power of judicial review is supreme

 Even amendments can be challenged
 Judicial power got increased
 Parliament introduced 24th consti amendment
 Art 13 (4)- any amendment through art 368 cannot be challenged under 13

SC held that word ‘law’ included amendments to Constitution and if an

amendment took away a fundamental right, the Amending Act itself was void and
ultra vires.

3. case of Kesavananda Bharati

 Held amendments cant be challenged under art 13

  overruled Golaknath and held that under article 368 all provisions including
FRs can be amended, however, the basic structure of the constitution could
not be amended.

Even if an amendment is not ‘law’ within meaning of Article 13, it does not get
exempted from being invalidated on ground that by violating a FR, it violates the
basic structure
Article 14- Equality

 Fundamental rights- Part III of the Constitution

 Right to equality - Articles 14 to 18
 (1) Equality before law- Prohibits unequal treatment and
 (2)Equal protection of law- Demands equal treatment

Background

 AV Dicey introduced Rule of Law in book ‘ Constitution of England’

 According to Rule of law- Supremacy of Law over people and body
 Govt and Governed are treated equally
 Since the 17th century, the theory, that man has certain basic rights
 concept of human rights can be traced to the natural law philosophers,
such as Locke and Rousseau
 The underlying idea in entrenching certain basic and Fundamental Rights is
to take them out of the reach of transient political majorities. these rights
be entrenched in such a way that they may not be violated, tampered or
interfered with by an oppressive government.
 The types of equality mentioned in the Preamble.
1.Natural 2.Social 3.Civil 4.Political 5.Economic 6.Legal

Rule of law and equality before the law

• Rule of law - no one is above the law

The law is the same for each and every individual of the country.
every person is subject to the law, including people who are lawmakers
• Equality before law - every indivisible is equal in the eyes of the law.
Everyone must be treated equally under the law regardless of race, gender,
national origin, color, ethnicity, religion, disability, or other characteristics,
without privilege, discrimination or bias.
• Prof Dicey - equality before the law= Rule of law prevalent in England.
• 1.absence of arbitrary power or supremacy of the law
• 2.equality before the law
• 3.constitution is the result of ordinary law of the land
Article 14(1) Equality before the law

 English law concept of rule of law

 Negative concept
 Prof. Dicey, in England, “with us every official, from the prime minister
down to a constable or a collector of taxes, is under the same responsibility
for every act done without any legal justification as any other citizen.”
 Eg Lady Justice
 The phase “equality to the law “ find a place in all written constitutions that
guarantees fundamental rights.

Article 14(2) Equal protection of law

 American concept
 article 14 taken from section 1 of the 14th amendment act of the
constitution of the United States.
 Equity over equality
 equal protection of the laws is a Positive Concept as it implies equality of
treatment in equal circumstances both in privileges conferred and liabilities
imposed.
 The guarantee of equal protection applies against substantive as well as
procedural laws.

Limitations of the concept of Equality under Article-14

 does not mean that every law must have universal application for all
persons who are not by nature, attainment or circumstances in the same
position, as the varying needs of different classes of persons often require
separate treatment.
 The principle does not take away from the State the power of classifying
persons for legitimate purposes. The legislature is competent to exercise its
discretion and make classification.
• distinction between private persons and public officials
• -special rules for certain classes of people, eg Armed forces- martial law
• Immunity to President and Govenors under article 361
 • Executive authorities are given discretionary powers to act as he thinks fit

Reasonable Classification

• be based on smart differences.

• collectively grouped persons or things make a properly defined, distinct
class and may be exceptional from those left out of the group.
• this classification basis must have a rational nexus to the object that the
legislation in question seeks to achieve.
• Illustration- The law on maternity benefits applies to women working on
the way to maternity, not to others. Because the purpose of the law on
maternity benefits is to grant privileges only to women who turn out to be
mothers when they need them. Hence, the category of men and women is
based totally on an intelligible differentia.
• EG- In case of tax laws - Charities, libraries are exempted from sure tax
whereas other residences are not.

Test of Reasonable Classification

State of Bombay vs FN Balsara

 To protect from taking undue advantage of classification

 2 Factor Test Criteria
1.Intelligible differentia- must rest on substantial distinction which is real.
2.Rational Nexus- It must bear a reasonable and just relation to the sought
object or result ie relation bw classification and desired end
• Article 14 of the Indian constitution forbids class legislation but it does not
prohibit the reasonable classification for the purpose to achieve specific
ends by the parliament.
• Such classification should not be artificial, arbitrary or evasive
• But these were Old Doctrine

EP Royappa vs State of tamil Nadu

 New Doctrine
 Equality is dynamic and active
  Extended Equality before law to include natural Justice along w Rule of Law
 This was used in Maneka Gandhi
 New Factor Test Criteria
1.Intelligible differentia.
2.Rational Nexus
3. ReasonableNess and not arbirtrary

Maneka Gandhi

Saurabh Chaudhari v Union Of India,

Classification of reasonable as laid by the Indian Supreme Court has two

conditions

(i)- founded on intelligible differentia, distinguishing grouped together persons or

goods from the left out ones of the group.

(ii)- The differential must be in a rational relation with the sought object that is to
be achieved by the act.

• The object of the act and differential on the basis of classification are two
separate things.
• essential - presence of nexus between the object of the act and the basis of
classification.
• When a reasonable basis is not present for classification then such
classification made by the legislature must be declared discriminatory.

Mithu vs State of Punjab (1983)

• Sc ruled- mandatory death penalty is unconstitutional

• struck down Section 303 in the IPC, - mandatory death sentence- person
who commits murder while serving a life term in another case.
• The Supreme Court ruled Section 303 violated Articles 14 (right to equality)
and 21 (right to life) since an unreasonable distinction was sought to be
made between two classes of murders.
• It said all murders would come under the ambit of Section 302, where a
court would have the discretion to award life term or death sentence
AK Abbas v UOI

• petitioner - journalist, playwright, writer and film producer

• He produced a short film called A Tale of Four Cities- depicted
contemporary realities of life in Bombay, Calcutta ,Delhi and Madras
• The film contrasted the luxurious lives of the rich with the squalor of
poverty.
• He sought a U certificate from the Censor Board for unrestricted public
viewing.
• For granting a U certificate, the Censor Board’s Examining Committee
recommended a certificate that restricted public viewing to an audience of
adults.
• This decision was confirmed by the Revising Committee. On appeal, the
Central Government recommended a U certificate if a scene set in the red-
light district was removed.
• The scene suggestively portrayed immoral trafficking, prostitution,and
economic exploitation by pimps. The scene was considered unsuitable for
children.
• The petitioner filed a writ petition before the Supreme Court, arguing that
his right to freedom of expression was violated because, firstly, prior-
censorship itself cannot be tolerated in freedom of speech and expression,
and secondly, if any censorship is allowed, it must be on non-arbitrary
grounds.
• The petitioner also asked for directions for a fixed time-limit for a decision
of the Censor Board as well as an alternative appellate mechanism to
approaching the Central Government; these were granted by the
government and so were not discussed by the Supreme Court.
• The Court did not accept the distinction between prior censorship and
censorship in general and considered both to be governed by the standards
of reasonable restrictions within Article 19(2) of the Indian Constitution.
• The Constitution recognized that freedom of speech and expression was
not an unrestricted right and therefore, reasonable restrictions could be
imposed.
 • The absence of the word ‘reasonable’ in the Cinematograph Act was
considered inconclusive in this regard. Prior censorship was permitted
under the Constitution for public order or tranquility.
• The Court referred to the guardianship role of the Courts as the legal
protector of citizens in preserving public interest.
• With respect to the issue of insufficient guidelines in the Act and the
arbitrary exercise of powers under the Act, the Court found that the
guidelines given under the Act read with Article 19(2) of the Constitution
were sufficiently clear.
• However, it recommended that the guidelines draw a distinction between
artistic expression and non-artistic expression in assessing obscenity.
• This alone was however considered insufficient to strike down the
provisions of the Act.

Ramkrishna Dalmia vs Justice Tendolkar

Propositions governing a valid classification

1.A law may be constitutional even though it relates to a single individual if on

account of some special circumstances or reasons applicable to him and not
applicable to others, that single individual may be treated as a class by itself

2. There is always presumption in favour of the constitutionality of a statute and

the burden is upon him who attacks it to show that there has been a clear
transgression of constitutional principles.

3.The presumption may be rebutted in certain cases by showing that on the fact
of the statue, there is no classification and no difference peculiar to any individual
or class and not applicable to any other individual or class, and yet the law hits
only a particular individual or class

4. It must be assumed that Legislature correctly understand and appreciates the

need of its own people that its law are directed to problem made manifest by
experience and that its discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report, the history of the
times and may assume every state of facts which can be conceived existing at the
time of the legislation.

6. Thus the legislation is free to recognize degrees of harm and may confine its
restriction to those cases where the need is deemed to be the clearest.

7. While good faith and knowledge of the existing conditions on the part of a
legislature are to be presumed, if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the court on which the
classification may reasonable be regarded as based, the presumption of
constitutionality cannot be carried to extent always that there must be some
undisclosed and unknown reason for subjecting certain individuals or corporation
to be hostile or discriminating legislation

8.The classification may be made on different bases e.g. geographical or according

to object or occupation or the like.

9. The classification made by the legislature need not be scientifically perfect or

logically complete. Mathematical nicety and perfect equality are not required.
Equality before the law does not require mathematical equality of all persons in
all circumstances. Equal treatment does not mean identical treatment. Similarly
not identity of treatment is enough.

10. There can be discrimination both in the substantive as well as the procedural
law. Article 14 applies to both. If the classification satisfies the test laid down in
the above propositions, the law will be declared constitutional. The question
whether a classification is reasonable and proper and not must however, be
judged more on commonsense than on legal subtitles.
Article 14 Permits Classification But Prohibits Class Legislation

• Neither means that the laws need to be general in character nor that it
should be applicable to everyone
• Different classes have various needs that require separate treatment.
• For safety and security different laws for varying places and legitimate
control policies enacting laws lie at the best interest of the state.
• Identical treatment in unequal situations, in fact, would amount as
inequality.
• for the society to progress a reasonable classification is not only permitted
but also necessary.
• The article applies on the reasonable basis, equals are treated differently.
The article does not apply where unequals and equals are given different
treatments.
• Conferring particular privileges upon a class of persons, class legislation
makes improper discrimination by selecting a large number of persons
arbitrarily.
• No reasonable or substantial difference can be found in justifying the
exclusion of the one and the inclusion of the other from such privilege.

Legitimate expectation

 is said to arise “as a result of a promise, representation, practice or policy

made, adopted or announced by or on behalf of government or a public
authority.” Therefore it extends to a benefit that an individual has received
and can legitimately expect to continue or a benefit that he expects to
receive. When such a legitimate expectation of an individual is defeated, it
gives that person the locus standi to challenge the administrative decision
as illegal. Thus even in the absence of a substantive right, a legitimate
expectation can enable an individual to seek judicial review

Reasons for protecting legitimate expectations:

• It is required by fairness; abuse of power has been considered the root

concept justifying the protection of legitimate expectations; in European
 context, legal certainty i.e. the individual ought to be able to plan his or her
action on the basis that the expectation will be fulfilled is also relied upon;
the trust that has been reposed by the citizen in what he has been told or
led to believe by the official.

Schmidt v Secretary of State for Home Affairs (1969) All ER 904

• The plaintiffs had come to England to study at a college run by the Church
of Scientology, and now complained that their student visas had not been
extended so as to allow them to complete their studies. They said that the
decision had been made for improper reasons. They now appealed against
an order striking out their claim.
• The Court held that there had been no requirement to hear them. Lord
Denning said that a hearing would not be needed unless the individual had
some right or interest or “legitimate expectation” of which it would not be
fair to deprive him without hearing what he had to say. On the facts here,
the claimants had no such right, interest or expectation. It would have been
otherwise is the claimants’ stay had been cut short.

When is an expectation legitimate

• founded upon a promise or practice by the public authority that is said to be

bound to fulfill the expectation.

•clear statutory words override any expectation howsoever founded.

•notification of a relevant change of policy destroys any expectation founded

upon the earlier policy.

• individual seeking protection of the expectation must themselves deal fairly

with the public authority.

Types of Legitimate Expectations:

• 1. Procedural Legitimate Expectation-

Denotes the existence of some process right the applicant claims to possess as a
result of behavior by the public body that generates the expectation.
• 2. Substantive Legitimate Expectation-

Refers to the situation in which the applicant seeks a particular benefit or

commodity, such as a welfare benefit or license. The claim to such a benefit will
be founded upon governmental action which is said to justify the existence of the
relevant expectation. Some of the arguments in favor of substantive legitimate
expectations are: it creates fairness in public administration, reliance, and trust in
government, the principle of equality, upholds rule of law.