THE PREAMBLE: SOURCE OF THE CONSTITUTION

Every Constitution either written or unwritten all over the world has a preamble associated with
it. It generally sets the ideals and goals which the makers of the Constitution intend to achieve
through that Constitution.1 Therefore, it is also regarded as a “key to open the mind of the makers
of the constitution which may show the general purposes for which they made the constitution.2
For that reason the preamble is also a legitimate aid in the interpretation of the provisions of the
Constitution. Generally, for the purpose of interpretation, the preamble of the Constitution stands
on the equal footing as the preamble of an Act.3 The preamble indicates the source from which the
constitution comes viz. the people of India. It is ordained by the people of India through their
representatives assembled in a sovereign constituent assembly. The preamble declares clearly that
it is the people of India who have adopted, enacted and given to themselves the constitution. The
preamble embodies the great purposes, objectives and the policy underlying its provisions apart
from the basic character of the state which was to come into existence i.e. a sovereign democratic
republic. The preamble to the Indian constitution reads:
“We, the people of India, having solemnly resolved to constitute India into a sovereign, socialist,
secular, democratic republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity;
And to promote among them all
Fraternity assuring the dignity of the individual and the unity and integrity of the nation:

In our constituent assembly, this twenty-sixth day of November 1949, do hereby adopt, enact and
give to ourselves this constitution.” (the words ‘socialist’ and ‘secular’ have been added to the
preamble by the 42nd amendment act, 1976. also, ‘unity of the nation’ was amended to read ‘unity
and integrity of the nation’).
The objectives of the preamble are: justice, liberty, equality and fraternity. The ultimate goal is
that of “securing the dignity of the individual and unity and integrity of the nation.” The preamble
sets out the aims and aspirations of people, and these have been translated into various provisions
of constitution. The people will continue to be governed under the constitution so long as it is

1
“The Preamble contains in a nutshell its ideals and aspirations,” per Subba Rao, C.J. in I.C. Golak Nath v. State of
Punjab, AIR 1967 SC 1643, 1655: (1967) 2 SCR 762
2
Berubari v. Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 856: (1960) 3 SCR 250
3
Maxwell: The Interpretation of Statutes, 6-9 (12th Edn, 1969)
acceptable to them and its provisions promote their aims and aspirations. Following the course of
Indian history and pattern of Indian politics, it may be said that, unlike the western society, it is
the elite of Indian society rather than people themselves who have set the tone for reformation of
society.4 The constitution though not ratified by people, came into force in 1949.

Besides the fact that the preamble provides it is the people of India who have enacted and given to
themselves the constitution, the successful working of the constitution and its continued
acceptance by people over the years, leads to no other conclusion that the binding force of
constitution is the sovereign will of people of India. In Powell v. Kempton Park Race Course, 5
Lord Halsbury LC said: “ Two propositions are quite clear: one that a preamble may afford useful
light as to what the Statute intends to reach; and another, that if an enactment is itself clear and
unambiguous, no preamble can qualify or cut down the enactment.”

If at any stage of history, the people find that constitution is not serving the needs of society, they
may set in motion a machinery which provides for a system suited to aims and aspirations of
people. it may, therefore, be rightly observed that the ‘sovereignty’ lies with the people of India –
preamble declares that source of authority under the constitution is the people of India
(sovereignty, is not located in parliament, as it is bound by constitution…. which in a sense may
appear to be sovereign as it is supreme law. however, it is the people who have given …
constitution). Thus, the source of the constitution are the people themselves from whom the
constitution receives its ultimate sanction. The constitution has not been imposed on them by any
external authority, but is the work of the Indians themselves.

UTILITY OF PREAMBLE
The preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of the entire
constitution of India. It had the stamp of “deep deliberation”, was “marked by precision”: it was
“an epitome” of the broad features of the constitution which were an amplification or
concretization of the concepts set out in the preamble 6. The preamble does not grant any power
but it gives a direction and purpose to the constitution. The utility of the preamble is as follows:
1. It contains the enacting clause which brings the constitution into force.
2. It indicates the source of constitution.
3. It declares the basic type of government and polity which is sought to be established in the
country.

4
Radhika Seth, “ Constitutional Law and its Perspectives” pp.6-8
5
1899 AC 143 at 153
6
Madhlokar, j. in Sajjan Singh v. State of Rajasthan 1965 AIR 845: (1965) SCR (1) 933
 4. A statement of objectives of the constitution – which the legislation is intended to achieve
(example implementation of directive principles). It epitomizes principles on which the
government is to function.
5. It serves as a challenge to the people to adhere to the ideals enshrined in it (justice, liberty,
equality, fraternity, etc.).
6. It is a sort of introduction to the statute and many a times very helpful to understand the
policy and legislative intent. It is a ‘key-note’ i.e. key to the minds of the framers of the
constitution.
7. Several decisions of the Supreme Court pointed out the importance and utility of it. By
itself, it is not enforceable in a court of law, yet it states objects and aids legal interpretation
of the constitution, where language is ambiguous….. Construction which fits the preamble
may be preferred (however, the preamble cannot override the express provisions of an act).
Amendment of preamble
In Berubaris’ case7, the Supreme Court held that preamble is not a part of constitution and thus not
a source of any substantive powers and doesn’t import any limitations. However, in Keshavananda
Bharti’s case8 the court held that preamble is part of constitution and it is of extreme importance;
and constitution should be read and interpreted in the light of grand and noble vision expressed in
preamble. In fact the preamble was relied on in imposing implied limitations on amendment under
the art. 368. held that since preamble is part of constitution, it can be amended, but ‘basic features
in it can’t be amended. As edifice of our constitution is based upon these features and if they
removed, it will not be the ‘same’ constitution. Amending power can’t change the constitution in
such a way that it ceases to be a ‘sovereign democratic republic. It may be noted that in exercise
of the amending power under art. 368, the constitution (42nd) amendment act, 1976 amended the
preamble inserting the terms ‘socialist’, ‘secular’ and ‘integrity’.

7
Berubari Union & Exchange of Enclaves, Re, AIR 1960 SC 845, 856
8
Keshvanand Bharti v. State of kerala, (1973) 4 SCC 225
 Indian Constitution: Federal or Quasi-Federal
The Indian federalism was designed on the basis of the working of the federalism in USA, Canada
and Australia. Yet it deviates from those federalisms in many respects and establishes its own
distinctive features. There is a difference of opinion among scholars about the nature of Indian
constitution — whether it is federal or not.

Federal characteristics of Indian constitution

There is a dual polity i.e. central and state government. There is a supreme constitution. Our
constitution is a written and rigid constitution. It can be amended only to the extent of and in
accordance with the provisions contained therein article 368. Further, the constitution establishes
an apex court in the form of the Supreme Court to maintain the authority of the courts.
The constitution does incorporate the concept of federalism in various provisions. the provisions
which establish the essence of federalism i.e. having states and a center, with a division of
functions between them with sanction of the constitution include, among others, lists 2 and 3 of
the seventh schedule that give plenary powers to the state legislatures; the authority to parliament
to legislate in a field covered by the states under article 252, only with the consent of two or more
states; the competence of parliament to legislate in matters pertaining to the state list, only for a
limited period, under article 249, “in the national interest”, and, under article. 258 (1) to entrust a
state government (with the governor’s consent) functions in relation to which executive power of
the union extends; decentralization of power through 73rd and 74th amendments; etc.
Deviations from federal characteristics: Unitary features of Indian constitution
In the following matters, it is pointed out, the Indian constitution modifies the strict application of
the federal principle:-
(1) Legislative relations – Under the art. 249, parliament is empowered to make laws with respect
to every matter enumerated in the state list, if it is necessary in the national interest. In case of
inconsistency between the laws made by parliament and laws made by legislature of states, the
laws made by parliament whether passed before or after the state law in matters enumerated in
concurrent list, to the extent of repugnancy prevail over the state law. In case of an overlapping
between the matters of three lists i.e. union, state and concurrent list, predominance has been given
to the union (article 246). Previous sanction of the president is required for introduction of certain
bills in the state legislatures (viz. art. 304).
(2) Administrative or Executive relations – All planning is at the union level (via planning
commission), the states only implement the plans formulated by the union. The executive power
of every state has to be exercised as to ensure compliance with the laws made by parliament. article
365 authorizes the president to hold that a situation has arisen in which government of a state
cannot be carried on in accordance with the provisions of constitution, if the state fails to comply
with or give effect to any directions given in exercise of the executive power of the union.
(3) Financial relations – the states depend largely upon financial assistance from the union
(through grants-in-aids). power of taxation (which is exercisable by the states in comparatively
minor fields, the more important such as income-tax, wealth-tax, excise-duties other than those on
certain specified articles and customs, being reserved to the union) conferred by various entries
under list ii on the states is also severely restricted.
(4) Parliament’s power to form new states and alter boundaries of existing states – The very
existence of the state thus, under article. 3, depends upon the sweet will of union.
(5) Appointment of governors – The governors of states is appointed by president and answerable
to him. They hold the office at the pleasure of the president. They thus act in a manner suitable to
the president even at the cost of the interest of the states of which they are governors. There are
provisions in constitution under which the governor is required to send certain state laws for the
assent of president and the president is not bound to give his assent.
(6) Emergency provisions – under emergency, the normal distribution of powers between the
center and states undergo a vital change (in the favour of the center). Under article. 356, the state
legislature can be dissolved and president’s rule can be imposed either on the governor’s report or
otherwise when there is a failure of the constitutional machinery in a state.
(7) Single and uniform citizenship – for the whole country.
(8) Uniform and integrated judicial system – for the whole country.
(9) Inter-State council – if at any time it appears to the president that the public interests would
be served by the establishment of a council charged with the duty of- (a) inquiring into and advising
upon disputes which may have arisen between states; (b) investigating and discussing subjects in
which some or all of the states, or the union and one or more of the states, have a common interest;
or (c) making recommendations upon any such subject and, in particular, recommendations for the
better co-ordination of policy and action with respect to that subject, it shall be lawful for the
president to establish such a council, and to define the nature of the duties to be performed by it
and its organization and procedure (article. 263).
(10) Freedom of trade and commerce — for the whole country. The comprehensive provisions
of part 13 seek to make India a single economic unit for purposes of trade and commerce under
the overall control of the union parliament and the union executive.
Thus, in certain circumstances, the constitution empowers the center to interfere in the state matters
and thus places the states in a subordinate position or converts the union into a unitary state, which
violates the federal principle.

Criticism of Wheare’s Views

The term “quasi-federal” as suggested by wheare is very vague as it does not denote how powerful
the center is, how much deviation there is from the pure ‘federal model’, etc. it may be that center
has been assigned a larger role than the states but that by itself does not detract from the federal
nature of constitution, for it is not the essence of federalism to say that only so much, and not more
power, is to be given to the center.
The federalism varies from place to place, and from time to time depending on factors like –
historical, geographical, economic and political. Indian constitution is sufficiently federal, and it
is no less federal than American federalism. The framers of Indian constitution kept in view the
practical needs of country designed on federal structure not on the footing that it should conform
to some theoretical or standard pattern, but on the basis that it should be able to sub serve the need
of the vast and diverse country like India.

Conclusions: Indian federalism is ‘unique’

India adopted a federal structure as the different parts of the country were at different stages of
development and it would have been difficult to control from one center; and to ensure minorities
their due place.
However, the Indian federalism is unique because of its mode of formation i.e. from union to states
(creation of autonomous units and then combining them into a federation), and not vice versa. It
is to be noted that term ‘union of states’ (article. 1) and not ‘federation’ is used in the constitution.
Also, the units have no right to secede (as in a confederation).
The constitution of India is neither purely federal nor purely unitary, but is a combination of both.
It is a union of composite states of a novel type. Neither the parliament not the state legislation is
‘sovereign’ because each being limited by the constitutional provisions affecting the distribution
of powers. The constitution enshrines the principle that in spite of federalism, the national interest
ought to be paramount. Thus, the Indian constitution is mainly federal with unique safeguards for
enforcing national unity and growth.
The scope of application of federal principle in India is shown by the scope of state legislatures.
However, Indian federation is not defective; the defect is political because there is a conflict
between opposition-party ruled states and the central government. Also, federalism is not dead in
India, as evidenced by the fact that new regions are demanding statehood and union has yielded,
thus states like Manipur, Tripura, Goa, etc. have been created. Moreover, in spite of conflicts, the
opposition-party ruled states do exist.
 Union and its Territories: As provided under article 1 – 4 of the Indian Constitution

Part 1 of the Constitution comprising of Articles 1 to 4, provides a self-contained mechanism for

effecting changes in the constitution of states or union territories of the Union of India.
By a simple majority and by ordinary legislative process, Parliament may form a new state or alter
the boundaries, etc. of existing states and thereby change the political map of India.
Article 1 of the Constitution declares that the sovereign democratic Republic of India ‘shall be the
Union of States’. The choice for a strong federation with a strong Centre was made both for
political and administrative reasons although the move to describe the Constitution as federal
failed. The Constituent Assembly accepted the view of the Drafting Committee that describing the
Union as Federation was not necessary. The Drafting committee had a purpose in choosing the
word ‘Union’, in preference to the “Federation”. They were of the view that the word “Union”
better expresses the fact that the Union of India is not the outcome of an agreement among the old
provinces with the result that it is not open to any State or a group of States to secede from the
Union or to vary the boundary of their States on their own free will. The Chairman of the Drafting
Committee, Dr. Ambedkar, said:
“ but I can tell you why the Drafting Committee wanted to make it clear that though India was to
be a Federation, the federation was not the result of an agreement by the States to join in the
federation and that the Federation not being the result of an agreement no State has the right to
secede from it. The Federation is a Union because it is indestructible. Though the country and the
people can be divided into different States for the convenience of administration the country is one
integral whole, its people a single people living under a single imperium derived from a single
source. The Americans had to wage civil war to establish that the States have no right to secession
and that their federation was indestructible. The Drafting Committee thought that it was better to
make it clear at the outset rather than to leave it to speculation.”

Article. 1: India – a union of states, its territory

Article. 1(1) declares that “India, that is Bharat, shall be a union of states” and the States and the
territories thereof are specified in the First Schedule. The expression “union” indicates that the
Indian federation is not the result of an agreement between the units it constituted of and that the
component units have no freedom to secede from the union so created. The Constituent Assembly
of India deriving its power from the sovereign people, was unfettered by any previous commitment
in evolving a constitutional pattern suitable to the genius requirements of the Indian people as a
whole. The Constitution contemplated changes of the territorial limits of the constituent States and
there was no guarantee about their territorial integrity.

Article. 1(3) mentions that the “territory of India” comprises of:

 1. State territories,
2. Union territories, and
3. Such other territories as may be acquired by the Government of India at any time.
There are at present 28 states and 7 union territories in the union of India. No parliamentary
legislation is required to acquire a foreign territory. It is the inherent attribute of a sovereign State
to acquire new territories. Article 1(3)( c), therefore, in including the acquired territory as a part of
the Indian territory, merely states a factual situation and does not confer a power on the Parliament
to acquire a foreign territory.
In N. Masthan Sahib v. Chief Commr., Pondicherry, the apex court held that the expression
‘acquired’ [article. 1 (3)(c)] should be taken to be a reference to ‘acquisition’ as understood in
public international law. If there was any public notification, assertion or declaration by which the
government of India had declared or treated a territory as part and parcel of India, the courts would
be bound to recognize an ‘acquisition’ as having taken place, with the consequence that the
territory would be part of the territory of the union within art. 1 (3) (c). A statement by the
government of India that it did not consider a particular area to have been acquired by it is binding
on the court. It does not matter how the Acquisition has been brought about. It may be by conquest,
it may be by cession following treaty, it may be by occupation of territory hitherto unoccupied by
a recognised ruler, or it may be under the terms of an agreement between two statesor it may be
by accretion. After independence the cases of Sikkim, Goa, Daman and Diu, Dadra and Nagar
Haveli and Pondicherry may be given as examples of acquisition.

Article. 2: Admission or establishment of new states

Article. 2 provides: “Parliament may by law admit into the Union, or establish, new states, on such
terms and conditions as it thinks fit.”
Article 2 enables Parliament by Law to admit into the Union or establish new States on such terms
as it thinks fit. It will be noted that there are two powers given to the Parliament by Article 2
namely:
1. The power to admit into Union new States and
2. The power to establish new States.
The first refers to the admission of duly organised political communities and second to the
formation of a State where none existed before. It will be recalled that the territory acquired by the
Union becomes Indian Territory by virtue of clauses 3(c) of Article 1. No Parliamentary sanction
is required for acquisition of territory acquired by the Government of India, though factually
becomes territory of India from the date of its acquisition, the formal or legal assimilation is
brought about only by Parliamentary Legislation made either under this article when the acquired
territory is established as a new State of the Union, or when the acquired territory is merged into
an existing State under Article 3 of the Constitution.”
The expression “admit” refers to the admission of a state already in existence as a ‘state’ i.e. duly
organized political community. The term “establish” refers to the creation of a state where none
existed before.
A new state may be admitted into the union in any of the following ways –
1. An inferior category such as a union territory, may be raised to the status of full state,
2. A foreign territory acquired by India may be made a state and admitted into the union,
3. A territory separated from an existing state reorganized into a full state. However, article.
2 deals with admission, etc. of new states, which may be formed of the foreign territories…
article. 2 does not refer to the territories forming part of the existing states (article. 3
provides for that).
Article. 2 confers full discretion on the parliament as to what terms should be imposed on the new
states so admitted into the union. The expression “by law” indicates that a legislative action on the
part of the parliament is required for the admission of a new state. Therefore, the acquisition of a
foreign territory by India automatically makes the said territory a part of the Indian Territory under
article. l(3)(c), but they said territory can be admitted as a ‘state,’ into the union, by the process of
law, enacted by parliament under article. 2.

Article. 3(a): formation of new states

Article. 3(a) empowers the parliament to form new states, by law. It may do so by any of the
following modes –
1. By separation of territory from any state,
2. By uniting two or more states,
3. By uniting parts of states
4. By uniting any territory to a part of any state.

The scope of this Article should be differentiated from that of the preceding article. Article 2 relates
to admission or establishment of new states which are not part of the union, while art. 3 provides
for the formation of or changes in the existing states including union territories.

It is important to note that “foreign territories” which become part of India on acquisition may:
1. Either be admitted into the union;
2. Constituted into new states under article. 2; or
3. Merged into an existing state under art. 3(a) or 3(b); or
4. Formed into a union territory.
The constitution of India does not guarantee the territorial integrity of any state of the union9.
Parliament may even cut away the entire area of the state to form a new state. When a new state is
formed by uniting two or more states, the states cannot unite in some matters and not to unite in
respect of other matters.
It may also be noted that there is nothing in the constitution which would entitle a new state, after
its formation or admission into the union, to claim complete equality of status with a state existing
at the commencement of the constitution, or formed thereafter under article. 3.

Article. 3(b) to (e): alteration of areas, boundaries or names of states

The parliament may, by law, (b) increase the area of any state, (c) diminish the area of any state,
(d) alter the boundaries of any state, and (e) alter the name of any state. The parliamentary
legislation is subject to the condition laid down in proviso to art. 3.
proviso to article 3 – “no bill for this purpose shall be introduced in either house of parliament
except on the recommendation of the president, and such a bill has to be referred by the president
to the legislature of that state for expressing its views thereon”.
The state legislature is required to express its view within a specified time period as directed by
the president. He may extend the time so specified. The parliament, however, is not bound to
accept these views. Once the bill has been referred to the concerned state legislatures, and
thereafter duly introduced in parliament, subsequent amendments seeking to make provisions
different from those contained in the original bill at the time of its introduction, are not required to
be referred again to the state legislatures (if the amendments are germane to the subject matter of
the original proposal or are not a direct negation thereof). Also, no fresh recommendation of the
president is necessary for the consideration of the proposed amendment to the bill.

THE CONSTITUTION (EIGHTEENTH AMENDMENT) ACT, 1966- This Act adds two
explanations to Article 3, incorporating the decision of the Supreme Court in the Ram Kishore
Sen v. Union of India. This case had clarified that the term ‘State’ in Article 3 includes a ‘Union
Territory’.
Explanation 1 to article. 3 – The term “state” in clauses (a) to (e) of article. 3 include a “union
territory”. But the term “state” used in proviso to article. 3 does not include a union territory (the
reason being that the union territories are under the administration of the president himself).
Explanation 2 to article. 3 – The power conferred on parliament by clause (a) of article. 3, to form
a new state, include the power to form a new union territory also.
Article. 4: Supplemental matters
Article. 4(1) directs the parliament, in case it makes a law under article. 2 or 3, to include therein
necessary provisions (supplement, incidental and consequential) for the amendment of first and
fourth schedules of the constitution[15]. The first schedule specifies the number of states which
are members of the union and their respective territories. The fourth schedule specifies the number
of seats to which each state is entitled to in the council of states.
Article. 4(2) said that laws relatable to article. 2 or 3 do not amount to constitutional amendments
for the purposes of article. 368. Thus, such laws may be passed by the parliament by simple
majority procedure (subject to the requirements laid down by proviso to article. 3) and without
going through the special majority procedure prescribed by article 368.

Cession of territory to a foreign state

The powers given to parliament to reorganize states cannot be availed of by it to cede any Indian
territory to a foreign country.
 State Under Article 12 of The Constitution Of India
Most of the Fundamental rights provided to the citizens are claimed against the State and its
instrumentalities and not against the private bodies. Art. 13(2), bars the ‘state’ from making any
‘law’ infringing a Fundamental Right. Art. 12 gives an extended significance to the term ‘state’.
Art. 12 clarifies that the term ‘state’ occurring in Art. 13(2), or any other provision concerning
Fundamental Rights, has an expansive meaning. The framers of the Constitution used the words
‘the State’ in a wider sense than what is understood in the ordinary or narrower sense. The word
‘includes’ suggests that the definition is not exhaustive. The expanding dimension of the words
‘the State’ through the judicial interpretation must be within the limitation otherwise the expansion
may go much beyond what even the framers of Article 12 may have thought of.
Article 12 reads as: In this part, unless the context otherwise requires, “the State” includes the
Government and Parliament of India and the Government and the Legislature of each of the State
and all local or other authorities within the territory of India or under the control of the Government
of India.

According to Article 12, the term ‘State’ includes:

1. The Government and Parliament of India: the term “State” includes Government of India
(Union Executive) and the Parliament of India (i.e., the Union Legislature)
2. The Government and the Legislature of a State i.e., the State Executive and the legislature
of each state.
3. All local authorities; and
4. Other authorities within the territory of India; or under the control of the Central
Government.

Here three important terms need to be interpreted:

Territory of India: Territory of India should be taken to mean territory of India as defined in
Article 1(3).According to Article 1(3) the territory of India shall comprise the territories of the
States, the Union Territories specified in the first schedule and such other territories as may be
acquired.
Local Authority: according to sub-section (31) of Section 3 of the General Clauses Act, 1897
“Local Authority” shall mean a municipal committee, district board, body of commissioner or
other authority legally entitled to or entrusted by the Government within the control or
management of a municipal or local fund. According to Entry 5 of the List II of 7th Schedule ‘local
government’ includes municipal corporation, improvement trust, district boards, mining settlement
authorities and other local authorities for the purpose of local self-government or village
administration. Village panchayat is also included within the meaning of the term local
authority[3]. In Mohammad Yasin v. Town Area Committee , the Supreme Court held that the
Bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an
order by the State Authority contravened Article 19(1) (g). These bye-laws in effect and in
substance have brought about a total stoppage of the wholesale dealers’ business in the commercial
sense. The Supreme Court has ruled that to be characterized as a ‘local authority’ the authority
concerned must have separate legal existence as a corporate body, it must not be a mere
government agency but must be legally an independent entity; it must function in a defined area
and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the
area. It must also enjoy a certain degree of autonomy either complete or partial, must be entrusted
by statute with such governmental functions and duties as are usually entrusted to locally like
health and education, water and sewerage, town planning and development roads, markets,
transportation, social welfare services, etc. Finally, such body must have the power to raise funds
for furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or
fees.
Other Authorities: The term ‘other authorities’ in Article 12 has nowhere been defined. Neither
in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore,
its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes
over time.
Today’s government performs a large number of functions because of the prevailing philosophy
of a social welfare state. The government acts through natural persons as well as juridical persons.
Some functions are discharged through the traditional governmental departments and officials
while some functions are discharged through autonomous bodies existing outside the departmental
structure, such as, companies, corporations etc. Hence, the term ‘other authorities’ has been
interpreted by the following judicial pronouncements in accordance with the facts and
circumstances of different cases.
In the case of University of Madras v. Santa Bai10, the Madras High Court held that ‘other
authorities’ could only indicate authorities of like nature, i.e., ejusdem generis. So construed it
could only mean authorities exercising governmental or sovereign functions. It cannot include
persons, natural or juristic. Such as, a university unless it is ‘maintained by the State’.
But in Ujjammabai v. State of U.P.11, The Court rejected this restrictive interpretation of the
expression ‘other authorities’ given by the Madras High Court and held that the ejusdem generis
rule could not be resorted to the in interpreting tis expression. In Article 12 the bodies specifically
named are the Government of Union and the States, the Legislature of the Union and States and
local authorities. There is no common genus running through these named bodies nor can these
bodies so placed in one single category on any rational basis.
In Electricity Board, Rajasthan v. Mohan Lal12, the Supreme Court held that ‘other authorities’
would include all authorities created by the constitution or statute on whom powers are conferred
by law. It was not necessary that the statutory authority should be engaged in performing
government or sovereign functions. The court emphasized that it is not material that some of the

10
[5] AIR 1954 Mad.67
11
AIR 1962 SC 1621
12
AIR 1967 SC 1857
power conferred on the concerned authority are of commercial nature. This is because under Art.
298 the government is empowered to carry on any trade or commerce. Thus, the court observed :
“ The circumstances that the Board under the Electricity Supply Act is required to carry on some
activities of the nature of trade or commerce does not, therefore give any indication that the
‘Board” must be excluded from the scope of the word ‘State’ is used in Article 12.
The next important case relating to the interpretation of the term ‘other authorities’ is, Sukhdev
Singh V. Bhagatram13, The Supreme Court, following the test laid down in Electricity Board
Rajasthan’s Case by 4:1 majority has stated that the three statutory bodies viz., LIC, ONCG & FCI
were held to be ‘authorities’ and thus fall within the term ‘State’ in Article 12. These corporations
were created by the statutes, had the statutory power to make binding rules & regulations and were
subject to the pervasive governmental control. These corporations do have independent
personalities in the eyes of law, but that does not mean that “they are not subject to the control of
the government or they are not instrumentalities of the government. The employees of these
statutory bodies have a statutory status and they are entitled to declaration of being in employment
when their dismissal or removal is in contravention of statutory provisions. The employees are
entitled to claim protection of Articles 14 and 16 against the corporations. Mathew, J., in a separate
but concurring judgement, held that the Public Corporations is a new type of institution which
sprang from the new social and economic functions of the government, and instead of classifying
it into old legal category, it should be adopted to the changing time and conditions. The State being
an abstract entity, could undertake trade or business as envisaged under Article 298 through an
agency, instrumentality or juristic person. He preferred a broader test that if the functions of the
Corporation are of public importance and closely related to governmental functions it should be
treated an agency or instrumentality of government and hence a ‘State’ within the ambit of Article
12 of the Constitution.
In simple terms, Statutory corporations are agencies or instrumentalities of the state for carrying
on trade or business which otherwise would have been carried out by the state departmentally.
Therefore it has to be seen whether a body is acting as an agency or instrumentality of the state.
The approach in Sukhdev Singh case, was reiterated with approval in R D Shetty V.
International Airport Authority14, Bhagwati, J., speaking for the Court, pointed out the
corporations acting as instrumentality or agency of government would obviously be subject to the
same limitation in the field of constitutional or administrative as the government itself, though in
the eye of the law they would be distinct and independent legal entities. If the government acting
through its officers is subject to certain constitutional and public law limitations, it must follow a
fortiori, that government acting through the instrumentality or agency of corporations should
equally be subject to the same limitations.

13
AIR 1975 SC 1331
14
AIR 1979 SC 1628
Bhagwati, J., discussed in detail various factors relevant for determining whether a body is an
instrumentality or agency of the state. These factors as they were finally summarized by him in
Ajay Hasia v. Khalid Mujib,15 are:
1. if the entire share capital of the corporation is held by the government, it would go a long way
towards indicating that the corporation is an instrumentality or authority of the government.
2. Where the financial assistance of the state is so much as to meet almost entire expenditure of
the corporation it would afford some indication of the corporation being impregnated with
government character.
3. Whether the corporation enjoys monopoly status which is state conferred or state protected.
4. Existence of deep and pervasive state control may afford an indication of that the corporation
is a state agency or instrumentality.
5. If the functions of the corporation are of public importance and closely related to government
functions it would be relevant factor in classifying a corporation as an instrumentality or
agency of government.
6. If a department of the government is transferred to corporation it would be a strong factor
supporting the inference of the corporation being an instrumentality or agency of government.
The Supreme Court ruled in the instant case that where a corporation in an instrumentality or
agency of the government, it must be held to be an authority under Article 12.However, these tests
are not conclusive or clinching, and it must be realised that it would not be stretched so far as to
bring in every autonomous body which has some nexus with the government within the sweep of
the expression. Following this approach, it was held that the international Airport Authority
constituted under the International Airport Agency Act, 1971 was an authority and, therefore,
‘State’ within the meaning of Article 12.
“The concept of the instrumentality or agency of the government is not limited to a corporation
created by statute but is equally applicable to a company or society.”

This line of approach to the meaning of other authorities has been finally confirmed in Som
Prakash Rekhi V. Union of India16. Applying the criteria laid down in the International Airport
Authority case, the Supreme Court reached the conclusion that there is enough material to hold
that the Bharat Petroleum Corporation registered as a company under the Companies Act, is State
within the enlarged meaning of Art. 12. Consequent upon takeover of Burmah Shell under the
Burmah Shell (Acquisition of Undetakings in India) Act, 1976, the right, title and interest of the
company stood transferred and vested in the Government of India. Thereafter, the Central
Government took necessary steps for vesting the undertaking in the BPC Ltd. which became the
statutory successor of the petitioner employer. Krishna Iyer, J., speaking for himself and

15
AIR 1981 SC 487
16
(1981) 1 SCC 449; AIR 1981 SC 212. In Som Prakash these factors are laid down in SCC p. 471 and in AIR at 225. It
may be noted that Krishna Iyer, J., who wrote Som Prakash opinion, was common to both the cases and since the
decision in both the cases were pronounced on the same day it is natural, that Krishna Iyer, J., fully knew what was
being said by his brother Bhagwati, J., in Ajay Hasia.
Chinnapa Reddy. J., Pathak, J. concurring, observed that the various provisions of the Act of
1976 have transformed the corporation into an instrumentality of the Central Government with a
strong statutory flavour super-added are clear indicia of power to make it an ‘authority’. Although
registered as a company under the Companies Act, the BPC is clearly a creature of the statute, a
limb of government, an agency of the State and is recognized and clothed with rights and duties
by the Statute.
In Ajay Hasia v. Khalid Mujib17, the question arose whether the Regional Engineering College,
Srinagar, established, administered and managed by a society registered under the J & K
Registration of Societies Act, was a State within the meaning of Article 12. Bhagwati, J., speaking
for the unanimous five judge-bench, reiterated that the tests for determining as to when a
corporation falls within the definition of State in Article 12 is whether it is an instrumentality or
agency of government. The enquiry must be not how the juristic person is born but why it has been
brought into existence. It is, therefore, immaterial whether the corporation is created by the statute
or under a statute. The concept of instrumentality or agency of government, is not limited to a
corporation created by the statute but is equally applicable to a company or society considering
the relevant factors as explained in the International Airport Authority case.18 Applying this
criterion, it was held that the Society registered under the J&K Registration of Societies Act was
an instrumentality or agency of the State and the Central Government, for the reason that these
governments had full control of the working of the society and the society was merely a projection.

Following the law laid down in the Ajay Hasia case19, the Indian Statistical Institute20, Indian
Council of Agricultural Research 21, Sainik School Society22, U.P. State Cooperative Land
Development Bank Ltd.23, all societies registered under the Societies Registration Act; Project
and Equipment Corporation of India Ltd., a Government of India Undertaking; Food Corporation
of India, a statutory corporation; the Steel Authority of India Ltd., a public limited company
owned, controlled and supervised by the Central Government; the Indian Oil Corporation, a
company registered under the Companies Act of 2013, a State-aided school, whose employees
enjoy statutory protection and which is subject to regulations made by the State education
department; a medical college run by a municipal corporation; several electricity boards created
on the lines of Rajasthan Electricity Board; Central Government and two State Governments; a
Government Company constituted as a development authority under a State town Planning Act;
regional rural banks established under the Regional Rural Banks Act, 1976; port trusts created

17
(1981) 1 SCC 722; AIR 1981 SC 487
18
Raman Dayanand Shetty v. International Airport Authority of India, (1979) 3 SCC 489; AIR 1979 SC 1628
19
Ajay Hasia v. Khalid Mujib, 1981) 1 SCC 722; AIR 1981 SC 487
20
B.S. Minhas v. Indian Statistical Institute,(1983) 4 SCC 582; AIR 1984 SC 363
21
P.K. Ramchandra Iyer v. Union of India, (1984) 2 SCC 141; S.M. Illyas (Dr.) v. Indian Council For Agriculture
Research, (1993) 1 SCC 182
22
All India Sainik School Employees’ Association v. Sainik Schools Society, 1989 Supp (1) SCC 205
23
U.P. State Cooperaive Land and Development Bank Ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753
under the Major Port Trusts Act, 1889 or 1963 have been held to be “other authorities” within the
meaning of Article 12.

In this expansive trend, there have been some discordant notes as well. One such example is
furnished by Tekraj Vasandi v. U.O.I., where the Supreme Court held the ‘Institute of
Constitutional and Parliamentary Studies’, a society registered under the Societies Registration
Act, 1860, as not being an ‘authority’ under Article 12, The Institute is a registered society
receiving grants from the Central Government and having the President of India, Vice-President
and the Prime Minister among its honorary members. The Central Government exercises a good
deal of control over the Institute. Inspite of the government funding and control, the court has
refused to hold it as an authority.

On the same basis, in the case of Chandra Mohan Khanna v. NCERT24, NCERT, has been held
to be outside the scope of Article 12. NCERT is a society registered under Societies Registration
Act. It is largely an autonomous body; its activities are not wholly related to governmental
functions; governmental control is confined mostly to ensuring that its funds are properly utilized;
its funding is not entirely from government sources.
Another example of the expansive interpretation of the expression ‘other authorities’ in Art. 12 is
furnished by the decision of the Supreme Court in Pradeep Kr. Biswas V. Indian Institute of
Chemical Biology25. In this case, the Supreme Court held that the Council of Scientific and
Industrial Research (CSIR) is an authority under Art. 12 and was bound by Art. 14. The Court has
ruled that the “Control of the Government in CSIR is ubiquitous. The court has now laid down the
following proposition for identification of ‘authority’ within Art. 12.
The question in each case would be – whether in the light of the cumulative facts as established,
the body is financially, functionally and administratively dominated by or under the control of the
government. Such control must be particular to the body in question and must be pervasive. If this
is found then the body is a state within Article 12. On the other hand, when control is merely
regulatory whether under statute or otherwise it would not serve to make the body a state.

IS JUDICIARY INCLUDED IN THE WORD ‘STATE’?

Unlike in U.S.A, where the judicial decision implies ‘ State action’ for the purposes of enforcement
of fundamental rights, in India the ‘judiciary’ is not specifically mentioned in Art. 12. The judicial
view is that the judgements of courts cannot be challenged on the ground that hey contravene
fundamental rights. Now, the question arises does it mean that the term judiciary is not be included
in the concept of ‘state’? The answer depends upon the distinction between the judicial and non-
judicial functions of the courts. In the exercise of the non-judicial functions, the courts fall within

24
AIR 1992 SC 76
25
(2002) 5 SCC 111
the definition of the ‘State’. The exercise of judicial functions will not occasion the infringement
of fundamental rights and, therefore, the question of bringing the courts within the definition of
the ‘state’ would not arise.

In Naresh v. State of Maharashtra 26, it was held that even if a court is thee State a writ under
Art. 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders,
because such orders cannot be said to violate the fundamental rights. What the judicial decisions
purports to do is to decide the controversy between the parties and nothing more. The court said
that the ‘judiciary’ while exercising its rule-making power under Art. 145 would be covered by
the expression ‘State’ within the meaning of Art. 12, but while performing its judicial functions, it
is not so included.
In Rupa Ashok Hurra v. Ashok Hurra 27, the apex court has re-affirmed and ruled that no judicial
proceeding could be said to violate any of the fundamental rights. It was said to be settled position
of law that the superior courts of justice did not fall within the ambit of ‘State’ or ‘other authorities’
under Art. 12.
In A. R. Antulay v. R.S. Nayak28, it was held that the court could not pass an order or issue a
direction which would be violative of the fundamental rights, thus, it can be said that the expression
‘state’ includes judiciary also.
It is submitted that the judiciary, though not expressly mentioned in Art. 12, it should be included
so, since the courts are set up by statute and exercise power conferred by law. It is so suggested
that discrimination may be brought about… even (by) judiciary. The courts, like any other organ
of the state, are limited by the mandatory provisions of the Constitution.

26
AIR 1967 SC 1
27
AIR 2002 SC 1771
28
AIR 1988 SC 1531
 RIGHT TO EQUALITY UNDER ARTICLE 14 OF CONSTITUTION
Introduction
Right to Equality is the first fundamental right assured to the people of India. Article 14-18 of the
Constitution guarantees this right to every citizen of India. Equality is one of the magnificent
corner-stones of the Indian democracy. “In other constitutions generally this right embodied in
Article 14. As such this right was considered to be a negative right of an individual not to be
discriminated in access to public offices or places or in public matters generally. It did not take
account of the existing inequalities arising even from public policies and exercise of public powers.
The makers of Indian Constitution were not satisfied with such type of undertaking. They knew of
the widespread social and economic inequalities in the country sanctioned for thousands of years
by public policies and exercise of public power supported by religion and other social norms and
practices.”
They were of the opinion that only Article 14 would not be sufficient enough to deal with these
inequalities so they introduced Articles 15-18 in the Constitution along with Article 14 which deals
specifically in and expressly abolished and prohibited some of the existing inequalities. “Thus, the
right to equality in the Constitution of India is not merely a negative right not to be discriminated
against but also a positive right to be treated as an equal. Under the later aspect of the right, which
is the essence and core of the right to equality, the State is under the obligation to take necessary
steps so that every individual is given equal respect and concern which he is entitled to as a human
being.”
Article 14 embodies the idea of equality expressed in the preamble. It lays down the general
principles of equality before the law and prohibits unreasonable discrimination between the
persons. The Succeeding Articles 15, 16, 17 and 18 lays down specific applications of the general
rules laid down in Article 14. Article 14 is the equality clause because of its wide ambit and
applicability. It applies to all persons while Article 15 and others cover only citizens. Article 15
relates to prohibition of discrimination on grounds of Religion, race, caste, sex or place of birth.
Article 16 guarantees equality of opportunity in matters of public employment. Article 17
abolishes untouchability and Article 18 abolishes title.

ARTICLE 14: EQUALITY BEFORE LAW

“The state shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India.”…………………………………………………. (Art. 14)
Article 14 guarantees to every person the right to equality before the law or the equal protection
of laws. The first expression ‘equality before the Law’ which is taken from English Common
Law, is somewhat a negative concept. It is a declaration of equality of all persons within the
territory of India, implying thereby the absence of any special privilege in favor of any individual.
Every person, whatever be his rank or position, is subject to the jurisdiction of the ordinary courts.
It means no man is above law and that every person, high or low, is subject to the ordinary law of
the land. Prof. Dicey in explaining the concept of legal equality, as operating in England, said:
“With us, every official, from the Prime Minister down to a constable or collector of taxes, is under
the same responsibility for every Act done without any legal justification as any other citizen.”
The second expression, “equal protection of laws”, which is rather a corollary of the first
expression, and is based on the last clause of the first section of the Fourteenth Amendment
to the American Constitution, directs that equal protection shall be secured to all persons within
the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without
favouritism or discrimination. It is a more positive concept (as it expects a positive action from the
state) implying equality of treatment in the equal circumstances. In other words, all persons who
are in the same circumstances will be governed by the same set of rules. It is a guarantee of equal
treatment. An equal law should be applied with an equal hand to all persons who are the equals.
The rule is that the like should be treated alike and not that unlike should be treated alike. The
same or uniform treatment of unequals is as bad as unequal treatment of equals. It has been said
that the equal protection of the law is a pledge of protection or guarantee of equal laws.
Thus, the two expressions in Article 14 make the concept of equal treatment a binding principle of
State Action. In Sri Srinivasa Theatre v. Govt. of Tamil Nadu 29, the Supreme Court explained
that the two expressions equality before the law and equal protection of law do not mean the same
thing even if there may be much in common between them. Equality before the law is a dynamic
concept having many facets. One facet is that there shall be no privileged person or class and that
none shall be above law. Another facet is the obligation upon the State to bring about, through the
machinery of law, an equal society or, equality before the law can be predicated meaningfully only
in equal society.
Article 14 uses the term ‘any person’, natural or artificial, whether he is a citizen or alien, is entitled
to the protection under the provision.

EQUALITY BEFORE LAW

According to Dr. Jennings, “Equality before the law means that among equals the law should be
equal and should be equally administered, that the like should be treated alike. The right to sue and
be sued, to prosecute and to be prosecuted for the same kind of action should be same for all
citizens of full age and understanding without distinctions of race, religion, wealth, social status
or political influence.”
In State of West Bengal v. Anwar Ali Sarkar30, the Court rightly observed that the second
expression is the corollary of the first and it is difficult to imagine a situation in which the violation
of equal protection of laws will not be the violation of the equality before the law. Thus, in
substance, the two expressions mean one and the same thing.

29
(1992) 2 SCC 643
30
AIR 1952 SC 75
In Re Special Courts Bill, 197831, Chandrachud, J., observed: “The underlying principle of the
guarantee of Art. 14 was that all persons similarly circumstanced should be treated alike both in
privileges conferred and liabilities imposed.”
Rule of law- the guarantee of equality before the law is an aspect of what Dicey calls the rule of
Law in England. Rule of law requires that no person shall be subjected to harsh, uncivilized or
discriminatory treatment even when the object is the securing of the paramount exigencies of law
and order.

Prof. Dicey gave three meanings to Rule of Law, they are –

1. The absence of Arbitrary Power or Supremacy of Law – in other words, a man may be
punished for a breach of law but he can be punished for nothing else. It means the absolute
supremacy of Law as opposed to the arbitrary power of the Government.
2. Equality before the Law – it means subjection of all classes to the ordinary law of the land
administered by ordinary law courts. This means that no one is above law with the sole
exception of the monarch who can do no wrong.
3. The Constitution is the result of the ordinary law of the land – it means that the source of
the right of individuals is not the written Constitution but the rules as defined and enforced by
the Courts.
The first and second aspects apply to the Indian system but the third aspect of the Dicey’s rule of
law does not apply to Indian system as the source of rights of individuals is the Constitution of
India. The Constitution is the supreme Law of the land and all laws passed by the legislature must
be consistent with the provisions of the Constitution

EXCEPTION TO THE RULE OF EQUALITY

Under Art. 359, when the proclamation of emergency is in operation, the enforcement of Art. 14
may be suspended during that period. Art. 361 provides that president and governors shall not be
answerable to any Court for the exercise and performance of the powers and duties of the office.
They also enjoy immunity from criminal and civil proceedings until certain conditions are fulfilled.
Members of Parliament and of State Legislature are not liable in respect of anything done or said
within the House (Arts. 105 and 194). Foreign Diplomats are immune from the jurisdiction of
Courts. Art. 31 C forms an exception by excluding some laws [for implementing any of the
directive principles specified in Art. 39(b) or (c)] from the purview of Art. 14.

EQUAL PROTECTION OF LAWS

31
AIR 1979 SC 478
It is a guarantee of equal treatment. An equal law should be applied with an equal hand to all
persons who are the equals. The rule is that the like should be treated alike and not that unlike
should be treated alike. The same or uniform treatment of unequals is as bad as unequal treatment
of equals. It has been said that the equal protection of the law is a pledge of protection or guarantee
of equal laws.
The rule of law imposes a duty upon the state to take special measure to prevent and punish
brutality by police methodology. The Rule of Law embodied in Article 14 is the ‘basic feature’ of
the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution
under Article 368 of the Constitution. 32

ARTICLE 14 PERMITS REASONABLE CLASSIFICATION BUT PROHIBITS CLASS

LEGISLATION
Article 14 does not mean that all laws must be general in character or that the same laws should
apply to all persons or that every law must have universal application, for, all persons are not, by
nature, attainment or circumstances, in the same positions. The State can treat different persons
differently if circumstances justify such treatment. In fact, identical treatment in unequal
circumstances would amount to inequality. The legislature must possess the power to group
persons, objects and transactions with a view to attaining specific aims. So, a reasonable
classification is not permitted but necessary if society is to progress.
By the process of classification, the State had the power of determining who should be regarded
as a class for purposes of legislation and in relation to a law enacted on a particular subject.
Classification meant segregation in classes which had a systematic relation, usually found in
common properties and characteristics. It postulated a rational basis and did not mean herding
together of certain persons and classes arbitrarily.
The class legislation is that which makes an improper discrimination by conferring particular
privileges upon a class of persons arbitrarily selected. And no reasonable distinction can be found
justifying the inclusion of one and exclusion of other from such privilege. While Art. 14 forbids
class legislation, it permits reasonable classifications of persons, objects, and transactions by the
legislature for the purpose of achieving specific ends. In other words, what Art. 14 prohibits is
class legislation and not a classification for the purpose of the legislation.

TEST OF REASONABLE CLASSIFICATION

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects,
and transactions by the Legislature for the purpose of achieving specific ends. Classification to be
reasonable should fulfill the following two tests:

32
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
 1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible
differentia, some real and substantial distinction, which distinguishes persons or things
grouped together in the class from another left out of it.
2. The differentia adopted as the basis of classification must have a rational or reasonable
nexus with the object sought to be achieved by the statute in question.
In Re Special Courts Bill33, the Supreme Court has however warned against over-emphasis on
classification. The Court has explained that ‘the doctrine of classification is only a subsidiary rule
evolved by the courts to give practical content to the doctrine of equality, over-emphasis on the
doctrine of classification or anxious or sustained attempt to discover some basis for classification
may gradually and imperceptibly erode the profound potency of the glorious content of equity
enshrined in Art. 14 of the Constitution. The over-emphasis of classification would inevitably
result in the substitution of the doctrine of classification for the doctrine of equality.
If there are two laws covering a situation, one more drastic than the other, there is the danger of
discrimination if the Administration has the discretion to apply any of these laws in a given case.
Of the two persons placed in a similar situation, one may be dealt with under the drastic law and
the other under the softer law. To minimize any chance of such discrimination, the court insists
that the drastic law should lay down some rational and reasonable principle or policy to regulate
administrative discretion as to its application. If the drastic law fails to do so, then it will be void
under Art. 14.
This proposition was applied by the Supreme Court in Northern India Caterers V. State of
Punjab34. To evict a person from the unauthorized occupation of public premises, a Punjab Act
provided for a Summary procedure. The collector had two choices; he could either himself order
eviction under the special law, or could file an ordinary suit in a court for eviction under the general
law. The Punjab law was declared void under Art. 14 because being a drastic law it laid down no
policy to guide the collector’s choice as to which law to follow in what cases; the matter was left
to his unguided discretion and so there could be discrimination within the same class inter se, viz.,
unauthorized occupants of public premises.

In Maganlal Chhagganlal V. Greater Municipality35, the validity of certain provisions of

Bombay Municipal Corporation Act, which conferred powers on the authorities to initiate special
eviction proceedings against unauthorized occupants of Corporation and government premises was
challenged. Following the N.I. Caterers case, it was argued that the availability of two procedures,
one under the CPC and other under the two Acts of which the former was onerous and harsher
than the latter, the former was hit by Article 14 in the absence of any guidelines as to which
procedure might be adopted. The majority did not agree with the N.I. Caterers case.

33
1978(AIR 1979 SC 478)
34
AIR 1967 SC 1581
35
AIR 1974 SC 2009
Analysing the whole line of cases on the subject he drew a distinction between the statutes which
themselves make a classification and those which authorize the executive to make the
classification. While in the first case the statute will be invalid if it fails to satisfy the requirements
of Article 14 (reasonable classification), in the second case the statute is valid so as it provides
guidance to the executive about the exercise of its discretion in making the classification. Such
guidance need not be provided expressly and specifically in the provisions of the statute; it may
be gathered either from the preamble and other surrounding circumstances and facts which
necessitated the enactment of the statute or from the general object or policy or the statute gathered
from other operative provisions applicable to analogous or of the statue gathered from other
operative provisions applicable to analogous or comparable situations. If such guidance is missing,
then only the statute will be invalid. Otherwise only the act of classification by the executive will
be examined. In that case, if the classification fails to satisfy the requirements of Article 14 it will
be ultra vires not only the Constitution but also the statute under which it is undertaken.
The Court observed that it was inevitable that when a special procedure is prescribed for a defined
class of persons, such as occupiers of municipal or government premises, discretion which is
guided and controlled by the underlying policy and purpose of the legislation has necessarily to be
vested in the administrative authority to select occupiers of municipal or government premises for
bringing them within the operation of the special procedure.
In State of West Bengal V. Anwar Ali Sarkar36, was involved a Bengal law permitting setting
up of special courts for the ‘speedier trial’ of such ‘offence’, or ‘classes of offences’ or ‘cases’, or
‘classes of cases’, as the State Government might direct by a general or special order. These courts
were to follow a procedure less advantageous to the accused in defending himself than the
procedure followed by the ordinary criminal courts.
The Act was held invalid as it made no reasonable classification, laid down “no yardstick or
measure for the grouping either of persons or of cases or of offenses” so as to distinguish them
from others outside the purviews of the Act. The government had the power to pick out a case of
a person and hand it over to the special tribunal while leaving the case of another person similarly
situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to the executive
‘to discriminate’. The necessity of ‘speedier trial’ was held to be too vague, uncertain and
indefinite criterion to form the basis of a valid and reasonable classification.
On the other hand, in Kathi Ranining Rawat V. Saurashtra37, a provision practically similar to
the one involved in the Anwar Ali Case, was held valid because the Court found that a policy was
stated in the preamble to the Act and that the government was expected to select such offences,
classes of offences and classes of cases for trial in special courts as were calculated to affect public
safety, maintenance of public order, etc.

36
AIR 1952 SC 75
37
AIR 1952 SC 123
Comparing the above two cases, it would appear that the main difference in the terms of the
statutes, which resulted in different judicial verdicts as to their validity, was that the preamble in
the Saurashtra Act was more elaborately worded than that to the Bengal Act. While the term
‘speedier trial’ used in the Bengal Act to set up special courts was held to be indefinite, the words
‘public safety, etc.’ in the preamble to the Saurashtra Act were held to be more definite and as
giving a guiding principle to control administrative discretion.
In essence, therefore the difference would appear to be more of a drafting nature than of substance.
For sometimes, a new orientation is being given to Art. 14. As has been explained by Bhagwati,
J., in Bachan Singh V. State of Punjab38, Rule of law which permeates the entire fabric of the
Indian Constitution excludes arbitrariness. “Whenever we find arbitrariness or unreasonableness
there is the denial of rule of law”. Art. 14 enacts primarily a guarantee against arbitrariness and
inhibits state action, whether legislative or executive, which suffers from the vice of arbitrariness.
“Every state action must be non-arbitrary and reasonable. Otherwise, the court would strike it
down as invalid.”
This new dimension of Art. 14 transcends the classificatory principle. Art. 14 is no longer to be
equated with the principle of classification. It is primarily a guarantee against arbitrariness in state
action and the doctrine of classification has been evolved only as a subsidiary rule for testing
whether a particular state action is arbitrary or not. It a law is arbitrary or irrational it would fall
foul of Art. 14.
A common tendency in modern democracies is to confer a discretionary power on the government
or administrative officers. In order to ensure that discretion is properly exercised, it is necessary
that the statute in question lays down some norms or principles according to which the
administrator has to exercise the discretion. Many a time the statutes do not do this and leave the
administrator free to exercise his power according to his judgment. This creates the danger of
official arbitrariness which is subversive of the doctrine of equality. To mitigate this danger, the
courts have invoked Art. 14. In course of time, Art. 14 has evolved into a very meaningful
guarantee against any action of the Administration which may be arbitrary, discriminatory or
unequal.
In Air India V. Nargesh Meerza 39, a regulation made by Air India International, a statutory
corporation, providing for termination of service of an air hostess on her first pregnancy has been
held to be arbitrary and abhorrent to the notions of a civilized society. The regulation also fixed
the normal age of retirement of air hostess at 35 years but authorized the managing directors to
extend the same to 45 years at his option subject to other conditions being satisfied. The regulation
was held bad as it armed the managing director with uncanalized and unguided discretion to extend
the age of retirement of an air hostess. No guidelines, principles or norms were laid down subject
to which the power was to be exercised. Nor was there any procedural safeguards available to an
air hostess who was denied the extension.

38
AIR 1980 SC 898
39
AIR 1981 SC 1829
In J. Jayalalitha v. Union of India, Section 3 of the Prevention of Corruption Act, 1988,
empowers the State Government to appoint as many special Judges as may be necessary “for such
case or group of cases” as may be specified in the notification. The validity of this provision was
challenged under the Art. 14 on the grounds that confer unfettered, unguided and absolute
discretion on the Government and is thus capable of leading to abuse of power by the Government.
The Supreme Court has however upheld the validity of this provision. The court has agreed with
the proposition that conferment of discretionary power on the executive which in the absence of
any policy or guidelines permits it to pick and choose it unconstitutional. But, in the instant case,
the court has ruled that S. 3(1) does not confer unfettered or unguided power because the object of
the Act and S. 3 indicate when and under what circumstances, the power conferred by S. 3 has to
be exercised. The policy can be gathered from the preamble, the provisions of the enactment and
other surrounding circumstances.
One of the objects of the Act is to provide speedy trial for cases of corruption. This is the policy
of the Act and, therefore, while exercising the power under S. 3, the Government shall have to be
guided by the said policy. The Legislature could not have anticipated as to how many special
Judges would be needed in an area. Therefore, the Legislature could not have laid down any fixed
rule or guidelines. It had to leave this matter to the discretion of the State Government as it would
be in a better position to know the requirement. This is why discretion has been conferred on the
State Government to appoint as many special Judges as may be necessary.
The situation where the statute itself does not suffer from any such vice, but the administrative
authority may implement it in a discriminatory manner, or may not follow the policy or principle
laid down in the Act to regulate its discretion. In such a case, the charge of violation of equal
protection may be laid against the Administrative and its action quashed under Art. 14.
Every action of the state must be informed by reason and guided by public interest. Actions
uninformed by reason may be questioned as arbitrary. Whenever there is arbitrariness in state
action, Art. 14 springs to life and judicial review strikes such an action down. Arbitrariness is the
antithesis of Art. 14 Equality and arbitrariness are sworn, enemies. Art. 14 strikes at arbitrariness
in state action and ensures fairness and equity of treatment.
Statute based on a reasonable classification does not become invalid merely because the class to
which it applies consists of only one person. A single body or institute may form a class. A
legislation specifically directed to a named person or body would be valid if, on account of some
special circumstances, or reasons applicable to that person, and not applicable to others, the single
persons could be treated as a class by himself. The Act may, however, be bad if there are no special
circumstances differentiating the person concerned from the rest, or if other having the same
attributes are not covered by the Act.
In Chiranjit Lal Chawdhary V. Union of India40, the petitioner approached the Supreme Court
for the protection against the enforcement of a Central Act, the Sholapur Spinning and Weaving
Co. (Emergency Provisions) Act, 1950. The petitioner was an ordinary shareholder of the Sholapur

40
AIR 1950 SC 41
Spinning and Weaving Co. Ltd. On Account of mismanagement and neglect of the affairs of the
Company, a situation had arisen that brought about the closing down of the mill. The action of the
company prejudicially affected the production of an essential commodity, apart from causing
serious unemployment amongst certain sections of the community. The Central Government
thereupon issued an Ordinance which was later replaced by the above-mentioned Act. By this Act,
the management and administration of the assets of the Company were placed under the control of
the directors appointed by the government. As regards the shareholders, the Act declared that they
could neither appoint a new director not could they take proceedings for the winding up of the
Company. The contention of the petitioner was that the impugned Act infringed the rule of equal
protection of the laws embodied in Article 14 because a single company and its shareholders were
being subjected to disabilities vis-à-vis other companies and held the legislation validly.
In Ameerunnisa Case, 41 a dispute between two rival parties regarding succession to the estate of
a deceased Nawab was pending and after several vicissitudes for which the Nizam himself or his
legal advisers were primarily responsible, a report was prepared by the legal advisers of the State
in a particular way which, contrary to the opinion given by an earlier special commission,
negatived the claim of one party, i.e. of two ladies and their children. To give effect to the report,
the Nizam, who at that time exercised the powers of the Hyderabad Legislature, passed an Act, the
Wali-ud-Dowla Succession Act, 1950. By this Act, the claim of the two ladies was dismissed and
the property adjudged to the other party. Obviously, the effect of the Act was that the two ladies
and their children were deprived of the right to enforce their claim in a court of law in accordance
with the Mohammedan Law. They, in fact, were discriminated against the rest of the community
in respect of a valuable right which the law secures to all, namely, the right of free access to the
court.
The discrimination made against the two ladies could only be valid if there were some reasonable
ground for the differentiation made by the law. Two reasons were put in justification of the
classification or differentiation made by the Act. First, that there was an adverse report against
them by the State legal advisers and, second, that the dispute was of a long standing. The Supreme
Court held that neither of these grounds could serve as a reasonable basis for the differentiation
made by the law. As regards the first, the dispute regarding succession to the estate of the Nawab
was a legal dispute, and without determination of the points in issue by a properly constituted
tribunal of law, a legislation based upon the reports of a non-judicial authority and made applicable
to specific individuals, who were deprived thereby of valuable rights, which were enjoyed by all
other persons occupying the same position, did plainly come within the constitutional inhibition
of Article 14.
If the legislature makes the report of the legal adviser as the ground on which it deprives one
specific person of his rights to have his say in a court of law, that law would be arbitrary and
unreasonable. The second ground put in support of the classification was also rejected. The Court
pointed out that the continuance of a dispute even for a long period of time between two sets of
rival claimants to the property of a private person is not a circumstance of such an unusual nature
as would invest a case with special or exceptional features and made it a class by itself justifying

41
Ameerunnisa Begum v. Mahboob, AIR 1953 SC 91
its differentiation from all other cases for succession disputes. Thus there was nothing to
distinguish the dispute between the parties under the Wali-ud-Dowla Act which is not found in
any other dispute between private parties.
In Ram Prasad V. State of Bihar42, the two appellants had obtained a settlement of land in Bihar
which at that time was under the management of the Court of Wards on behalf of the disqualified
proprietress. The lands were settled at the prevailing rate or rent but the salami or premium was
fixed at the half of the usual rate as a concession to the appellants who happened to be distant
relations of the proprietress. For some reasons, there was an agitation amongst the tenants of the
locality against the lease held by the appellants. The matter was brought to the notice of the
Congress Working Committee which found the settlement illegal and against the public interest.
The lessees, therefore, were asked to vacate the land which they refused. Thereupon the Bihar
State Legislature passed the impugned Act.
The Act terminated the contract of lease and directed the lessees to quit the land immediately. The
lessees contended the Act was unconstitutional because it denied o them the equal protection of
laws. The Supreme Court accepted the appellants’ contention and held the Act ultra vires the Bihar
Legislature because it appeared that there were numerous persons occupying the same position as
the Alternatively, the dispute being between private parties, it was a matter for determination by
duly constituted courts in accordance with the normal procedure. But what the legislature had done
was to single out the two individuals and denied them the right which every Indian Citizen
possesses to have his rights adjudicated in accordance with the laws. The reasons given for the
extraordinary procedure were indeed remarkable for ‘their disturbing implications’.
It was said that the agitation amongst the tenancy of the locality and opposition on the part of
persons living in the locality against the appellants’ possession of the land had led to the breach of
peace and institution of criminal cases. This could not be a rational basis to discriminate against
the two named individuals. When on the face of a statute there is no classification at all and no
attempt has been made to select any individual or group with reference to any differentiating
attribute peculiar to that individual or group and not possessed by other, this presumption is of
little or no assistance.
These and some other cases seem to establish that except in Charanjit Lal case, the singling out of
the individuals has never been seen with favor, particularly when such singling out has been done
for the purpose of hostile discrimination. As a matter, of course, single person laws are prima facie
violative of Article 14 because they do not make a classification on the basis of some general or
particular characteristics which may be found in any individual or class of individuals now or in
future; rather they make one individual their target excluding every possibility of bringing any
other person within their reach even if that other person also depicts those characteristics.

42
AIR 1953 SC 215
 RESERVATION: UNDER ARTICLES 15 AND 16 OF THE CONSTITUTION
Reservation in simple language implies to an act of withholding, reserving or keeping back some
of the seats for the upliftment of status and standard of living of socially and educationally
backward sections, classes or groups. Reservation in Indian law is a form of affirmative action
whereby a percentage of seats are reserved in the public sector units, union and state civil services,
union and state government departments and in all public and private educational institutions,
except in the religious/ linguistic minority edu-cational institutions, for the socially and
educationally backward communities and the Scheduled Castes and Tribes who are inadequately
represented in these services and institutions.
The major reason for the inclusion of reservation scheme in Indian Constitution is that the framers
of the Constitution believed that, due to the caste system, SCs and the STs were historically
oppressed and denied respect and equal opportunity in Indian society and were thus under-
represented in nation-building activities. Thus, to enhance their standards this scheme was made a
provision under Article 15 and 16 as follows:
Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth. -
 The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, and place of birth or any of them.
 No citizen shall, on grounds only of religion, race, caste, sex place of birth or any of them, be
subject to any disability, liability, restriction or condition with regards to-
1. access to shops, public restaurants, hotels and places of public entertainment; or
2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
 Nothing in this article shall prevent the State from making any special provision for women
and children.
 Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and Scheduled Tribes.
 Nothing in this Article or in sub-clause (g) of clause (1) of article 19 shall prevent the state
from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the scheduled castes or scheduled tribes in so
far as such special provisions relate to their admission to educational institutions including
private educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30.
“Article 14 embodies the general principle of equality before the law. A specific application of the
same principle is provided in Article 15. Article 15 concretises and enlarges the scope of Article
14. It prohibits certain classifications even though they may be justified under Article 14 and
expressly asks for making certain classifications which may be impliedly be within the reach of
Article 14.”
Article 15(1) would have come in the way of making favourable provisions for backward sections
of society. Clause (1) prohibits the State from discriminating against citizens on grounds only of
religion, race, sex, caste, and place of birth or any of them. The right guaranteed in clause (1) is
conferred on a citizen as an individual and is available against his being subjected to discrimination
in the matter of rights, privileges and immunities pertaining to him as a citizen generally.
The Supreme Court in Nain Sukh Das v. State of U.P.43, invalidated an Act of the State
Legislature which provided for elections on the basis of separate electorates for members of
different religious communities.
In D.P. Joshi v. State of Madhya Pradesh 44, the Supreme Court held that a law which
discriminates on the ground of residence does not infringe Article 15. Place of birth is distinct from
residence.
Restriction provided in Clause (2) will apply only if the places mentioned in the Clause are either
maintained wholly or partly out of State funds or dedicated to the use of the general public.
Accordingly, a private well or tank does not come within the meaning of this clause. A burial
ground shall be a place of public resort if it is maintained wholly or partly by the State, and shall
be open for all. Where a place of public resort is not maintained by the State, it must be dedicated
by the owner to the use of general public. Places of public resort are places which are frequented
by the public like a public park, a public road, a public bus, ferry, public urinal or railway, a
hospital, etc. Even before the commencement of the Constitution in Laksmidhar Mishra v.
Rangalal45, the Privy Council held that there cannot be a dedication only to a limited section of
the public like the inhabitants of a village, though such a right can be claimed on the basis of
custom.
On grounds only – Attention is drawn to the word ‘only’ in Clause (1) and (2) of Article 15, viz.
the State shall to discriminate against any person on grounds only of religion, race caste, sex, place
of birth or any of them. It is the effect or operation of the statute which is the determining factor
and not its purpose or motive. Accordingly, the court should hold a law repugnant to the guarantee
given by Article 15(1) if, as a result of the law, a person is denied any right or privilege solely
because of his religion, caste, race, sex or place of birth.
Clause (1), (2) and (3) together it will follow that while there can be no discrimination in general
on the ground of sex, special provision in the case of women and children are permissible. Thus it
would be no violation of Article 15 if institutions are set up by the State exclusively for women or
places are reserved for women at public entertainments or in public conveyances.
Clause (4) was added by the Constitution (First Amendment) Act, 1951 as a result of the decision
of the Supreme Court in State of Madras V. Champakam Dorairajan 46. In that case the Court
struck down the communal G.O. of the Madras Government which, with the object to help the

43
AIR 1953 SC 384
44
AIR 1955 SC 334. See also Arun v. State of Karnataka, AIR 1977 Kar. 174
45
AIR 1950 PC 56: 76 IA 271
46
AIR 1951 SC 226
backward classes, had fixed the proportion of students of each community that could be admitted
into the State medical and engineering colleges. Although the Directive Principles of State Policy
embodies in Article 46 of the Constitution lays down that the State should promote with special
care the educational and economic interests of the weaker sections of the people and protect them
from social injustice, the court held that “the Directive Principles of State Policy have to conform
to and run as subsidiary to the Chapter of Fundamental rights”. Now clause (4) enables the State
to make special provisions for the advancement of socially and educationally backward classes of
citizen or for the Scheduled Castes and Scheduled Tribes. Such provisions include reservations or
quotas and can be made in the exercise of executive powers without any legislative support.
The two most contentious issues in the application of Article 15(4) as well as Article 16(4)
have been: (i) determination of backward classes and (ii) extent or quantum of reservation.
Although Article 16(4) does not qualify ‘backward class of citizens’, as does Article 15(4), by the
words ‘socially and educationally’, the problem of determining such classes is similar under both
the provisions.
From the several judicial pronouncements concerning the definition of backward classes, several
propositions emerge. First, the backwardness envisaged by Art. 15(4) in both social and
educational and not either social or educational. This means that a class to be identified a backward
should be both socially and educationally backward.
In Balaji47, the Court equated the “social and educational backwardness” to that of the “Schedule
Castes and Schedule Tribes”. The Court observed: “It was realized that in the Indian society there
were other classes of citizens who were equally, or may be somewhat less, backward than the
Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to
be made even for them.”
Secondly, poverty alone cannot be the test of backwardness in India because by and large people
are poor and, therefore, large sections of population would fall under the backward category and
thus the whole object of reservation would be frustrated.
Thirdly, backwardness should be comparable, though not exactly similar, to the scheduled Castes
and Scheduled Tribes.
Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the sole or even
the dominant criterion. If classification for social backwardness were to be based solely on caste,
then the caste system would be perpetuated in the Indian society. Also this test would break down
in relation to those sections of society which do not recognize caste in the conventional sense as
known to the Hindu Society.
Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such factors
cannot be ignored.

47
M.R. Balaji v. State of Mysore, AIR 1963 SC 649
Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court has
emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and that ‘caste’ and
‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not
vitiate classification if it satisfies other tests.
In M.R. Balaji v. State of Mysore 48, it was held that the caste of a group of persons cannot be the
sole or even predominant factor though it may be a relevant test for ascertaining whether a
particular class is a backward class or not. Backwardness under Article 15(4) must be social and
educational, and that social backwardness is, in the ultimate analysis, the result of poverty. One’s
occupation and place of habitation could be the other relevant factors in determining social
backwardness. The Court invalidated the test of backwardness which was based predominantly, if
not solely, on caste.
In this case the validity of a Mysore Government Order reserving 68 per cent of the seats in the
engineering and medical colleges and other technical institutions in favour of backward classes
including the Scheduled Castes and Scheduled Tribes was challenged. The Supreme Court
characterized Art. 15(4) as an exception to Art. 15(1) [as well as to Art. 29(2)]. The Court held:
“A special provision contemplated the Article 15(4) like reservation of posts and appointments
contemplated by Article 16(4) must be within reasonable limits. In this matter again, we are
reluctant to say definitely what would be provision should be less than 50 per cent; how much less
than 50 per cent would depend upon the relevant prevailing circumstances in each case.”
Reservation of 68 per cent of seats in that case was found by the Court plainly inconsistent with
Article 15(4).
In the State of U.P. V. Pradeep Tandon49, in admission to medical colleges in U.P. in favour of
candidates from- (a) rural areas, (b) hill areas and (c) Uttrakhand area was challenged. The
classification was based on geographical or territorial considerations because in governments view
the candidates from these areas constituted socially and educationally backward classes of citizens.
The Court held that the accent under Article 15(4) was on classes of citizens and the Constitution
did not enable the State to bring socially and educationally backward areas within the protection
of Article 15(4). It was emphasized that the backwardness contemplated under Article 15(4) was
both social and educational and the socially and educationally backward classes of citizens were
groups other than the groups based on castes. The traditional unchanging conditions of citizens
could contribute to social and educational backwardness. The place of habitation and its
environment could be a determining factor in judging the social and educational backwardness.
The Court upheld reservations for persons from hill and Uttrakhand areas. It was found that the
absence of means of communication, technical processes and educational facilities kept the poor
and illiterate people in the remote and sparsely populated areas backward. However, reservation
of seats for rural areas was invalidated because the division of the people on the ground that the
people in the rural areas were poor and those in the urban areas were not, was not supported by the

48
AIR 1963 SC 649
49
(1975) 1 SCC 267: AIR 1975 SC 563. See also Arti Sapru v. State of J& K, AIR 1981 SC 1009
facts. Further, the rural population was heterogeneous and not all of them were educationally
backward.
The question was again considered in Jayasree v. State of Kerala 50, where the Supreme Court
was called upon to determine whether the constitutional protection could be extended to a person
who belonged to a backward community but the family’s income exceeded the prescribed limit of
certain amount per annum. The court held that in ascertaining social backwardness of a class of
citizens, it may not be irrelevant to consider the caste of group of citizens. Castes cannot, however,
be made the sole or dominant test as social backwardness which results from poverty is likely to
be aggravated by considerations of caste. This shows the relevance of both caste and poverty in
determining the backwardness of the citizens but neither caste alone nor poverty alone can be the
determining test of social backwardness. It was, therefore, held that the impugned order
prescribing the income limit was valid, as the classification was based not on income but on social
and educational backwardness. IT was recognized that only those among the members of the
mentioned castes, whose economic means were below the prescribed limit were socially and
educationally backward, and the educational backwardness was reflected to a certain extent by the
economic conditions of the group.
Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for SCs and STs and
27 per cent for SEBCs) in the Mandal Commission case51, the Court held that barring any
extraordinary situation Court mentioned of a far-flung remote area whose population needs special
treatment for being brought into the mainstream. For such cases the Court suggested extreme
caution and making out of a special case. The 50 per cent limit does not include those members of
SEBCs who get selected on their own merit. They are entitled to get adjusted against the open
category. The 50 per cent limit, however, applies to all reservations, including those which can be
made under Article 16(1), i.e., altogether the reservation should not exceed 50 per cent limit. But
this limit applies only to reservations and not to exemption, concessions and relaxations. Therefore
50 per cent limit may not apply to many situations under Article 15(4) and 16(4). For the
application of 50 per cent rule a year should be taken as the unit and not the entire strength of the
cadre service or the unit, as the case may be. So long as this limit is observed, carry forward rule
is permissible.
The policy of reservation has to be operated year-wise and there cannot be any such policy in
perpetuity. The State can review from year to year the eligibility of the class of socially and
educationally backward class of citizens. Further, it has been held that Art. 15(4) does not mean
that the percentage of reservation should be in proportion to the percentage of the population of
the backward classes of the total population.
The Court in the Mandal Commission case52 has clearly held that Article 15(4) and 16(4) are not
exceptions to clauses (1) and (2) of those articles or to Article 14. They are rather the means of
achieving the right to equality enshrined in those articles.

50
AIR 1976 SC 2381
51
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477
52
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477
Following the Court’s direction the Centre and the States have appointed backward class
commissions for constant revision of such classes and for the exclusion of creamy layer from
amongst them. Unreasonably high standards for determining the creamy layer have been
invalidated and wherever any government has failed to implement the requirement of appointing
a commission and exclusion of creamy layer it has issued necessary directions compelling them to
do so.
In Jagdish Saran V. Union of India53, a rule reserving 70 per cent of the seats in the post-graduate
medical course to Delhi University medical graduates and keeping 30 per cent open to all,
including the Delhi University graduates, was challenged by a medical graduate from Madras
University as violating Article 14 and 15. Though the rule was not invalidated in view of imperfect,
scanty, fragmentary and unsatisfactory materials, Krishna Iyer, J., explained that (i) where the
aspiring candidates are not an educationally backward class, institution-wise segregation or
reservation has no place in Article 15; (ii) equality is not negated or neglected where special
provisions are made with the larger goal of the disabled getting over their disablement consistently
with the general good and individual spirit; (iii) exceptional circumstances cannot justify making
of reservations as a matter of course in every University and in every course; (iv) the quantum of
reservation should not be excessive or societally injurious, measured by the overall competency of
the end product, viz., degree holders; (v) the burden is on the party who seeks to justify the ex-
facie deviation from equality. Speaking generally, Krishna Iyer, J. asserted that unless there is a
vital nexus with equal opportunity, broad validation of university-based reservation cannot be built
on the vague ground that all universities are practicing it, or that medical graduates resorted to
hunger strike to press for higher percentage of reservation of seats.

Article 16. Equality of Opportunity in matters of public Employment. :-

 There shall be quality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
 No citizen shall, on grounds only of religion, race, caste, sex, descent place of birth, residence
or any of them, be ineligible for, or discriminated against in respect of, any employment or
office under the State.
 Nothing in this article shall prevent Parliament from making any law prescribing, in regard to
a class or classes of employment or appointment to an office under the Government of , or any
local or other authority within, a State or Union territory, any requirement as to residence
within that State or Union territory prior to such employment or appointment.
 Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the service under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in
matters of promotion, with consequential seniority, to any class or classes of posts in the services

53
AIR 1980 SC 820
under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion
of the State, are not adequately represented in the service under the State.
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a
year which are reserved for being filled up in (4) or Clause (4-A) as a separate class of vacancies
to be filled up in any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for determining the ceiling
fifty per cent reservation on total number of vacancies of that year.
 Nothing in this article shall affect the operation of any law which provides that the incumbent
of an office in connection with the affairs of any religious or denominational institution or any
member of the governing body thereof shall be a person professing a particular religion or
belonging to a particular denomination.
Article 16 is an instance of the application of the general rule of equality before law laid down in
Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the opportunity
for employment or appointment to any office under the State. Explaining the relative scope of
Articles 14, 15 and 16. Das, J., said:
“Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same
right in favour of citizens in some special circumstances. Article 15 is more general than Article
16, the latter being confined to matters does not mention descent as one of the prohibited grounds
of discrimination as Article 16 does.”54
This relationship has been further emphasised in State of kerala v. N.M. Thomas55, and the
Mandal Commission case discussed under Section 15(4) and Section 16(4).
Art. 16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely inter-connected. Art. 16(1) takes its
roots from Art. 14. An important point of distinction between Arts. 14 and 16 is that while Art. 14
applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens and not to
non-citizens. The goal of Articles 14 and 16 is limited to equality among comparable, a necessary
implication of which is permissibility of reasonable classification, having nexus with the object to
be achieved.
Art. 16 deals with a very limited subject, viz., public employment. The Scope of Art. 15(1) is much
wider as it covers the entire range of state activities. The ambit of Art. 16(2) is restrictive in scope
than that of Art. 15(1) because Art. 16(2) is confined to employment or office under the state,
meaning services under the Central and State Governments and their instrumentalities, Art. 15
being more general in nature covers many varied situations of discrimination. Further, the
prohibited grounds of discrimination under Art. 16(2) are somewhat wider than those under Art.
15(2) because At. 16(2) prohibits discrimination on the additional grounds or descent and
residence apart from religion, race, caste, sex and place of birth.

54
Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564
55
AIR 1976 SC 490
In Clause (1) the general rule is laid down hat there shall be equal opportunity for citizens in
matters relating to ‘employment’ or ‘appointment to any office’ under the State. What is
guaranteed is the equality of opportunity.
Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated
against each other in respect of any appointment or office under the State. The scope of clause (1)
of Article 16 is wider than the scope of clause (2), because discrimination on grounds other than
those mentioned in clause (2) of the Article 16 has to be weighed and judged in the light of the
general principles laid down in clause (1).
Under Clause (3) Parliament is competent to regulate the extent to which it would be permissible
for a State to depart from the law laid down in clause (2). It is Parliament alone which can prescribe
such conditions, and that too in regard to State and not the Union appointments.
Explaining the nature of Art. 16(4), the Supreme Court has stated that it is “an enabling provision”
conferring a discretionary power on the state for making any provision or reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the state,
is not adequately represented in the service of the state. Art. 16(4) neither imposes any
constitutional duty nor confers any Fundamental Right on any one for claiming reservation.
The equality of opportunity guaranteed by Art. 16(1) is to each individual citizen of the country
while Art. 16(4) contemplates special provision being made in favour of the socially disadvantaged
classes. Both must be balanced against each other. Neither should be allowed to eclipse the other.
Accordingly, the rule of 50% reservation in a year should be taken as a unit and not the entire
strength of the cadre, service or the unit as the case may be.
In Devadasan case56, the Supreme Court was required to adjudge the validity of the carry forward
rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be reserved for
Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want of suitable
candidates from those classes, then the shortfall was to be carried forward to the next year and
added to the reserved quota for that year, and this could be done for the next two years. The result
of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the
reserved quota and only 16 posts were left for others. This meant reservation upto 65% in the third
year, and while candidates with low marks from the Scheduled Castes and Scheduled Tribes were
appointed, candidates with higher marks from other classes were not taken.
Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per cent
reservation of posts in a single year would be unconstitutional as it per se destroys Art. 16(1). The
Court emphasized that in the name of advancement of backward communities, the Fundamental
Rights of other communities should not be completely annihilated. The Court held that as Article
16(4) was a proviso or an exception to Art. 16(1), it should not be interpreted so as to nullify or
destroy the main provision, as otherwise it would in effect render the guarantee of equality of
opportunity in the matter of public employment under Art. 16(1) wholly illusory and meaningless.

56
Devdasan v. Union of India, AIR 1964 SC 179; B.N. Tewari v. Union of India, AIR 1965 SC 1430
The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the making of a
reasonable number of reservations of appointments and posts in certain circumstances. A
‘reasonable number’ is one which strikes a reasonable balance between the claims of the backward
classes and those of other citizens.
The Court emphasized that each year of recruitment has to be considered by itself and the
reservation for backward communities should not be as excessive as to create a monopoly or to
disturb unduly the legitimate claims of other communities.
In State of Kerala V. N.M. Thomas57, the Supreme Court held that it was permissible to give
preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In this case
in a dissenting opinion, Subba Rao, J., had express the opinion that Art. 16(4) was not an exception
to Art. 16(1), but was a legislative device by which the framers of the Constitution had sought to
preserve a power untrammelled by the other provisions of the Article. It was a facet of Art. 16(1)
as “it fosters and furthers the idea of equality of opportunity with special reference to under
privileged and deprived classes of citizens.
The majority accepted this view of Subba Rao, J. Accordingly, and the Court observed: Art. 16(4)
is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which fosters and furthers
the idea of equality of opportunity with special reference to an under privileged and deprived class
of citizens. Thus, Art. 16(1) being a facet of the doctrine of equality enshrined in Art. 14 permits
reasonable classification just as Art. 14 does. The majority ruled that Art. 16(4) is not an exception
to Art. 16(1). Art. 16(1) it permits reasonable classification for attaining equality of opportunity
assured by it.
Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater concessions
to SC, ST and other backward persons. If the Supreme Court had stuck to the view propagated in
earlier cases that Art. 16(4) was an exception to Art. 16(1), then no reservation for any other class,
such as army personnel, freedom fighters, physically handicapped, could have been made in
services.
The fact situated in Thomas was that the Kerala Government made rules to say that promotion
from the cadre of lower division clerks to the higher cadre of upper division clerks depended on
passing a test within two years. For SCs and STs, exemption could be granted for a longer period.
These classes were given two extras years to pass the test. This exemption was challenged as
discriminatory under Art. 16(1) on the ground that Art. 16 permitted only reservation in favour of
backward classes but it was not a case of reservation of posts for SCs and STs under Article 16(4)
and that these persons were not entitled to any favoured treatment in promotion outside Art. 16(4).
By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a facet of Art.
14, would permit reasonable classification and, thus, envisaged equality between the members of
the same class of employees but not equality between members of a separate, independent class.
Classification on the basis of backwardness did not fall within Art. 16(2) and was legitimate for
the purposes of Art. 16(1). Giving preference to an under-represented backward community was

57
AIR 1976 SC 490
valid and would not contravene Arts. 14, 16(1) and 16(2). Art. 16(4) removes any doubt in this
respect. The classification of employees belonging to SC and ST for allowing them an extended
period of two years for passing the special tests for promotion is a just and reasonable classification
having rational nexus to the object of providing equal opportunity for all citizens in matters relating
to employment or appointment to public office.
The majority adopted a very liberal attitude in Thomas as regards SCs and STs and backward
classes. The result of the pronouncement is to enable the state to give the backward classes a
preferential treatment in many different ways other than reservation of posts as envisaged in Art.
16(4). Preferential treatment for one is discriminatory treatment for another and, therefore, it is
necessary to draw a balance between the interests of the backward classes and the other classes.
The Supreme Court has shown consciousness of this danger and, therefore, has laid down a few
criteria which a classification must fulfil, viz.:
1. the basis of the classification has to be backwardness;
2. the preferential treatment accorded to backward classes has to be reasonable and must have
a rational nexus to the object in view, namely, adequate representation of the under-
represented backward classes;
3. The overall consideration of administrative efficiency should be kept in view in giving
preferential treatment to the backward classes.
It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had been
taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover the entire
field covered by Arts. 16(1) and (2) and some of the matters relating to employment in respect of
which equality of opportunity is guaranteed by Arts. 16(1) and (2) do not fall within Art. 16(4).
In Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India58, the Supreme Court
again went into the question of reservation in public services vis-à-vis Art. 16. The Court upheld
reservation of posts at various levels and making of various concessions in favour of the members
of the SC and ST.
The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may classify,
“based upon substantial differentia, groups or classes” for recruitment to public services and “this
process does not necessarily spell violation of Article 14 to 16”
Art. 16(2) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes within
the ordinary meaning of caste. These are backward human groups. There is a great divide between
these persons and the rest of the community.
Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of
reservation (17½%) in railway services for SC and ST was held not excessive and the field of
eligibility was not too unreasonable. The carry forward rule for three years was held not bad.

58
(1981) 1 SCC 246: AIR 1981 SC 298
Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of posts.
This was upheld with the remark that figures on paper were not so important as the facts and
circumstances in real life which showed that the quota was never fully filled. But this fixation was
subject to the rider that, as a fact, in any particular year, there would not be a substantial increase
over 50% in induction of reserved candidates. Here the Court took the actual facts, rather than the
paper rules, into consideration.
In Indra Sawhney59, the Supreme Court has taken cognizance of many complex but very
momentous questions having a bearing on the future welfare and stability of the Indian Society.
The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion dealing with
various aspects of the reservation problem. Basically reservation in government services, is anti-
meritocracy, because when a candidate is appointed to a reserved post it inevitably excludes a
more meritorious candidate. But reservation is now a fact of life and it will be the ruling norm for
years to come. The society may find it very difficult to shed the reservation rule in the near future.
But the Court’s opinion has checked the system of reservation from running riot and has also
mitigated some of its evils.
Three positive aspects of the Supreme Court’s opinion may be highlighted:

 the over-all reservation in a year is now limited to a maximum of 50%.

 amongst the classes granted reservation, those who have been benefited from reservation and
have thus improved their social status (called the ‘creamy layer’ by the Court), should not be
allowed to benefit from reservation over and over again. This means that the benefit of
reservation should not be misappropriated by the upper crust but that the benefit of reservation
should be allowed to filter down to the lowliest so that they may benefit from reservation to
improve the position.
 Three, an element of merit has now been introduced into the scheme of reservation. This has
been done in several ways, e.g.:
1. promotions are to be merit-based and are to be excluded from the reservation rule;
2. certain posts are to be excluded from the reservation rule and recruitment to such posts is
to be merit based;
3. Minimum standards have to be laid down for recruitment to the reserved posts. IN facts,
the Courts has insisted that some minimum standards must be laid down even though the
same may be lower than the standards laid down for the non-reserved posts.
In his opinion in Indra Sawhney, Jeevan Reddy, J., has emphasized upon the member of a
backward class reaching an “advanced social level or status”, he would no longer belong to the
backward class and would have to be weeded out. The Court has opined that exclusion of creamy
layer, i.e., socially advanced members, will make the class a truly backward class and would more
appropriately serve the purpose and object of Art. 16(4). Jeevan Reddy, J., has stated that there are
sections among the backward classes who are highly advanced socially and educationally, and
they constitute the forward section of the community. These advanced sections do not belong to

59
Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217
the true backward class. “After excluding them alone, would be the class be a compact class. In
fact, such exclusion benefits the truly backward.”
Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of social
advancement and not on the basis of economic interest alone. It is difficult to draw a line where a
person belonging to the backward class ceases to be so and becomes part of the ‘creamy layer’.
In Ashoka Kumar Thakur v. State of Bihar60, the Supreme Court has assessed the validity of
unrealistically high levels of income or holdings of other conditions prescribed by the Legislatures
of UP and Bihar as criteria to identify the creamy layer. For example, while the Supreme Court in
the Mandal case has categorically said that the Children of IAS or IPS, etc. without anything more
could not avail the benefit of reservation, in the scheme drawn in UP and Bihar, a few more
conditions were added for falling in the creamy layer, such as, he/she should be getting a salary or
Rs. 10,000/- p.m. or more; the wife or husband to be a graduate and owing a house in an urban
area. OR, if a professional doctor, surgeon, lawyer, architect, etc., he should be having an income
not less than Rs. 10 lakh, his/ her spouse is a graduate and having family property worth Rs. 20
Lakhs. Similar conditions were added in case of others, such as, traders, artisans, etc.
The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that these
conditions laid down by the two States have no ‘nexus’ with the object sought to be achieved. The
criterion laid down by the two States to identify the creamy layer are violative of Art. 16(4), wholly
arbitrary, violative or Art. 14, and against the law laid down by the Supreme Court in the Mandal
case, where the Court has expressed the view that a member of the All India Service without
anything more ought to be regarded as belonging to the “creamy layer”.

60
(1995) 5 SCC 403
 CASE ANALYSIS OF INDIRA SAWHNEY V. UOI

DATE OF JUDGMENT: 16 /11/1992

BENCH: M KANIA, M VENKATACHALIAH, S R PANDIAN, A.M. AHMADI, K SINGH,
S.B.SAWANT, R SAHAI, B J REDDY, T.K. THOMMEN,
CITATION: AIR 1993 SC 477, 1992 Supp 2 SCR 454
STATUTES REFERRED: Constitution of India
Article 15(4): Nothing in this article or in clause (2) of article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16 (1): There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
Article 16(4): Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.
Article 340(1):The President may by order appoint a Commission consisting of such persons as
he thinks fit to investigate the conditions of socially and educationally backward classes within the
territory of India and the difficulties under which they labour and to make recommendations as to
the steps that should be taken by the Union or any State to remove such difficulties and to improve
their condition and as to the grants that should be made for the purpose by the Union or any State
and the conditions subject to which such grants should be made, and the order appointing such
Commission shall define the procedure to be followed by the Commission.
CASES REFERRED:
 Balaji v. State of Mysore AIR 1963 SC 649
 State of Kerala v. N.M. Thomas AIR 1976 SC 490
 Devadason v. Union of India AIR 1964 SC 179
STATEMENT OF FACTS:
 On January 1, 1979, the Government headed by the PM Sri Moraji Desai appointed the second
Backward Classes commission u/a 340 of the Constitution to investigate the SEBCs within the
territory of India and recommend steps to be taken for their advancements.
 The commission submits its report in December 1980 and identified 3743 castes as socially
and educationally backward classes and recommend a reservation for their 27 % Government
jobs for them.
 Due to internal dissensions, Janta Government collapsed and Congress party headed by PM
Smt. Indira Gandhi came to power at the center. The Congress government didn’t implement
the commission report till 1989.
 In 1989 the Congress party defeated and Janta government again came to power and issued
Office Memoranda to implement the commission report as it promised to the electorate. After
passing this memorandum threw the nation into turmoil and a violent anti-reservation
movement rocked the nation for three months resulting in huge loss of persons and property.
 On 1 October 1990 a writ petition on behalf of the Supreme Court Bar Association was filled
challenging the validity of the O.M. and for staying its operation. The five-judge bench of the
court stayed the operation of OM till the final disposal of the case.
 Unfortunately, the Janta Government again collapsed due to defections and Congress party
again came to power at the centre headed by P.V. Narasimha Rao issued another O.M. on
September 25, 1991 by introducing the economic criterion in granting reservation by giving
preference to the poorer sections of SEBCs in the 27 % quota and reserved another 10% of
vacancies for other SEBCs economically backward sections of higher caste.
OUTCOME: The five-judge bench referred the matter to a special Constitution Bench of 9 judges
in view of the importance of the matter to finally settle the legal position relating to reservation.
SUPREME COURT DECISION: The decision is given by the 6:3 majority held that the
decision of the Union Government to reserve 27% Government jobs for SEBCs provided them
Creamy layer among them eliminated is constitutionally valid. The court struck down the second
provision of Office Memoranda and held that reserving 10% Government jobs for economically
backward classes among higher caste is not valid.
ISSUE:
 WHETHER THE CLASSIFICATION IS BASED ON THE CASTE OR ECONOMIC
BASIS?
 WHETHER THE ARTICLE 16 (4) IS EXCEPTION OF ARTICLE 16 (1) OR NOT?
 WHETHER IN ARTICLE 16 (4) BACKWARD CLASSES ARE SIMILIAR AS SEBCs IN
ARTICLE 15 (4) OR NOT?
 WHETHER THE CLASSIFICATION BETWEEN BACKWARD CLASS INTO
BACKWARD OR MORE BACK WARD CLASS IS VALID OR NOT?
OPINION:
On a thorough reading of the fact of the case and its judgment, I have come to many a deduction.
This case is a landmark case on the reservation of post of BC citizens in government jobs which
describe the scope and extent of Article 16 (4).
On coming on the first issue that whether the classification is based on caste or economic basis the
court rightly held that the caste can be quite often and social class, if it is backward socially it
would be a BC for the purpose of article 16 (4) and caste alone, can’t be taken into consideration
for purpose of identification of the backward classes. The majority judges said that the neither the
Constitution nor any law prescribes the procedure or method of identification of backward classes,
nor it is possible for the courts to lay down any procedure or method, it is left to the authority
appointed to identify.
On Coming on the second issue court is well justified and held that the article 16 (4) is not an
exception to article 16(1) but an independent clause. Reservation can be made under clause (1) on
the basis of reasonable classification and overruled the decision of Balaji v. State of Mysore61
On coming on the third issue the court held that the backward classes of citizen in article 16 (4) is
not same as SEBCs referred to article 15 (4). Article 16(4) is a much wider scope and includes all
other SC, ST and all other backward class of citizens including the SEBCs.
On coming on the fourth issue the court rightly describe this approach and held that the sub
classification between backward classes and more backward classes is valid and overruled the
decision of the Balaji case. It is necessary to do sub classification otherwise advances sections of
the backward classes might take all the benefit of reservation.
In this case, the honorable court has rightly implemented this approach of understanding this article
of the constitution that the cream layer must be excluded from the backward classes. It can be best
understood by example given by the court that the if the member of a designated backward class
becomes a member of IAS or IPS or any other all India service his status in society is rising he is
no longer socially disadvantaged and it should not logical that his children should be given benefit
of reservation. The court also said that there are certain post and services to which it may not be
advisable to apply the rule of reservation. For example technical post in research & development
organization, department institution in the super specialty in medicine, engineering, physical
science, and maths, in defense service, pilots in Indian airlines, scientists and technicians in nuclear
and space etc.
The court while giving the judgment mentioned that the reservation should not exceed 50 percent
and reservation can’t be made in promotions. The court also overruled the decision of the
Devdason v. Union of India62 and held that carried forward rule is valid provided that it should
not result in breach of 50 percent rule. The 50 percent limit can only be exceeded in the extra
ordinary situations prevailing in far-flung states like Nagaland, Tripura etc. And it need be made
by parliament and legislature. The majority also made it clear that any disputes regarding can be
raised only in the Supreme Court, not in the high court and any other tribunal.
The final verdict of the case according to me was well justified. The court has made a bold attempt
to strike a balance between the interests of society and educationally backward classes and a person
belonging to the general category in matters of government employment but There was a bit
miscarriage while dealing with this case the court can also include the poor section of high castes
in SEBCs.

61
Air 1963 sc 649
62
AIR1964 SC 179
 ARTICLE 19: RIGHT TO FREEDOM
Clause (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech
and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and ‘practicing
any profession and carrying on any business’.
These various freedoms are necessary not only to promote certain basic rights of the citizens but
also certain democratic values in, and the oneness and unity of, the country. Art. 19 guarantee
some of the basic, values in, and the oneness and unity of, the country. Art. 19 guarantee some of
the basic, valued and natural rights inherent in a person.
These rights are not exhaustive of all the rights of a free man who has far more and wider rights.
The freedoms enumerated in Article 19(1) are those great and basic rights which are recognized
as the natural inherent in the status of a citizen. According to Supreme Court, it is possible that a
right does not find express mention in any clause of Art. 19(1) and yet it may be covered by some
clause therein. This gives an additional dimension to Article 19(1) in the sense that even though a
right may not be explicit, it may yet be implicit in the various clauses of Art.19.
The principle on which the power of the State to impose restriction is based is that all individual
rights of a person are held subject to such reasonable limitations and regulations as may be
necessary or expedient for the protection of the general welfare. In the words of Das, J., “social
interest in individual liberty may well have to be subordinated to other greater social interests.
Indeed, there has to be a balance between individual rights guaranteed under Article 19(1) and the
exigencies of the State which is the custodian of the interests of the general public, public order,
decency or morality and of other public interests which may compendiously be described as social
welfare.”
A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of Article 19
to be constitutionally valid, must satisfy two conditions, namely:-
1. The restriction must be for the particular purpose mentioned in the clause permitting the
imposition of the restriction on that particular right, and permitting the imposition of the
restriction.
2. The restriction must be a reasonable restriction.
It may be emphasized that the requirement that a restriction should be reasonable is of great
constitutional significance, for it acts as a limitation on the power of the legislature, and
consequently, widens the scope of judicial review of laws restraining the exercise of freedoms
guaranteed by Article 19.
Freedom of speech is essential for the proper functioning of the democratic process. The freedom
of speech and expression is regarded as the first condition of liberty. It occupies a preferred
position in the hierarchy of liberties giving succor and protection to all other liberties.
The test of reasonableness has to be applied to each individual statute impugned and no abstract
standard or general pattern of reasonableness can be laid down as applicable to all cases. The
meaning would vary according to which of the six rights guaranteed under clause (1) is being
restricted by the impugned law. Some of the principles which the Supreme Court has affirmed in
ascertaining the reasonableness of restrictions on the exercise of the rights secured under this
article.
1. Reasonableness demands proper balancing: – The phrase ‘reasonable restrictions’ connotes
that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of
an excessive nature. Legislation which arbitrarily or excessively invades any of the six freedoms
cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance
between the freedoms guaranteed under Article 19(1) and social control permitted by clauses (2)
to (6) of Article 19, it must be held to be wanting in reasonableness.
2. Reasonableness both substantive and procedural: – In determining the reasonableness of a
statute, the court would see both to the nature of the restriction and procedure prescribed by the
statute for enforcing the restriction on the individual freedom. Principles of natural justice are an
element in considering the reasonableness of a restriction where Article 19 is applicable. Absence
of provision for review makes the provisions unreasonable.
3. Reasonableness and objective concept: – The reasonableness of a restriction has to be
determined in an objective manner and from the standpoint of the interests of the general public
and not from the point of view of the persons upon whom the restrictions are imposed or upon
abstract considerations.
4. Reasonableness of restriction and not of law: – The court is called upon to ascertain the
reasonableness of the restriction and not of the law which permits the restriction. A law may be
reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.
5. Reasonableness includes total prohibition: – The word ‘restriction’ also includes cases of
prohibition and the State can establish that a law, though purporting to deprive a person of his
fundamental right, under certain circumstances amounts to a reasonable restriction only.
6. Reasonableness and American ‘Due Process’: – The Constitution framers deliberately
avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and
attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and caution has,
therefore, to be exercised before the literal application of American decisions. Our Constitution
provides reasonably precise general guidance in this matter.
7. Reasonableness and Directive Principles of State Policy: – That the restrictions are imposed
in carrying out the Directive Principles of State Policy is a point in favour of the reasonableness
of the restrictions.
8. Reasonableness of Taxes: – Prima facie a tax is not a restriction on any of the freedoms
guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it as a
restriction on one of the freedom in Article 19(1).
Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under
Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain
purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not falling within the four
corners of Art. 19(2) cannot be valid
The freedom of speech under Article 19(1) (a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film,
movie, etc. It thus includes the freedom of communication and the right to propagate or publish
opinion. But this right is subject to reasonable restrictions being imposed under Art. 19(2).
The ‘freedom of speech and expression’ includes the right to acquire information and disseminate
the same. It includes the right to communicate it through any available media whether print or
electronic or audio-visual. This freedom includes the freedom to communicate or circulate one’s
opinion without interference to as large a population in the country, as well as abroad, as is possible
to reach.
Freedom of the press is implied from the freedom of speech and expression guaranteed by Article
19(1) (a). There is no specific provision ensuring freedom of the press as such. The freedom of the
press is regarded as a “species of which freedom of expression is a genus. Thus being only a right
flowing from the freedom of speech, the freedom of the press in Indian stands on no higher footing
than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct from
freedom of the citizen.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside
the government as an additional check on the three official branches- executive, legislative and the
judiciary. It is the primary function of the press to provide comprehensive and objective
information on all aspects of the country’s social, economic and political life. The press serves as
a powerful antidote to any abuse of power by government officials and as a means for keeping the
elected officials responsible to the people whom they were elected to serve.
The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of
the press as for he benefit of the general community because the community has a right to be
supplied with information and the government owes a duty to educate the people within the limits
of its resources.
Imposition of pre-censorship on publication is, therefore, unless justified under clause (2),
violative of freedom of speech and expression. In Brij Bhushan v. State of Delhi, an order issued
under East Punjab Safety Act, directing the editor and publisher of a newspaper “to submit for
scrutiny, in duplicate, before publication ,till further orders, all communal matters and news and
views about Pakistan, including photographs and cartoons”, was struck down by the Supreme
Court observing, there can be little doubt that the imposition of pre-censorship on a journal is a
restriction on the liberty of the press which is an essential part of the freedom of speech and
expression declared by Art. 19(1)(a).
Das C.J. said in Virendra v. State of Punjab, that “It is certainly a serious encroachment on the
valuable and cherished right to freedom of speech if a newspaper is prevented from publishing its
own view or views of its correspondents”.
Freedom of speech and expression includes the freedom of propagation of ideas and is ensured by
the freedom of circulation. In Romesh Thappar v. State of Madras, the notification banning the
entry into or circulation, sale, or distribution in the State of Madras or any part of it of the
newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without liberty
of circulation, the publication would be of little value”.
The right of freedom of speech is infringed not only by a direct ban on the circulation of a
publication, but also by an action of the government which would adversely affect the circulation
of the paper. In Sakal Papers (p) ltd. v. Union of India, a government order which fixed the
number of pages and size which a newspaper could publish at a price was challenged by the
petitioners on the ground that it infringed the liberty of the press implicit in the terms of Art.
19(1)(a). The order affected the liberty of the press because its adoption would mean, the
petitioners explained, either the reduction in the existing number of pages or raising of the price.
In either case, there would be reduction in the volume or circulation of the paper and therefore a
direct violation of the liberty of the press. On behalf of the State, the law was justified as a
reasonable restriction on the business activity of a newspaper in the interests of the general public.
The Court agreed that newspapers have two aspects-dissemination of news and views and
commercial. The two aspects are different, the former falls under Art. 19(1)(a) read with Art. 19(2),
and the latter falls under Art. 19(1)(g) and can be regulated under Art. 19(6). However, the state
cannot seek to place restriction on business by directly immediately curtailing any other freedom
of the citizen guaranteed by the constitution and which is not susceptible of abridgement on the
same grounds as are set out in Art. 19(6). “Therefore, the right of freedom of speech cannot be
taken away with the object of placing restrictions on the business activities of a citizen.
The Court accepted the plea of the petitioners that the order affected the circulation and so
restrained the dissemination of news and views which a newspaper had the freedom to do. The
order was struck down and held to be inoperative. Therefore, referring the press as a business and
justifying the impugned restriction under Art. 19(6) as a proper restriction on the right to carry on
the business of publishing a newspaper “would be wholly irrelevant for considering whether the
impugned Act infringes or does not infringes the freedom guaranteed by Art. 19(1)(a).” This means
the freedom of speech cannot be restricted for the purpose of regulating the commercial aspects of
the activities of the newspapers.
Bennett Coleman & Co. v. Union of India, is a case of great significance in the area of freedom
of speech and expression. India faces a shortage of indigenous newsprint. Because of the shortage
of foreign exchange, quantity of newsprint imported was not adequate to meet all requirements.
Some restrictions, therefore, become necessary on the consumption of newsprint. Accordingly, s
system of newsprint quota for newspapers was evolved. The actual consumption of newsprint by
newspaper during 1970-71 & 1971-72, whichever was less, was taken as the base. For dailies with
a circulation up to 1,00,000 copies, 10% increase in the basic entitlement was to be granted, but
for newspapers with a larger circulation, the increase was to be only 3%. Newspapers with less
than 10 pages daily could raise the number of pages by 20% subject to the ceiling of 10. A few
more restrictions were imposed on the user of newsprint. This newsprint policy was challenged in
the Supreme Court.
By a majority, the Supreme Court declared the policy unconstitutional. While the Government
could evolve a policy of allotting newsprint on a fair and equitable basis, keeping in view the
interests of small, medium and big newspapers, the Government could not, in the grab of regulating
distribution of newsprint, control the growth the circulation of newspapers. In effect, here the
newsprint policy became the newspaper control policy. While newsprint quota could be fixed on
a reasonable basis, post-quota restrictions could not be imposed. The newspapers should be left
free to determine their pages, circulation and new editions within their fixed quota. The policy of
limiting all papers whether small or large, to 10 pages was held to be discriminatory as it treated
unequal as equals. The restrictions imposed cut at the very root of the guaranteed freedom. In the
words of the Court, “Freedom of the press is both qualitative and quantitative. Freedom lies both
in circulation and in content.”
The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot be denied
the protection of Art. 19(1)(a) merely because the same is issued by business man. “Commercial
Speech” is a part of freedom of speech guaranteed under Art. 19(1)(a). The public at large has a
right to receive the “commercial speech”. The protection of Art. 19(1)(a) is available both to the
speaker as well as the recipient of the speech.
The Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing of a
directory of telephone subscribers is to be done exclusively by the Telephone Department as a part
of its service to the telephone subscribers. But yellow pages only contain commercial
advertisements and Art. 19(1)(a) guarantee freedom to publish the same.
In LIC v. Manubhai D. Shah, the Supreme Court stated a liberal interpretation should be given
to the right of freedom of speech and expression guaranteed by Rt. 19(1)(a) . The Court has
characterized this right as a “basic human right”. This right includes “the right to propagate one’s
views through the print media or through any other communication channel, e.g. the radio and
television”. Thus, every citizen “has the right to air his or her views through the print and/or the
electronic media subject, of course, to permissible restrictions imposed under Art. 19(2) of the
Constitution.
In this case the Supreme Court has taken cognizance of two situations. One, the respondent
circulated a research article suggesting that the LIC was charging unduly high premiums from
those who took out life insurance policies. The LIC published a counter reply to this paper in a
daily newspaper and also in its own in-house magazine. The respondent then prepared a rejoinder
and got it printed in the same daily newspaper. He also wanted the LIC to print his rejoinder in
their magazine, but the LIC refused to do so. The Supreme Court was called upon to decide the
question whether the LIC was right in refusing to publish the rejoinder the responded in magazine.
Answering in the negative the court pointed out that the attitude of the LIC was both “unfair and
unreasonable”-unfair because fairness demanded that both view points were placed before the
readers and unreasonable because there was no justification for refusing publication. By refusing
to print and publish the rejoinder the LIC had violated the respondent’s Fundamental Right.
Every free citizen has an undoubted right to lay what sentiments he pleases before the public.
Freedom of speech and expression is subject only to the restrictions imposable under Art. 19(2).
Efforts by intolerant authorities to curb or suffocate this freedom must be firmly replied, more so
when public authorities betray autocratic, tendencies.
LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament requires LIC to
function in the best interest of the community. The community is, therefore, entitled to know
whether or not, this requirement of the statute is being satisfied in the functioning of the LIC.
The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be
imposed by the latter has been recognized. On further consideration in Secretary, Ministry I&B
v. Cricket Association of Bengal, the Court has held that air waves or frequencies are public
property, their use must be controlled and regulated by a public authority in the interest of public
and to prevent the invasion of their rights. As the electronic media involves the use of the air
wages, this factor creates an inbuilt restriction on its use as in the case of any other public property.
This limitation in the nature of public property involved in the electronic media is in addition to
the grounds of restriction on the right of freedom of speech and expression under Art. 19(2).
Accordingly, while an individual has a right under Art. 19(1)(a) to have an access to telecasting,
this right is subject to the limitation on account of use of public property, i.e. the air waves involved
in the exercise of the right can be controlled and regulated by the public authority even on grounds
not strictly covered under Art. 19(2). The Court also asked the Central Government to take
immediate steps to establish an independent autonomous public authority representative of all
sections and interests of the society to control and regulate the use of air waves. The provision for
the Prasar Bharti seems to be taking care of this issue.
Virendra v. State of Punjab, The general principle is that it is unreasonable to leave absolute and
arbitrary discretion to an administrative officer to regulate the freedom of speech and expression.
The discretion to be valid must be exercisable for purposes specified in Art. 19(2), and subject to
legislative policy and procedural safeguards. Like, banning of publication in any newspaper of any
matter relating to a particular subject or class of subjects would be obnoxious to the right of free
speech.
The significant judicial pronouncement in the area is Virendra v. State of Punjab. This is an
important decision of the Supreme Court illustrating the Scope of Permissible restriction on the
right of freedom of speech and expression. Punjab Special Powers (Press) Act empowered the
State Government to:
1. Prohibit the Printing or Publication of any article, report news item, letter or any other
material relating to or connected with “Save Hindi Agitation”;
2. The imposition of ban against the entry and circulation of the said papers published from
New Delhi in the State of Punjab and
3. Authorizing the State Government of its delegate to impose Pre-censorship, for a maximum
period of two months in any issue of a newspaper.
These provisions were challenged on the ground of giving arbitrary and uncontrolled discretion to
the government to curtail freedom of speech ‘on its subjective satisfaction’. The Supreme Court
pointed out that there existed in Punjab serious tension amongst the various communities and in
such a situation, conferment of wide powers to be exercised in the subjective satisfaction of the
government could not be regarded as an unreasonable restriction. The State Government being in
possession of all material facts, was the best authority to take anticipatory action for prevention of
threatened breach of peace. Therefore, determination of necessity be left to the judgment and
discretion of the government. To make the exercise of those powers justiciable would defeat the
very purpose of the Act.
The first provision relating to ban on publication of news, etc. was upheld in the time of tension
brought about or aided by the ‘Save Hindi Agitation’, taking into consideration the safeguard
provided therein, as being a reasonable restriction and procedurally reasonable were:
1. The positive requirement of the existence of the satisfaction of the authority as to the
necessity for the making of order for the specific purposes mentioned in the Act.
2. The discretion was given in the first instance to the State Government and not to every
subordinate officer to determine the necessity of passing the order.
3. The order could remain in force only for two months from the making thereof.
4. The aggrieved party was given the right to make representation to the State government
which could, on consideration thereof, modify, confirm or rescind the order.
The second provision of the Act mentioned above, namely the power to impose a ban against the
entry and the circulation of the paper, was not sustained as a reasonable restriction on the freedom
of speech because there was no time-limit for the operation of an order made against a paper and
also because there was no provision made for any representative being made to the State
Government.
Further the court held that a law conferring discretion on the executive could not be invalid if it
laid down the policy so that discretion was exercised to effectuate the policy. The law in question
satisfied this test for it laid down the purpose for which the power could be exercised. Further there
were two safeguards subject to which the government was to exercise its power, viz., an order
could remain in force only for two months, and the aggrieved person could make a representation
to the government against the order, and so Act as a whole was valid of the order, nor did it provide
for any representation to the government against the order.
 RIGHT TO EDUCATION WITH SPECIAL EMPHASIS TO MINORITY EDUCATION
INSTITUTIONS

INTRODUCTION:
“A man without education is equal to animal”
Education is a basic human right. For the success of democratic system of government, education
is one of the basic elements. The Constitutional framers realising the importance of education have
imposed a duty on the state u/a 45 as one of the directive policy of state to provide free and
compulsory education to all children until they completed the age of 14 years within 10 years from
the commencement of this constitution. The constitution framers were also view that in view of a
financial condition of a new state it was not feasible to make a Fundamental Right. But it is
unfortunate that since lapse of 60 years from the commencement of constitution they didn’t take
any step to implement this directive and still 40 % population of country is illiterate.
After lapsing of 45 years this matter encroach to court in Mohini Jain v. State of Karnataka63
case the matter was raised by the petitioners that the right of education is a fundamental right under
article 21.The court held that right to education at all level is a fundamental right u/a 21 of the
constitution. The matter was again raised in Unni Krishnan v. State of A.P.64 where the court
specifically held that the right to education for the children of the age of 6 to 14 years is a
fundamental right. The court overruled the decision of the Mohini Jain case and held that the right
to education is only available up to 14 years of age. The court has said that after the 14 years of
age the obligation of the State depended on the economic development. Even after this case there
was no improvement in situation. Consequently, the article 45 is deleted and the Government
enacted Constitution (86th amendment) Act, 2002 has added a new article 21A and has made a
education for all children of 6 to 14 years a fundamental right. It provides that “the state shall
provide free and compulsory education to all children of the age 6 to 14 years in such a manner as
state may, by law determine.”
Ultimately after a lapse of 8 years for enforcement of 86th amendment Act, 2002 Parliament has
passed the Right of children to Compulsory Education Act, 2009. It provides responsibility of the
Central & State Gov., teachers, parents, and community members in ensuring that all children of
the age of 6 and 14 years received free and compulsory education.

ISSUE:
 WHETHER THE OBJECT OF ARTICLE 21A IS FULFILLED OR NOT?
 WHETHER THE RESERVATION FOR SEBCs UNDER MINORITY EDUCATIONAL
INSTITUION IS VALID OR NOT?

63
AIR 1992 SC 1858
64
(1993) 1 SCC 645
ANALYSIS:
Despite of constitutional provisions and legislative enactment passed by the Legislature which
provides free and compulsory education to all children of 6 to 14 years of age is not achieved. This
is a big problem and has remained unsolved, even after 67 years of independence and even today
elected government of the country did not take any concrete steps to implement Article 21A from
that 30% population of the country is still illiterate.
On coming on the first issue the main reason behind that the population of the country has
considerably increased and number of children of age from 6 to 14 are in crores. The government
does not have money at present to run its own educational institutions. Majority of higher
secondary schools are run by private persons where there is no provision for free education. They
charge high fees. Only middle class and rich peoples can afford to send their children to these
schools. Today there are no schools how would government implement it? If proper amounts of
schools are there the court will obliged to give an order for its enforcement.
On coming on the second issue reservation for SEBCs under the minority educational institutions
is not valid. Under article 30 of the constitution of India tells about the Right of minorities to
establish and administer educational institutions- it provides that all minorities, whether based on
religion or language, shall have the right to establish and administer educational institutions of
their choice.
In other words, religious and linguistic minorities have a special constitutional right to establish
and administer educational schools of their choice and Courts has repeatedly held that the State
has no power to interfere with the administration of minority institutions and can make only
regulatory measures and has no power to force admission of students from amongst non-minority
communities, particularly in minority schools, so as to affect the minority character of the
institutions.
There is a National Commission for Minority Educational Institutions which was established to
protect and safeguard the educational institutions which are established by the minorities in India.
This also ensures rights of minorities to establish and administer educational institutions of their
choice as provided in the Article 30 of the Constitution of India.

Here are some cases who describe about that why SEBCs reservation is not included in Article
30(1):-
In Dr. M. Ismail Faruqui and Others v. Union of India and Ors 65-In this case the Court has
held that the Preamble of the Constitution read in particular with Articles 15 to 28 indicates that
the concept of secularism embodied in the constitutional scheme is adopted by the Indian people.
Hence, secularism is no doubt a basic feature of the Constitution, but we fail to appreciate how

65
AIR 1994 SC 547
clause (5) of Article 15 of the Constitution which excludes religious minority institutions in clause
(1) of Article 30 of the Constitution is in any way violative of the concept of secularism.
In Smt. Vidya Verma v. Dr. Shiv Narain Verma66 case that the fundamental right of personal
liberty under Article 21 of the Constitution is available against only the State and not against
private individuals. He submitted that, therefore, the word “State” in Article 21A of the
Constitution would not include private unaided educational institutions or private individuals.
In Kerala Educational Bill case to argue that admitting children other than those of the minority
community which establish the school cannot be forced upon the minority institutions, whether
aided or unaided.
Also in the Right of children to Compulsory Education Act, 2009, in particular Sections 12(1) (c)
and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools u/a
30(1) of the Constitution and therefore the Act shall not apply to such unaided minority schools.
In Society for Unaided Private Schools of Rajasthan v. Union of India67-The court has taken a
view that the 2009 Act will not apply to unaided minority schools but will apply to aided minority
schools.
The 2009 Act was amended by the Right of Children to Free And Compulsory Education
(Amendment) Act, 2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that subject
to the provisions of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act shall
apply to conferment of rights on children to free and compulsory education. So, 2009 Act will not
apply to unaided minority schools but will apply to aided minority schools.
CONCLUSION:
In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims
(12%), which is world’ third largest. In India majority consist of Hindus, their population includes
more that 80% of India’ population and constitution of India provides for special rights to both
linguistic and religious minorities “to establish and administer educational institutions of their
choice” under Article 30. As in the St Xavier’s College68 case, the Supreme Court has rightly
pointed out, “The whole object of conferring the right on the minorities under Article 30 is to
ensure that there will be equality between the majority and the minority. If the minorities do not
have such special protection they will be denied equality.”
The only alternative is to encourage nongovernmental organisations to come forward and
participate it in to fulfil the mandate of constitution but There should also be necessary steps should
be taken by the Government that to run its own institutions, help the NGO’s and to see that teachers
and employees working in these private educational institutions get minimum salary to survive
and make the scheme successful.

66
AIR 1956 SC 108
67
AIR 2012 SC 3445
68
AIR1974 SC 1389
WRIT JURISDICTION OF THE SUPREME AND HIGH COURTS