Fundamental Rights as a Limit on Government

Clause (4), inserted by the Twenty-fourth Amendment 1971, provides that nothing in article 13 shall apply to any amendment made under article 368. That is what Kesavananda had to deal with.

Three doctrines grow out of these words and each has a case. Eclipse, severability, and waiver.

The three doctrines under article 13

Severability: "to the extent of the inconsistency" or "of the contravention". Only the offending part falls, if what remains can stand on its own and gives effect to what the legislature intended. That is why section 5(1) of the West Bengal Special Courts Act fell in part and stood in part in Anwar Ali Sarkar.

Eclipse: a pre-Constitution law is overshadowed, not destroyed. In Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781. Facts. A 1947 Berar Act permitting the State to take over the motor transport business had become inconsistent with article 19(1)(g) in 1950, and the First Amendment of 1951 then widened article 19(6) so that the Act would have been valid if passed after it. Held. The Act was not dead but eclipsed: an existing law inconsistent with a fundamental right is not wiped off the statute book but remains dormant as against citizens, and when the constitutional impediment is removed by amendment the shadow lifts and the law becomes enforceable again. Why it matters here is that it explains the different treatment of clauses (1) and (2), and it is the reason the First Amendment could revive earlier statutes.

And the doctrine does not apply in the same way to a post-Constitution law. In Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648. Facts. The case concerned the Uttar Pradesh Transport Service (Development) Act 1955 and its relation to a Central Act. Held, distinguishing clause (1) from clause (2). A pre-Constitution law is void only from the commencement of the Constitution whereas a law made in contravention of clause (2) is void ab initio, a still-born law, so that the doctrine of eclipse has no application to it in the same manner. Why it matters here is that the timing decides the remedy: an eclipsed law can be revived by amendment, and a still-born one has to be re-enacted.

And a right is not waivable. The reason is that Part III rights are not conferred for the individual's benefit alone but as limits on the State, and a limit which the person limited can persuade the beneficiary to give up is not a limit. This is the basis of Basheshar Nath v. Commissioner of Income-tax, Delhi, AIR 1959 SC 149. Facts. An assessee had accepted a settlement under section 8A of the Taxation on Income (Investigation Commission) Act 1947 and was later said to have waived his article 14 objection. Held. A fundamental right cannot be waived: the doctrine of waiver has no application to the fundamental rights, at the least those enacted for the benefit of the general public and not for an individual alone. Why it matters here is that it distinguishes a constitutional limit from a private right.

Article 32: the remedy that makes the rest real

Clause (1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed. The remedy is itself a right, which is unusual and deliberate.

Clause (2). The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate.

Clause (4). The right guaranteed by article 32 shall not be suspended except as otherwise provided for by the Constitution, which is a reference to article 359 during an emergency, and which after the Forty-fourth Amendment cannot reach articles 20 and 21.

Article 226 is wider in one respect and narrower in another. Wider, because a High Court may issue a writ for the enforcement of Part III rights "and for any other purpose", which includes an ordinary legal right. Narrower, because it is discretionary, whereas article 32 is a guaranteed right.

A worked example

A society registered under the Societies Registration Act runs a school. Its entire recurring expenditure is met by a State government grant; the State nominates seven of its eleven governing body members; its rules require State approval for fees, staff strength and syllabus; and it was set up by a government resolution to run schools the State would otherwise have run itself. It expels a student without a hearing. Can the student move the High Court under article 226 for a violation of article 21?

The first question is article 12, and everything turns on it. The society is not a local authority, so the question is whether it is an "other authority". Apply the indicia: the entire expenditure is State-funded; the State holds a majority of the governing body; there is deep and pervasive State control over fees, staff and syllabus; and the function is one the State itself would otherwise perform. On Pradeep Kumar Biswas the body is financially, functionally and administratively dominated by the government, and the control is deep and pervasive rather than merely regulatory.

If article 12 is satisfied, the rest follows quickly. Article 21 is engaged because education has been held part of the right to life, and the procedure must be right, just and fair after Maneka. Expulsion without a hearing is not.

If article 12 is not satisfied, the student is not without a remedy, and a good answer says so. Article 226 permits a writ "for any other purpose", and the courts have entertained petitions against private bodies discharging a public duty. What the student loses is article 32, which reaches only the State.

And notice the constitutional point the example is really about. Whether Part III binds a body is not answered by its legal form. A government that could escape the Constitution by incorporating a company would have no limits at all, which is why the courts built the instrumentality test.

The cases on article 12

The narrow reading was rejected early. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857. Facts. The case concerned the service conditions of employees of the Board, a statutory corporation. Held. "other authorities" in article 12 is not to be read ejusdem generis with the preceding words and is not confined to bodies exercising governmental or sovereign functions: it includes all constitutional or statutory authorities on whom powers are conferred by law, whether or not the authority is engaged in performing commercial activities. Why it matters here is that it opened article 12 to the public sector.

Then came the indicia. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331. Facts. The case concerned the status of the regulations made by the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation and whether their employees could enforce them. Held. These statutory corporations are authorities within article 12 and their regulations have the force of law, so an employee dismissed in breach of them may be reinstated. Mathew J.'s concurring opinion introduced the idea of an instrumentality or agency of the State. In Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628. Facts. The acceptance of a tender for a restaurant at Bombay airport from a party who did not meet the advertised eligibility condition. Held. The Authority was an instrumentality of the State and therefore subject to article 14, and set out the indicia: the entire share capital held by government, financial assistance meeting almost the entire expenditure, a monopoly status conferred or protected by the State, deep and pervasive State control, and functions of public importance closely related to governmental functions. Why it matters here is that this is the checklist an answer applies.

And the indicia were restated as one test. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, decided on 16 April 2002. Facts. Whether the Council of Scientific and Industrial Research is a State within article 12, an earlier Bench having held it was not. Held, by a majority of seven judges. The earlier decision was wrong and that the Council is a State: the question in each case is whether the body is financially, functionally and administratively dominated by or under the control of the Government, and that control must be particular to the body and deep and pervasive, not merely regulatory control of the kind exercised over any private body. Why it matters here is that this is the test in force.

But the test has a boundary. In Zee Telefilms Ltd v. Union of India, decided on 2 February 2005. Facts. Whether the Board of Control for Cricket in India is a State within article 12, in a dispute about the termination of telecast rights. Held, by three to two. It is not: the Board is not created by statute, no share capital is held by government, it enjoys no State monopoly conferred by law, there is no deep and pervasive State control, and its functions are not governmental, though the Court noted that a petition under article 226 may still lie against it where it discharges a public duty. Why it matters here is that it stops the test collapsing into "any important body", and it supplies the alternative route a student should always mention.

Distinctions

What it does NOT mean

It does not mean Part III binds private persons. Article 12 reaches the State. The exceptions are the rights that bind private persons in terms: article 15(2) on access to shops and public places, article 17 on untouchability, article 23 on trafficking and forced labour, and article 24 on child labour.

It does not mean a fundamental right can be given up by agreement. Basheshar Nath holds that the doctrine of waiver has no application to fundamental rights.

It does not mean article 32 lies for every grievance against the State. It lies only for the enforcement of a Part III right, which is why an ordinary illegality goes to article 226.

And it does not mean article 13(3)(a) catches everything called law. Whether uncodified personal law is "law" for this purpose is unresolved and is the subject of its own chapter.

Quick revision

Article 12 defines the State for Part III: Government and Parliament of India, Government and Legislature of each State, and all local or other authorities within India or under the control of the Government of India. "Other authorities": Rajasthan State Electricity Board rejects ejusdem generis; Sukhdev Singh and Ramana Dayaram Shetty give the indicia (share capital, funding, monopoly, deep and pervasive control, public functions); Pradeep Kumar Biswas restates them as financial, functional and administrative domination that is particular, deep and pervasive; Zee Telefilms holds the BCCI outside article 12 but leaves article 226 open. Article 13(1) voids pre-Constitution law prospectively and permits eclipse (Bhikaji Narain Dhakras); article 13(2) makes post-Constitution law void ab initio (Deep Chand); article 13(3)(a) defines law widely; article 13(4) exempts amendments. Severability follows from "to the extent of". Rights cannot be waived (Basheshar Nath). Articles 32 and 226 supply the remedy, article 32 being itself a right and article 226 being wider in scope but discretionary.

Test yourself

1. Name the three structural provisions of Part III and what each does. Article 12, which defines the State and so decides who is bound; article 13, which makes an inconsistent law void and supplies the sanction; and articles 32 and 226, which supply the remedy, article 32 being itself a fundamental right.

2. State the test for an "other authority" after Pradeep Kumar Biswas. Whether the body is financially, functionally and administratively dominated by or under the control of the Government, that control being particular to the body and deep and pervasive, rather than the regulatory control exercised over any private body.

3. Distinguish the effect of article 13(1) from that of article 13(2). A pre-Constitution law inconsistent with Part III is void from the commencement of the Constitution and only to the extent of the inconsistency, so it can be eclipsed and revived; a post-Constitution law made in contravention of clause (2) is void ab initio and must be re-enacted.

4. What is the doctrine of eclipse, and which case established it? That an existing law inconsistent with a fundamental right is not wiped off the statute book but remains dormant as against citizens, and revives when the constitutional impediment is removed: Bhikaji Narain Dhakras v. State of Madhya Pradesh.

5. Can a person waive a fundamental right? No. Basheshar Nath holds that the doctrine of waiver has no application to fundamental rights, at least those enacted for the benefit of the general public, because they are limits on the State rather than private benefits.

6. Give two differences between articles 32 and 226. Article 32 lies only for the enforcement of Part III and is itself a fundamental right; article 226 lies for Part III and for any other purpose but is discretionary. Article 32 runs throughout India; article 226 is confined to the High Court's territorial jurisdiction or where the cause of action arises.