Waiver of Fundamental Rights

- In the U.S.A., a Fundamental Right can be waived [Boykin v Alabama,

- In Behram v State of Maharashtra. The court repudiated the doctrine of waiver, saying that the Fundamental
Rights were not put in the Constitution merely for individual benefit. These Rights were there as a matter of public
policy, and therefore, the doctrine of waiver could have no application in the case of Fundamental Rights.
ARTICLE 12- [STATE]
- the Government and Parliament of India
and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of India
- The definition is not exhaustive but inclusive, which means that apart from those organs or bodies which have
been enumerated, others may also be covered by the expression State.’
- Structuralism: Structuralism, as a method of constitutional interpretation, attempts to derive constitutional rules
from the relationships and interactions between various constitutional structures or institutions.
- Functionalism: Functionalism, on the other hand, works on inductive method, developing the constitution and the
policies related to it through “case by case application of the independent normative values that the law ought to
promote.”
- Former believes Constitution as a document establishing various structures and its subsequent interaction with an
Individual,
- Later idealises Constitution as a living document thereby stressing more on idea of justice, efficiency and efficacy,
- Local Authorities: The expression as defined in Sec 3 of the General Clauses Act refers to authorities like
Municipalities, District Boards, Panchayats, etc. Rashid Ahmed vs. Municipal Board, Kairana 1950 AIR 163 is
one of the early cases in which a municipality was held to be a local authority under Article 12.
- In Union of India v RC Jain 1981 AIR 951, certain tests were laid down to determine which all authorities can
fall under the head of “local authorities”:
It has a separate legal existence;
It functions in a defined area;
Has the power to raise funds on its own;
It enjoys autonomy(self-rule); and
It is entrusted by statute with functions which are usually entrusted to municipalities.
- Other Authorities: The expression other authorities in Art. 12 are used after mentioning the executive and
legislature of Union and States, and all local authorities. Article 12 encompasses all other authorities which do
not fall into the first three categories.
- Restrictive Interpretation: In University of Madras v Shantha Bai AIR 1954 Mad. 67, the Madras Court formulated
the principle of “ejusdem generis” which meant that all things of like nature are included in that this and this also
means that bodies exercising governmental or sovereign function would only be covered under other authorities.
(girl student case). The High Court gave the decision in her favor and held that the directions given by the
university were in contravention to her fundamental rights. It was discriminatory on the ground of sex. Against
the decision of the High Court, an appeal was made by the University in the Supreme Court. The Supreme Court
held that the University of Madras is not a state within the meaning of state given in Article 12 of the Constitution
and that its regulations are not in violation of enacted in Article 15(1) as it was not discriminatory on the ground
of sex.
- Liberal Interpretation- In Ujjam Bai vs. State of UP 1962 AIR 1621, the Court rejected the principle given in the
University of Madras’s case which is ejusdem generis. The Supreme Court rejected the restrictive interpretation
of “other authorities” and held ejusdem generis to be inapplicable. The court observed that to apply the ejusdem
generis rule, there should be a different category to the heads running through the bodies already specifies. In
Article 12, the bodies have no common genus. In Electricity Board, Rajasthan v Mohan Lai (AIR 1967 SC 1857)
and Sukhdev Singh v Bhagatram (AIR 1975 SC 1331), a very restrictive interpretation of the expression ‘other
authorities’ given by court - only the authorities created by the Constitution or Statute are the ‘other authorities’,
though it is not necessary that statutory authority should be engaged in performing governmental or sovereign
functions. Thus, the Rajasthan Electricity Board, Oil & Natural Gas Commission (ONGC), Life Insurance
Corporation, Industrial Finance Corporation, etc., are held to be 'other authorities’.
- Sabhajit Tiwari Vs Union of India (1975): The question raised, in this case, was whether the Council of Industrial
and Scientific Research (CSIR) which was only registered in Societies Registration Act, 1898 would come within
the definition of “State” under Article 12. It was held that the said body was not a ‘state’ as it was registered under
a statute and not performing essential state functions and was not functioning under the pervasive control of the
government. In Sukhdev Singh’s case, the court held that the corporation was a state as they were created by a
statute and performing important state functions and had pervasive control of the government.
- Ramana Dayaram Shetty Vs. The International Airport Authority of India (1979):
1) financial resources of the State are the chief funding source
 2) existence of deep and pervasive State control
3) functional character being governmental in essence
4) if a department of government is transferred to a corporation.
5) whether the corporation enjoys monopoly status which is State conferred or State protected.
6) Not conclusive test but illustrative
7) The Supreme Court held that the International Airport Authorities were undoubtedly an instrumentality or
agency of the Central Government and falls within the definition of ‘State’ under Article 12.
- Recent Expansion of the Term ‘State’ by Judiciary: Leading Case: Som Prakash Rekhi v Union of India: Supreme
Court held that the Bharat Petroleum Corporation, though a Government Company registered under the
Companies Act, by virtue of the various provisions of the 1976 Act, was transformed into an instrumentality of
the Central Government with a strong statutory flavour super added and clear indicia of power to make it an
"authority’' falling under the expression 'State' in Art. 12. The expression ‘other authorities” in Art. 12 would
include not only a statutory body but also a non-statutory body like a Government Company if it was found that
the body or authority was an agency or instrumentality of the Government.
- The Court, through its different cases, has adjudged that BCCI is not a state.

ARTICLE 13 [LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS]

- The word judicial review was summarized in Marbury V. Madison,
- Under Article 13(2) of the Constitution of India, any law made by the parliament that abridges the right conferred
to the people under Part 3 of the constitution is void ab initio.\
- The ordinances promulgated by the President under Art. 123 or by the Governor under Art. 213 must also not be
inconsistent with the fundamental rights.
- Importance:
1) Judicial review is necessary to uphold the principle of supremacy of the Constitution.
2) The provision of judicial review prevents the misuse of power by the legislature and executive.
3) It maintains the equilibrium between the centre and state, thereby maintaining federal equilibrium.
4) The provision protects the fundamental rights of the citizens.
5) This provision ensures the principle of the independence of the judiciary.
- SCOPE OF JUDICIAL REVIEW
1) The said law infringes upon the fundamental rights guaranteed by the Constitution.
2) The said law goes against the provisions listed in the constitution.
3) The law that has been enacted goes beyond the competency of the authority that has framed it.
- Judicial review of: constitutional amendments. of legislation by the parliament and state legislatures expands to
subordinate legislation. of administrative actions of the union and state expanding up to authorities under the state.
- No retrospective effect - Every pre-constitutional law must, after the commencement of the Constitution, conform
to the provisions of Part III.
- All inconsistent existing laws become void only after the commencement of the Constitution. They are not void
ab initio. A declaration of invalidity by the Courts will be necessary to make the laws invalid.
- In Keshavan Madhava Menon v State of Bombay (AIR 1951 SC 128) – (Indian press act case): It was held that
there is no fundamental right that a person shall not be prosecuted and punished for an offence committed before
the Constitution came into force. The Constitution is to be interpreted according to its language and not according
to any supposed spirit of the Constitution. The law became void not in toto or for all purposes or for all times or
for all persons but only “to the extent of such inconsistency,”
- In Mithu v State of Punjab (1983) - As per Section 303, if a person undergoing life imprisonment committed
murder, they would mandatorily be sentenced to death.
- Doctrine of Severability or Separability: When a part of the statute is declared unconstitutional, then a question
arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be
declared void. A.K. Gopalan v. State of Madras: The impugned Act minus this section can remain unaffected.
 The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore,
the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act. State of Bombay v FN
Balsara: If valid and invalid parts are inextricably mixed, declaring the whole Act void. The primary test is
whether what remains is so inextricably mixed with the part declared invalid that what remains cannot survive
independently. Leading Case: In R.M.D.C v Union of India (AIR 1957 SC 628): Sec 2(d) of the Prize Competition
Act; competitions involving skill.; If valid and invalid parts are separate, the code remains upheld after removing
the invalid portion. If valid and invalid parts are inextricably mixed, declaring the whole Act void avoids judicial
legislation. When valid and invalid parts are independent, but the remaining statute is substantially different, the
Act fails.
- Doctrine of Eclipse: This doctrine is based on the principle that a law that violates fundamental rights is not nullity
or void ab initio but becomes only unenforceable, i.e., remains in a morbid condition. Leading Case: In Bhikaji
Narain Dhakras v State of MP (AIR 1957 SC 628) - Held that the effect of the amendment was to remove the
shadow and to make the impugned Act free from all blemish or infirmity... thus making it enforceable. The
doctrine of eclipse is applied in relation to a pre-Constitution law, which was valid when it was enacted. In Deep
Chand v. State of UP AIR 1959 648, the SC held that: A post-constitutional law made under Art 13(2) which
contravenes a fundamental right is nullity from its inception and a still-born law. It is void ab initio. The doctrine
of eclipse does not apply to post-constitutional laws and, therefore, a subsequent constitutional amendment cannot
revive it.
- Personal laws and Article 13: Leading Case: State of Bombay v. Narasu Appa Mali: personal laws were not “laws
in force” as defined by Article 13 of the Constitution.; Thus, personal laws were held to be immune from
constitutional challenge.; Courts have adopted the “non-interference approach”.
- later cases such as Mary Roy v. State of Kerala, 1986 and Danial Latifi v. UOI, 2001 etc., the courts have followed
the “scrutinizing approach”, and tested the personal laws on the touchstone of Fundamental Rights.
- Krishna Singh v. Mathura Ahir: Court adopted non-intervention approach
- Divergence in approach: C Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil: Right to
property of a Hindu female” Personal laws are derived not from the Constitution but from the religious scriptures.
The laws thus derived must be consistent with the Constitution least they became void under Article 13 if they
violated fundamental rights. Right to equality is a fundamental right” Shayara Bano v. Union of India (2017):
Practice of instantaneous triple talaq challenged. Triple Talaq was held unconstitutional. Sabarimala Judgement -
Indian Young Lawyers Association and others v. State of Kerala and others (2017). Held exclusion of women
based on custom, as unconstitutional.
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.’’
- While “equality before law" is negative concept implying the absence of any special privilege in favour of
individuals and the equal subject of all classes to the ordinary law.
- “Equal protection of law" is a more positive concept implying equality of treatment in equal circumstances. All
persons who are in the same circumstances will be governed by the same rules. The rule is that like should be
treated alike and not that unlike should be treated alike.
- In State of W.B. v Anwar Ali Sarkar: it is difficult to imagine a situation in which violation of equal protection
of laws will not be the violation of the equality before law. Thus, in substance the two expressions mean one and
the same thing.
- In Re Special Courts Bill, 1978: "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 j imposed.”
- Exception of 14: The words “any person” in Art. 14 is available to any person, which includes any Company or
association, etc. However, an alien (foreign national) cannot claim equal rights (under Art. 14) with that of an
Indian national in relation: to the grant of Indian citizenship. Under Art. 359, when the proclamation of emergency
1 Art. 361 provides that President and Governors shall not be answerable to any; also enjoy immunity from
criminal and civil proceedings Members of Parliament and State legislatures are not liable.

- Article 14 permits Reasonable Classification but prohibits Class Legislation. Article 14 does not mean that
all laws must be general in character. The State can treat different persons differently if circumstances justify 1
such treatment. In fact, identical treatment in unequal circumstances would amount to inequality. 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 [Re Special Courts Bill, 1978
AIR 1979 SC 478]. 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. The classification must not be “arbitrary, artificial
 or evasive”, and it must fulfil following two conditions - it must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of the group, and the differentia must
have a rational relation to the object sought to be achieved by the Act. Various decisions have established
important guidelines or principles which further clarify the “scope of permissible classification”: Special
Circumstances Exception: A law can be constitutional even if it applies to a single individual treated as a unique class.
Presumption of Constitutionality: Courts presume statutes are constitutional, but this presumption can be rebutted if
there’s no valid classification. Common Knowledge and Historical Context: Courts consider common knowledge
and historical context when assessing constitutionality. Legislative Understanding: Legislatures are presumed to
understand the needs of their people when making classifications. Degrees of Harm: Legislatures can restrict based
on varying degrees of harm, focusing on the clearest cases. Inequality and Classification: Mere inequality doesn’t
determine constitutionality; classification inherently implies inequality. Scientific Perfection Not Required:
Legislative classifications needn’t be scientifically perfect; equal treatment ≠ identical treatment. Common-Sense
Judgment: Reasonableness is judged more by common sense than legal subtleties. Selective Application: Statutes
allowing discretion to administrators aren’t necessarily discriminatory. Violation of Art. 14: Legislation violating
constitutional provisions cannot be upheld. Reasonable Classification: Classification must be reasonable both
substantively and procedurally .
- Chiranjit lal chaudhary V UOl (AIR 1950 SC 41): the Apex Court said that a law may be constitutional even
though it applies to a single individual. While the traditional concept of equality is based on the doctrine of
classification, the new concept is based on the doctrine of arbitrariness. In E.P Royappa, held that equality is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and
doctrinaire limits. From a positivistic point of view, Equality and arbitrariness are sworn enemies Where an act
is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is
therefore violative of Art. 14.
- In Maneka Gandhi case, the court observed that principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness, pervades Art. 14 like a brooding
omnipresence. Art 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment Where
an act is arbitrary, it is implicit in it that it is unequal and so violative of Art. 14 The conclusion is that if the
action of State is arbitrary, it cannot be justified even on the basis of doctrine of classification.
- In RD Shetty v. International Airport Authority (1979) case, the court observed that the doctrine of classification
is merely a judicial formula for determining whether the legislative or executive action is arbitrary and so
constitutes a denial of equality.
- The new concept of equality has been criticized by HM Seervai as illogical, inadequate and unnecessary. In
consonance with these established principles, Article 14 aims at preventing arbitrary state action on both the
administrative and legislative levels as held in the Charan Lal Sahu v. Union of India case. Arbitrariness or
unreasonableness has become the yardstick with which legislative actions are compared. The test involves
analyzing for any identifiable principle that is applied in the impugned action and if yes, to check if it complies
with the test of reasonableness. Further, not complying with the principles of natural justice also amounts to
arbitrariness and is a violation of Article 14 of the Constitution. Through this doctrine, the rationality of the
legislation is proved. Individuals are equal, but the same should include a sense of rationality amidst the moral
principle. Any exception to equality is permissible only if the state has reasonable grounds to treat individuals
differently. Thus, the reason behind any state action must be analyzed and considered to understand the rationality
behind the action. In the event of arbitrary action, the action must lack rationality which violates Article 14.