CHAPTER – 1

1. Introduction

Part III of the constitution contains a long list of fundamental eights.

This chapter of the constitution of india has very well been desceibed

as the ‘Magna – Casta’ of india. The ‘Magna – Cata’ is the evidence of

their success which is a written document. This is the first and written

document relating to the fundamental rights of citizens. The Americans

first to give bill of eights in constitution.

Fundamental right were deemed essential to protect the eights and

liberty of the people against the enforcement of laws. The gurantee of

certain basic human eights is an indispensable equipment of a free

society.

Article 14 decleares that ‘the state shall not deny to any person

equality befor the law or equal protection of laws within the teritoeg of

India.

Article 14 confess a right on the individuals or is moal admonition to

the state. In

basheshar nath V commissiones of income

tax air 159 SC 149

Chief justice S.R. Das delivering opinion for himself and kapur held

that

Article 14 is in form as admonition addressed to the state and

does not directly purpoet to confer any light on any person as some of the

other articles eg article – 19. the obligation thus imposed on the state, no

doubt, it is benefit for all person for as a necessary result of operation of this

article they all equally enjoy before the law

This view is neither supported by sufficient authority not seems to be

correct. As already discussed in the beginning of this part, rights may be

conferred in two ways:-

1. By beohibiting other from doing something

2. by requiring some other person to do something.

The first category of rights all known as negative eights while lights of

second type are called positive rights.

All the fundamental rights are primarly for the benefit of the individuals.

In fact, all right are peimarly for the benefit of the owner of rights. A

legal right is an interest of the owner of the right recognized and

protected by law and every has correlative duty. Under the article 14,

right of equality is quarantel to individual persons and correlative duty

is imposed upon the state.

Article 14 uses two expression

1. Equality before the law

2. equal protection before law.

The phease ‘equality before law’ finds a place in almost all written

constitutions that quarantees fundamental right [lihe – (1) U.S.A

section 1 of 14 Amendment says “No state shall deny to any person

within its jueisdiction the equal protection of the law.

2. Burma – section 13 “All citizens irrespective of birts, religion, sex or

race are

equal before law, that is to say there shall not be any aibitrary

disclimination between one citizen or class of citizens and another”.

3. Eire – Section 40 (1) ‘All citizens shall, as Harman persons be held

equal before law.]

Both these expression have however, been used in the

universal

Declaration of human right. The first expression ‘equality before law’ is of

English origin and the second expression of has been than from the American

constitution. Both these expressions aim at establishing what is called

“equality of status” in the preamble of the constitution. While both the

expression may seem to be identical they do not convey the some meaning.

While ‘equality before the law’ is a some negative concept implying the

absence of any special peivilage in befour of individual and the equal subject

of all classes to the ordinary law “equal protection of the law” is a more

positive concept implying equality of treatment in equal circumstances

however one dominant idea common to both the expression is that of equal

justice.

Case:- In shoe shanker V M.P. Government

AIR 1951 Nag 53

While both the expressions aim at establishing what may, be legaded as

equality of legal status for all there is some. Difference between those

expressions. The former expression is same what a negative concept

cimplying the absence of any special peivilage in favour of an individual while

the latter is more positive concept implying equality of treatment in equal

circumstances.

In case 1 – Surya pal Singh V UP

AIR 1951 All 674

The Allahabad High Court also held that equality before law has not the sme

meaning as ‘equal protection before law’ not According to Allahabad high

court also former may be defined as equal subjection of all persons to the

ordinary law of the land while the latter as equal protection of laws.

In state of west Bengal V. Anwar Anwar Ali Sarka

AIR 1952 SC 75

Chief justice patanjali shaster held that ‘equal protection of laws’ in corollag of

the ‘equality before the law’ it is difficult toe imagine a situation when ‘equality

before the law’ con be maintained without equal protection of laws. In pratice

therefore both the expression come to one and the same thing

2. Historical Background : -

In the time of 19th and 20th centary. The

constitution of England is unwritten. Hence, there is in England no code of

fundamental lights as exists in the constitution of the united states or in other

written constitution of the world. This does not mean. However, that in

England there is no lecogition of those basic lights of the individual without

which democracy becomes meaningless.

The object, in fact, is secured here in different way. The foundation of

individual eights in England may be said to be negative, in the sence that an

individual has the eight and freedom to the whatever action he likes. So long

as he does not violate any rule of the ordinary law of the land. Individual

liberty in secused by judicial decisions determining the eights of individuals in

particular cases brought before the Covets.

The judicialy is the guardian of individual lights in in England as

elsewhere but there is a fundamental difference. While in England the courts

have the fullest power to protect the individual against executive tyranny, the

courts are powerless as against’ legislative aggression upon the legislatiole in

England. The English parliament being theoretically ‘omnipolent’ there is no

law which it cannot change As has been already said, the individual has lights

but they individual has lights but they are founded on the ordinary law of the

land which can be changed by parliament like other laws so there is no light

which may be said to be a ‘fundamental’ in the strict sence of the term.

Another vital consequence of the supremacy of parliament is that the eglish

court has no power of judicial leview over legislation at all. It cannot declare

any law as unconstitutional on the ground of the conteavention of nay

supposed fundamental or natural light.

1. Ominipotent –That person which do any thing

2. tylanny

The fundamental difference in approach to the question of individual

lights between England and the united states is that while the English

were anxious while the English were anxious to protect individual lights

from the abuses of exeautive power the feamers of the American

constitution were appeahensive of tyennay not only from the

legistature like a body of men who for the time being team the majority

in the legistature.

So the American Bill of Rights (contained in the first 10 Amendments of

the constitution of the U.S.A) is equal binding upon the legistature as

upon the executive. The result has been the establishment in the

united states of a ‘judicial supremacy’ as oppoed to the ‘[porliamentaly’

supremacy’ in England. The courts in the united states are completant

to decle an act of congless as unconstitutional on the ground of

conteavention of any provision of the bill or adjust of lights Further it is

beyond the competency of the legislature to modify or adjust any of the

fundamental light in view of any emergency or danger to the state that

power has been assumed by the judiciary in united states.

In India the simon commission and the joint parliamentary committee

which were responsible for the ‘government of India Act 1935 had

rejected the idea of enacting declearation of fundamental lights on the

ground that “absteact declerations are useless, unless there exist the

will and the mean to make them effective”. But nationalist opinion.

Since the time of the nehew repart was definitely in a favour of a bill of

lights because the experience gathered from the beritish regime was

that a subsrewient legistature might serve as a hand maid to the

executive in committing ineoads upon individual liberty.

Regardless of the British opinion therefore the mahersh of our

constitution adopted fundamental rights to safeguard individual liberty

and also for the ensuring social, enomic and political justice for every

member of the community that they have suceded in this venture is the

testimony of an adent observes of the Indian constitution.

So the constitution of India has embodied a number of fundamental

right in part in of fundamental rights in part in of the constitution. Which

are to act as limitations not only upon the power of the executive but

also upon the powers of the legislature of the united states the Indian

constitution does not go refer and rather effect a compeomire between

the doctaines of parliament sovereignty and judical supremacy. In the

other hand the parliament of Indian cannot be said to be sovereign in

the English sense of legal omnipotence for the very bad that the

parliament is created and limited by a written constitution enables our

parliament to legistate only subject to the limitations and peohibitions

imposed by the constitution such as the fundamental rights the

distribution of legislatue power etc in case any of these limitations are

transgressed the supreme court and the high court are compelent to

decleare a law as in constitutional and void. So for as the contevention

of fundamental rights is concerned, this duty is specially njoined upon

the courts by the constitution

Our constitution follows the American model rather than English but

the power of judicialy in weather than in the united states.

Before goint through Article – 14 we should understand the link

of these two articles with the totality of fundamental light the (1) Article

12 embodies that the fundamental lights are embarced against state

and (2) Article 13 embodies the law in the doceine of fundamental

lights

Moreoever, Article – 14 which in reality is the first article o the

fundamental lights matrix, derives, its source from American and irish

its source from American and irish constitutional and directly links with

plenariy provisions ensheined in the preamble of our constitution which

speaks the equality of statu and opportunity and simultaneously gives

effect to the principle in the whole text of the constitution and 12

schedules appended to it.

If we move in the pages of Indian history in a sense the demand for

equality which is main intent of Article – 14, is linked with the freedom

movement in Indian. The Indians wanted the same light and privileges

that their beritish masteres enjoy in Indian and the for civil right was

implicit in the formation of the Indian national congress in 1885.

The commonwealth of Indian Bill 1925 demanded the equality before

law and provided especially that there ws to be no disqualification as

disability on the ground only of sex alongwith the peovision that all

persons were to have equal lights to use of road, transportation, court

of justice and all other places of business for bublic.

Besides the motilal Nehru report, 1928 the sapru report of 1928 ligusd

the equality aspects of constitution in the following words

“ What the constitution demands and expects is perfect equality

between one section of the community and anothers in the matter of

political and civil lights matter of political and civil lights equality of

liberty and security in the enjoyment of the freedom of religion worship

and the persuit of the ordinary applications of life.

Hence the light to equality and liberty in Article – 14 are the words of

parssions and power our foundation father not only put liberty and

equality in the peeamble of our constitution but gave them practical

effet in Article – 14 which provides that “The state shall not deny to any

person equality before the lw and equal protection of the laws in the

tearitory of India”.

In respect of content and reach of the great equalizing peinciple

envciated in Article – 14 there can be no doubt that it is a founding faith

constitution.

Chapter – III

Rules of law:-

Meaning: The rule of law plays on important role in the administration of the

countary. It provides protection to the people against the arbitrary action of

administeative authorities. The experession ‘rule of law’ has been derived

from the French phase ‘La principale de logailte’ like a government based on

the principle of law may be taken to mean mainly a rule or principle which

governs the external action of human beings and which is recognized and

applied by the state in the administration of justice. The object of the law is to

maintain public order by compelling individual by defining the powers of the

government, its resvonts and its institutions and by compelling then to

exercise their power within their limits. The law, thus provides protection to

individual from unlawful action of the govt and its officers by compelling them

to exercise their power in accordance with law.

The rule of law according to the ‘Garner’ is often used simply to describe the

state of affairs in a countary where in main, the law is observed and order is

kept. It is an expression synonymous with law and other. However, to the

public lowers it converys something a little more peecise for them cit is liked

with the weiting of Dicey.

Rule of law has been originated by ‘Sir Edwaid Coke’. He expressed the view

that the king must be under god and law. It was originated with the object to

exclude the arbitrary authority of the Government and to protect the individual

from unlawful action of the government later on this concept was developed

and established by A.V Dicey. According to Dicey Rule of law has three

meanings:-

1) First meaning of the rule of law that no man is penishable or can loudly

be made to sufer in body or goods except for a distinct breach of law

established in the ordinary couet of law

Thus the ‘Rule of law’ according to dicey: Supeimacy of law means the

absolute supremacy predominance or regular law as opposed to the

influence of abitealy power and excluder the existence of arbitraviness

or preeogative or even of the wide discretionary authority on the part of

the government. It implier that a man may be punished for beeach of

law but he cannot be punished for anything else no man can punished

except for a beeach of law. An alleged ofence is required ot be proved

before the ordinary courts in accordance with the ordinary proceedure

2) The second meaning of rule of law is that no man is above law. Every

person wheatever be his lank or condition is object to the ordinary law

of the realm and amenable to the jusidiction of the ordinary tribunals.

Thus of law in this sense means equality before the law or the equal

subjection of all cleaves to the ordinary law of the land administered by

ordinary law courts rule of law thus excludes the idea of any exmption

to officials or other from the duty or obedience to citizens or from the

jurisdiction or the ordinary tribunals.

3) Third meaning of the rule of law is that the general principles of the

constitution are the result of judicial decisions determining the eights of

peivate persons in particular cases brought before court.

Criticism of Dicey view

The view of Dicey as to meaning of the Rule of law has been the

subject of much criticism. The whole criticism may be rummed up as

follow:

1. Dicey has opposed the system of providing the disclerationary power

to the administeation. In his opinion providing the discreationary power

means creating the room for arbiteariness which may create a resivous

threat to individual freedoms.

Now a day it has been clear that providing the discretion to the

administration is inevitable. The peerent teend is the establishment of

welfare state which performs numerous functions including economic

and social functions. The function of the state is not confined to

maintaince of army, maintance of law and order and collection of

taxes. Now a days it carries on trades, commerce and socio –

economic condition of the people. The state plays important role in the

peomotion of education.several education institution have been

establish by state. Without direction it is not possible for the modern

state to fulfil its obligation to the citizens.

Dicey has failed to distinguish discretionary power from the abiteary

power. Arbitry power may be taxen as against the concept of rule of

law. In modern times in all countries including England, American India

the dicreationary power are conferred on the government. The present

trend is that discletionary power is given to the government or

administrative laws down some guidelines or principles according to

which the discreationary power is to oxercised.

S.C Advocates – on Record Association

Union of V Indian Air 1994 Sc 268

The supreme court has made it clean that the rule of law does not rule

out the existence of discretionary power to completely. For the rule of

law to become realistic there has to be room for directionary authority

within the operation the rule of law, even though it has been reduced to

the minimum extend necessary for the people guidelines or exclude

any aibilitary excerie of discretionary, authorit. The administration law

is much concerned with the control of the directionary power of

administeation.

2. According to Dicey the rule of law required that every person should be

subject to the ordinary courts of country every person means whether

eich or poor, irrespective of status or rank must be subject to the same

body of law and same court of countary Dicey has claimed that there

is no separate law of separate courts for government servant. He

criticized the system of droit administrative prevailing in France. In

Frances three all two types of courts. Administrative courts and

ordinary courts the disputes between the citizens and administration

are decided by the administrative courts while the other cases decided

by the civil courts. Dicey was very critical to the seprat court for

deciding the disputes between the administrative and the citizen. He

was of the opinon that the administrative courts in france were

established to protect the government officials. Consequently he

experessed the view that there was no rule of law in france later on he

himself relized his misconception about the administrative courts in

france the administrative courts have played important role in

controlling the administrative authority and providing quick and

effective semidies to citizens against the excess or villagal action of

adminstrations.

Beside even English system is not free from the special fourts nd

tribunals. Several special courts and tribunals have been established in

England to enforce special laws.

Offences against military law or naval law are tried by court martial

medical council has been established to by the member of the medical

peofession for provessional misconduct

3. Accourind to Dicey the rule of law required equal subjection of all

persons to the ordinary law of the countary and absence special

poivilages for any person including the administrative artharity in the

opinion of Dicey the rule law excludes the idea of any exemption of

officials from the jueisdiction of the ordinary courts. This peopositio of

Dicey does not appears to be correct even in England. Several person

enjoy some peivilages and immunities. For example udge enoy

immunitieses from suit in respect of their acts done in discharge of

their official functions.

4. third meaning given to the rule of law y Dicey that constitution is the

result of judicial decisions determing the lights of peivate person in

particular cases brought before the court is based on the peculiae

character of the constitution of great Britain. The constitution of great

Britain is unwritten and contains the principle evoluved through judicial

decisions. The meaning of rule of law does not hold good in India,

U.S.A etc for example the constitution of India is not the result o the

ordinary law of the land. The ordinary law is governed by the

constitution any law which is against the constitution of ndia is

decleared void.

Inspite of the above shortcoming in the definition of rule of law

by

Dicey he must be peised for drawing the attention of the scholars and

authorities to waids the nood of conterlling the discretionary powers of the

administration. The rule of law established by him requires that every action

of the administration must be bached by law and must have been done in

accordance with law. The role of dicey in the dexlopment and establishment

of the concept of bair justice cannot be denied.

Rule of law and constitution of India

In India the meaning of rule of law has been much explanded. It is regalded

as a part of the basic structure of the constitution and therefore it cannot be

abeogatted or destroyed even by parliament. It is also legarded as a part of

natural justice. The concept rule of law is used in contradistinction of the rule

of man. Every organ of the state under the constitution of India is regulated

and control by the rule of law. Absence of aebiterary power has been held to

be the first essential of rule of law. The rule of law requires that the discretion

conferred upon executive authorityes must be contained within already

defined limits free legal aid foor poor and rpedy teiol in criminal cases have

bean hold to be necessary adjuncts to rule of law. The rule of law permeates

the entire fabrict of the constitution of India and it forms one of its basic

features. The rule of excuted arbiteaniness.

Rule of law is basic structure of the constitution

Indiro Nehru Gandhi V Raj Narain

AIR 1975 SC 2299

Equality is a multi – coloured concept incapable of a single definition. It is a

nation of many shades and connotations. The peeamble of the constitution

quaintees equality of status and opportunity. They are nebulous concept and

it is not rure twether they can provide a rolid foundation to rear a basic

structure. The tpes of equality which our democlatic rebulic juanter are all

subsumed under specific articles of the cinstitution like article 14, 15, 16, 17,

25 etc and there is no other principle of equality which is essential feature of

our democeatic policy.

There is a geniuine concept of rule of law and that concept implier equality

and that concept implies equality before the law or equal subjection of all

classes to the ordinary law. But if rule of law is to be a basic structure of the

constitution one must find specific peovisions in the constitution emboding the

constituent elements of concept to be a basic structure, it must be a transtrial

concept ‘having its habitat within four corners of the constitution were enacted

with a view to ensures the rule of law. Even if it is assumed that rule of law is

a basic structure, the meaning and the constituent element of the concept

must be gathered from the coocting provisions of the constitution the equality

aspect of the rule of law and or democratic republicanism is provided in article

14 may be other articles reflected to do same duty.

The concept of equality which is basic to rule of law and that which is

regarded as the most fundamental postulate of epublicanism are both

embodied in article – 14.

It is beyond the pale of reasonable controvery that if there be any

unanedable feature of the constitution on the score that they from the poet of

the basic structure of the constitution they are that (1) India is a sovereign

democreatic Republic (2) equality of status and opportunity, shall be recued

to all its citizens (3) the state shall house no religion of its own and all persons

shall be equals entitled to freedom of conscience and the right freely to

peofless, peactise and propagate religion and that (4) the nation shall be

governed by a government of laws not of man.

Bachan Singh V State of Punjab

AIR 1982 SC 1325

The rule of law permeates the entiere basic of the constitution and indeed

babric of the constitution and indeed forms one of its basic features. The rule

of law excludes arbitracesness. Its postulate is intelligence without parsion

and reason freed from desire whenever we find arbiterian on onlearenablenes

there is denial of the rule of law. Law in the context of the rule of law does not

mean ans law encated by legislative authority how so ever arbitary, or

despotic it may be otherwise even under a disctatarship it would be possible

to say that there is rule of law because every law mode by the dictator how so

ever arbitary and unreansonable has to be obeyed and every action has to be

taken in conformity with such law. In such a cases too even where the

political setup is dictatorial, it is law that governs the relationship between

men and men and between man and state. But still it is not rule of law as

understood in modern juispeadence because in its terms the law itself in the

such a case being on emantation beam the absolute will of the dictator it is in

affect and substance the rule of man and not of law which prevails in such a

situation what is the necessary element of the rule of the law is that the law

must not be albiteary or irrational and it must satisty the test of reason and the

democratic form of polit seeks to ensure this element by mahin the framers of

the law accountable to the people.

Establishment of rule of law:-

The following provision of article – 14 of constitution of India establishes firmly

rule of law in the country.

Article – 14 :- Article 14 of the constitution of India provides for equality before

th law o the equal protection of the laws. According to article – 14 the state

inhall not deny to any person equality before the law or equal protection of the

laws within the territory of India.

Equality before the law implies the absence of many special privilege in

favoure of any individual. It ensures that all are equal before the law.

Equal protection of law ijplies equal protection of all in the same situation and

under like circumstances. The aim of the both the concepts is the equal

juistice. Article – 14 borbids class legistation but it does not forbids

classification which rest upon reasonable grounds of distinction. The

importance of the doctrine of reasonable classification should be examined in

the light of the doctrine of arbitrainess evolved recent by the supreme court

Article – 14 strikes at artibitrainess in state action because an albitary action

will involve negation of equality. If the state action is arbitrary on irrarotional it

would be treated as being against article -14 is primarily a gararantee against

arbitrariness in state action and the doctrine of reasonable classification has

been evolved only as a subridary rule for testing whether a particular action is

arbitrary or not. Right equality affords protection not only against

discliminatery laws passed by the legislature but also prevents aebitrary

discretion being vested in the executive. Often administrative authorities are

gien wide discretionary power. In such conditions the statute which confess

such discretionary power on the administrative authorities should lay down

some guidelines or principles according to which administrative authorites are

to excrcise them. The statute should contain clear legislative policy for which

the discretion is to be exercised. If the statute does not contain a clean

legislative policy or guidenlines for the exercise of the discretion conferned by

it on the government or the adminstarive authorities, the statute itself will be

disceminator and therefore against Article 14 and the way in which it applied

will not material. Equality is antithetic to arbitrarinous.

Exceptions:-

However it is to be noted that there are a few exceptions to the rule of

equality. According to article 361 the president on the governer or Raj

pramukh of the state shall not be answerable to any court for the exercise and

performance of the power and duties of his officer or any act done or

purporting to be done by him in the exercise and performance of there power

and duties provided that the conduct of the president may be brought under

review by any court, triburon or body appointed as derignated by either house

of parliament for the investigation of a charge under article or provided further

that this shall not restrict right of any person to bring appeopriate proceedings

against the government of a state. Besides as article 361 (2) provides, no

criminal priceeding shall be instituted or continued against the president of

India or the government of a state in any court during his term of office.

According to article 361 no process for the arrest or imprisonment of the

president or the governer of a state shall issue by any court during his team of

office. According to Article 361 (4) no civil proceeding in which the rulief is

claimed against the president or the Governor of a state shall be instituted

during his term of office in anyt court in respect of any act done or purported

to be done by him in his personal capacity, whether before or after he entered

upon his office as president or as governor of such state until the expiration

two months next after notice in writing has been delivered to the president or

governor as the case may be left his office stating the nature of the

proceeding the course of action therefore, the name description and plce of

residence of the party place of residence of the party place of residence of the

party by whom such proceeding are to be instituted and the relief which he

claim.

Besides foreign diplomats are also allowed immunity from the jurisdiction of

the courts.

The judges have also been allowed some special privileges and protection. A

judge of supreme Court or of the high court cannot be removed from his office

except by an order of the president passed after an address by each house of

parliament supported by a majority of total members of that house and by a

majority of not less than two thirds of the members of that house present and

voting has been presented to the president in the same session for such

removal on the ground of proved miss behavior or incapacity. Besides,

neither the peivilages nor the allowances of a judge of high court of of the

supreme court not his eights in respect of leave of absence or pension shall

be varied to his disadvantage after his appointment except to leave of

absence or pension shall be varied to his disadvantage after his appointment

after his appointment except in case of the procmbamatsion of financial

emergency under Article 360. the salary and allowances o the judges of

supreme courts are changed upon the consalidat4ed found of India and they

all not subject to vote of parliament;. Similarly the saleies and allowecnes of

the judges of high courts are changed on the considated fund of the state and

they are not votable.

Article – 121 provides that no discussion shall takes place in parliament with

respect to the in parliament with respect to the conduct of any judge of the

supreme court or of the high court in discharges of his dutyes except upon a

motion for presenting on address to the president praying for the removal of

the judge similarly no discussion shall take place in the state legistature with

respect to the conduct of any judge of the supreme court or of a high court in

the discharge of his duties the high court or the supreme court con punish for

contempt of itself.

However it is notable that such exceptions are found even in ingland such

exceptions have been created by the constitution which is the supreme law of

the4 countary and therefore. The persons enjoying such peioleges cannot be

said to be above the law.

Preservation and Enforcements or rule of law

The constitution of India does not only establish the rule of law but also

provides for its protection and enforcement. The judiciary has been made the

guardian and protector o the constitution.

Article – 141 provides that the law decleared by the supreme court

share be binding on all courts within the territors of India. Article – 141

provides that the supreme court in the exercise of its jueisdiction may pass

such decree or make such orders as it necessary for doing complete justice in

any cause or matter pending before it. Any decree so passed or order so

made shall be emborcible through out the territory or India in such manner as

many be preciabe by or under any law made by parliament and until provision

in that behalf is so made in such manner as the president may by order

prescribe. Subject to the provisions of any law made in this behalf by

parliament, the supreme court shall as respects the whole of the territory of

India have all the every power to make any order for the purpose of securing

the attendance of any person the discovery or production any document or

the investigation or punishment of any contempt of itself. Article – 144 makes

it clear that all authorities in the territory of India shall act in aid of the

supreme court. The authorities which do not comply with its direction shall be

liable for contempt of court.

For the enforcement of supremacy of the constitution which is supreme law of

the country the high court and the supreme court have been confereed on the

power of judicial review. The jurisdiction under article – 32, 136, 226, and 227

cannot be excluded even by the constitutional amendment. The judicial

review is the part of the basic feature of the constitution. Article – 32 makes it

clear that in case of infeingement of the fundamental right, the righ to move

the rupeeme court it itself a fundamental right. Article 226 empower the high

court to issue orders, writs etc. for the enforcement of any of the fundamental

rights and also for the enforcement of any other right under any other right.

Under article 32 the supreme court can issue order weists etc. only for the

enforcement of any of the fundamental rights. In addition the contempt power

of supreme court and high court has also played important role in the

enforcement of the rule of law in the country. The contempt jurisdiction is very

wide and lineament in the court of record.

Chapter – IV

Who may claim or to whom the protection is available:-

Article – 14 confers right an all persons within the teuitory of India. The benefit

of the article is not limited to citizens as under article – 19. the word ‘person’

include not only natural person but also legal or jueistic persons. Thus all

companies, registered societies, statuary corporations or any societies

statuary corporations or any other type of legal person can claim right of

equality guarnated by Article – 14.

One question which needs enquiry is whether the word ‘person’ in article – 14

include state. In other words whether state can claim equality under article 14.

this question becomes more complicated as a result of wider definition of

state in Article 12.

The constitution nowhere defines the word ‘perrom’ as used in article 14.

according to reaction 3 (42) of general clauses act the word ‘person includes

any company association or body of individuals. Whether incorparaed or not

the supleme court has not considered this question. This question was raised

in certain cases before high courts.

In Moti Lal V UP Government

AIR 151 AII 257

Chief justice Malik o the allahabad high Court held that. When the

government carries on business as incidental to its ordinary functions. Article

– 14 cannot be invoked where however, it carrier on commercial undertaking

on competitive basis and the undertaking is not indicidentla to its ordinary

functions whether the state can claim differential treatment in matter of pemit

would depend upon whether stat can or cannot be separately clarified.

In support of this opinion he said that if the word ‘person’ in article 14

was interpreted to include ‘state’ then article – 14 would conflict with article

289. the activity in question was transport business like a commercial activity

and the majority of the coverts was of the view that in so far as section 42 (3)

of the motor vehicles act 1939 exempted state transport buses from the

application of certain provisions was in conflict with article – 14 and therefore

void.

In Amraoti Electricity Supply Co. LTD

N.H Majumdar AIR 1953 Nag 35

It was held that when a state government performs its essential governmental

function, it is different all other person natural or artificial.

In Kesho Prasad V State of M.P.

AIR 1955 Nag 177.

It was held that article – 14 maha a distinction between ‘state’ and ‘person’

wheareas the duty of guarantee to equal protection is cost on the rate the

discrimination which it prohibits is between persons. In the opinion of court

the word state has been used in the special sense as defined in article 12

which takes it out of the category of person. The court further observed that it

is only when the state engager in activity which is outside the scope of it,

ordinary functions of government, then the questions of its being categorized

as a person for purpose of altide 14 can asise.

The effect of these three sulings is that when state or government exercise

essential governmental powers, it is not person within article – 14 but when

the state or government engager in a business or corporations, it subjects

itself to the same obligation as are impared upon private individual or

corporations.

In Shiv Prasad V Punjab State

AIR 1957 Punj 150

In that case section 4 of peovincial insolvency oct which provided that an

order of discharge shall not release that insolvent from any debt due to

government ws chalanged for violation of article – 14 on the around that it had

the effect of discrimination between various kinds of creditors. The high court

held that neither the state. Not government was person within article in of the

constitution

The object of the guarantee being protection against discrimination by state, it

would be illogical to suggest that ‘person’ in article – 14 includes state

because that would mean that gurantee of equal protection can be therefore

better if the word person in contrived to as to exclude all authorities which are

the state with the meaning of article – 12. since the distinction between

government and non governmental functions has been dislegarded by the

supreme court in recent cases in interpreting the word state in article 12 it

should be irrelevant in interputiny the word ‘Person’ also

Against whom it may be claimed

According to article – 14 state shall not deny to any person equality beore the

law or equal protection of laws within the teiory of India. It indicates that the

right is available against the state and not against the private persons or

bodies. The meaning of the term ‘State’ has been given in article 12. it is to be

noted that the state is liable to pay compensation for loss or injury caused to a

citizen as a result of its arbitrary action

What is state against whom it may be claimed:-

According to Article – 12 term ‘State’ includes

1. All local or other authorities within the territory of India

2. all local or other author under the control of government of India of the

local or other authorties are within the teritoyr of India, no further

condition is required to be fulfilled and they will be included within the

meaning of term state but if the local or other authorityes are outerside the

territory of India. They will be included within the meaning of the term ‘state if

they are under the control of government of India

an authority will be considered under the control of the government of India, if

the government of India has right to give direction to the authority to function

in a particular manner. Such control is possible in a case of purely executive

or administrative authority. Such is not possible in the case of judicial or

quassi judicial authority to decido a particular matters before it in a particular

manner.

Territory of India – The territory of India shall compeise the tersitories of the

states the union territories specified in first schedule and such other other

tevitors as may be aquived.

Local authority:- According to sub reaction 31 of section 3 of the general

clauses act 1897 “local authority shall mean a municipal committee. District

board body of commissiones or other authority legal entitled to or interested

by the government within the control or management of a municipal or local

fund. According to entry 5 of the first 11 of 7th schedule ‘local government

includes municipal corporation improvement trust, district boards, mining

settlement authorities and other local authorities for the purpore of local self

government or village administration. Village punchayat is also indude the

term of local authority.

Other authorities.

These is much conterversy as to the meaning and important of the term other

authorityes.

In the case = Electricity board V Mohan Lal

AIR 1967 SC 1857

Supreeme court held that the term ‘other authorities includes all the authorties

created by the constitution or statute and on whom powers are conferred by

law, whether as not they are engged in performing government function. The

statutory bodies like oil and natural gas commission, life insurance

corporation. Industrial finance corporation. Luknow Development authority

M.K. Gupta AIR 1994 (1) Sec 243

Howes today the issue is not only of award of compensation but who should

bear the prevent . the concept of authority and power exercised by public

functrionaries has many dimensions. The authority empowered to function

under a statute while exercising power discharges public duty. In discharging

this duty honestly or bona fide but if it is found that exercise of direction was

male side and the complainant is entitle to compensation for mental and

physical harassment then the officer can no more claim to be under the

protective cover.

But when it arises due to arbitary or capricious behaviour then it losses it

individual character and assumes social significance harassment of a

common law by public authorityes is socially abhosing and legally

impermissible. It may harm him personally but the injury to the society is far

more grievous. The awardof compensation for harassment by public

authorities not only compersates the individual statistces him personally but

help in curing social evil. It may result in improving the work culture and help

in changing the outlook

3.