ARTICLE 12

Unless the context otherwise requires, the State includes the Government and
Parliament of India 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 Government and Parliament of India means:Government means any

department or institution of department; Parliament shall consist of the
President, the House of People and Council of State.

The Government and Legislature of each State means: State Legislatures

of each State consist of the Governor, Legislative Council, and Legislative
Assembly or any of them.

All Local Authorities;It means, Municipal boards Panchayats, Body of Port

Commissioner, and other legally entitled to or entrusted by the
government.

and other authorities: The most noteworthy expression under Article 12 is

other authorities as this expression is not defined in the Constitution.
Thus it is for the courts to interpret this term, and it is clear that the wider
this term is interpreted, the wider the ambit of fundamental rights would
become.

In University of Madras v Shanta Bai (AIR 1954 Mad 67), the Madras High
Court evolved the principle of e jus dem generis which meant only
authorities that perform governmental or sovereign functions can be
included under article 12.

In Electricity Board, Rajasthan v. Mohan Lal (AIR 1967 SC 1857), the

Supreme Court held that other authorities would include all authorities
created by the Constitution or statute on which powers are conferred by
law. It was not necessary that the statutory authority should be engaged
in performing government or sovereign functions.

This is clearly wide enough to include all bodies created by a statute on

which powers are conferred to carry out governmental or
quasigovernmental functions. Hence "other authorities include within it
every authority created by a statute and functioning within the territory of
India, or under the control of the Government of India.Hence the court said
that they do not see any reason to narrow down this meaning in the
context in which the words "other authorities" are used in Art. 12 of the
Constitution.

In Sukdev Singh v. Bhagat Ram Sardar Singh Raghuvanshi, (1975 (1) SCC
421), the court had to deal with the question, whether statutory
corporations such as the ONGC, IFC and LIC, came within the definition of
the State under article 12. The court held that the three corporations
were the State as the three corporations were created by statutes, had

the statutory power to make binding rules and regulations, and were
subject to pervasive government control.

In Ajay Hasia v. Khalit Mujib Sehravarai, (AIR 1981 SC 487), where a

society registered under the societies registration act running the regional
engineering college, sponsored, supervised and financially supported by
the government was held to be an authority for the purposes of Article
12.The court laid down the following tests to adjudge whether a body is an
instrumentality of the government or not:
1.If the entire share capital of the corporation is held by the government,
2.Where the financial assistance of the state is so much as to meet almost
entire expenditure of the corporation.
3.Whether the corporation enjoys monopoly status, which is state
conferred or state protected.
4.Existence of deep and pervasive state control.
5.If the functions of the corporation are of public importance.
6.If a department of government is transferred to corporation

If on a consideration of these factors it is found that the corporation is an

instrumentality or agency of government, it would be an authority and
therefore, state within the meaning of article 12.

However, these tests are not conclusive or clinching, and it must be

realised that they 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 the State.

In the case of R D Shetty vs. International Airport Authority of India,

International Airport Authority is a body corporate constituted under
International Airport Authority Act, 1971. (BOOK)

It was further urged before the Supreme Court that the International
Airport Authority, being a State within the meaning of Article 12 of the
Constitution, was bound to give effect to the condition of eligibility set by
it and not entitled to depart from it at its own sweet will without rational
justification.

Supreme Court held that where the Government is dealing with the
public, whether by way of giving jobs or entering into contracts or issuing
quotas or licenses or granting any other form of largesse, the Government
cannot act arbitrarily at its sweet will and like a private individual deal with
any person it pleases,

Private Entities as State

In M.C. Metha v. Sri Ram Fertilizers Ltd., (1987 SCR 819), the court
expanded the ambit of article 12: primarily due to the social consequence
of our corporate structure. The court stressed that the ambit of article 12
needs to be enlarged so as to bring private companies also under the
discipline of fundamental rights.

Further in the case of J.P. Unni Krishnan v. State of A.P., (1993 (1)
SCC 645), the court held that private educational institutions cannot be
allowed to violate article 14 as they are performing a function in
furtherance of a state function, that is, the provision for education.

In Zee Telefilms Ltd. v. Union of India, (2005 (4) SCC 649), the court
excluded Board of Control for Cricket in India (BCCI), from the ambit of
article 12. However it conceded that relief against BCCI could be available
in high courts under article 226.

The National Commission to Review The Working Of The

Constitution 2002, had recommended that in article 12 of the
Constitution, the following explanation should be added; Explanation: In
this Article, the expression other authorities shall include any person in
relation to such as it functions which are of a public nature. The rationale
was that, after globalisation and privatisation, traditional functions of a
welfare state had transferred to individuals and private agencies. Thereby,
fundamental rights and duties that bound the state also passed to them.

The Law Ministry however opposed the suggestion that private entities
performing public function be brought within the ambit of Article 12 to
safeguard public interest. The Ministry believed that making fundamental
rights enforceable against private bodies would be against the concept
enshrined in the Constitution that the protection against violation of the
rights by individuals must be sought in the ordinary law.
ARTICLE 32

Remedies for enforcement of rights conferred by this Part ,(1) The right to
move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed

(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,
for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by

clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to

exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution

We have already seen under Article 32(4) that the Right to Constitutional
Remedies may be suspended under certain circumstances. These
circumstances are dealt with in detail in the chapter on Emergency
Provisions of the Constitution. Chiefly, these emergencies are three:
External aggression, internal disturbance and breakdown of constitutional
machinery in the States.

Under such conditions the President of India is empowered to proclaim an

emergency. During the period of emergency he may by order declare that
the right to move any Court for the enforcement of any fundamental right
shall remain suspended up to a maximum period of the existence of the
emergency (Art. 359). Every such order should be placed before each
House of Parliament as soon as possible.

Any provision in any Constitution for Fundamental Rights is meaningless

unless there are adequate safeguards to ensure enforcement of such
provisions.

Article 32 is referred to as the "Constitutional Remedy" for enforcement

of Fundamental Rights. This provision itself has been included in the

Fundamental Rights and hence it cannot be denied to any person. Dr.
B.R.Ambedkar described Article 32 as the most important one, without
which the Constitution would be reduced to nullity. It is also referred to as
the heart and soul of the Constitution. By including Article 32 in the
Fundamental Rights, the Supreme Court has been made the protector and
guarantor of these Rights.

In addition, the Judiciary has the power to issue the prerogative writs.
These are the extraordinary remedies provided to the citizens to get their
rights enforced against any authority in the State. These writs are Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto.

Both, High Courts as well as the Supreme Court may issue these writs.

In addition to the prescribed five types of writs, the Supreme Court may
pass any other appropriate order. Moreover, only the questions pertaining
to the Fundamental Rights can be determined in proceedings against
Article 32.

Under Article 32, the Supreme Court may issue a writ against any person
or government within the territory of India.

Where the infringement of a Fundamental Right has been established, the

Supreme Court cannot refuse relief on the ground that the aggrieved

person may have remedy before some other court or under the ordinary
law.

The relief can also not be denied on the ground that the disputed facts
have to be investigated or some evidence has to be collected.

Even if an aggrieved person has not asked for a particular writ, the
Supreme Court, after considering the facts and circumstances, may grant
the appropriate writ and may even modify it to suit the exigencies of the
case.

Normally, only the aggrieved person is allowed to move the Court. But it
has been held by the Supreme Court that in social or public interest
matters, any one may move the Court.

Any piece of legislation or law, which tends to interfere with the power of
Supreme Court under Article 32 shall be declared as void. Hence, there is
no way that the legislative or the executive authority can by-pass the
power and responsibility entrusted to the Supreme Court by the
Constitution.

WRITS

1. Writ of Habeas corpus :

It is the most valuable writ for personal liberty. Habeas Corpus means,
you may have the body." A person, when arrested, can move the Court
for the issue of Habeas Corpus. It is an order by a Court to the detaining
authority to produce the arrested person before it so that it may examine
whether the person has been detained lawfully or otherwise. If the Court is
convinced that the person is illegally detained, it can issue orders for his
release.

The writ is issued to produce a person who has been detained , whether in
prison or in private custody, before a court and to release him if such
detention is found illegal.

In the case of the Additional district Magistrate of Jabalpur v.Shiv Kant

Shukla2, popularly known as the Habeas Corpus case, which came up for
hearing in front of the Supreme Court in December 1975. Given the
important nature of the case, a bench comprising the five senior most
judges was convened to hear the case. The bench opined in April 1976,
with the majority deciding against habeas corpus, permitting unrestricted
powers of detention during emergency. Justices A.N RAY, PN Bhagwati
Y.V.Chandrachud and M.H Beg, stated in the majority decision .

However, Justice Khanna resisted the pressure to concur with this majority
view. He wrote in his dissenting opinion: The Constitution and the laws of
India do not permit life and liberty to be at the mercy of the law speaking

through the authority of the court shall be absolutely silenced and

rendered mute... detention without trial is an anathema to all those who
love personal liberty.

In Kanu Sanyal v. District Magistrate.

The court in that case held that habeas corpus was essentially a
procedural writ dealing with the machinery of justice. The object
underlying the writ was to secure the release of a person who is illegally
deprived of his liberty. The writ, declared the court is a command
addressed to the person who is alleged to have another person unlawfully
in his custody, requiring him to bring the body of such person before the
court in order that the circumstances of the detention may be enquired
into and an appropriate judgment rendered upon judicial enquiry into the
alleged unlawful restraint. The characteristic element of the writ and the
theory behind the whole procedure observed the court was the immediate
determination of the right of the applicant's freedom and his release when
the detention is found to be unlawful.

The Writ of Mandamus : Mandamus is a Latin word, which means

"We Command". Mandamus is an order from a superior court to a lower

court or tribunal or public authority to perform an act, which falls within its
duty. It is issued to secure the performance of public duties and to enforce
private rights withheld by the public authorities. Simply, it is a writ issued
to a public official to do a thing which is a part of his official duty, but,
which, he has failed to do,so far. This writ cannot be claimed as a matter
of right. It is the discretionary power of a court to issue such writs.

Mandamus lies against authorities whose duty is to perform certain acts

and they have failed to do so. Under following circumstances mandamus
can be issued :

(i) The applicant must have a legal right to the performance of a legal
duty. It will not issue where to do or not to do an act, is left to the
discretion of the authority. It was refused where the legal duty arose from
an agreement which was in dispute. The duty to be enforced by a writ
mandamus could arise by a provision of the Constitution or of a statute or
of the common law.

(ii) The legal duty must be of a public nature. In The Praga Tools
Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of
India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court stated
that mandamus might under certain circumstances lie against a private
individual if it is established that he has colluded with a public authority.

No mandamus will lie against an officer or member of parliament or an

officer or member of the legislature of a State In whom powers are vested
by or under the Constitution for regulating procedure or the conduct of
business or for maintaining order in Parliament or the State legislature.

Mandamus will not issue to a legislature to forbid it from passing

legislation repugnant to the fundamental rights.

Mandamus was issued to a municipality to forbid collection of a tax ultra

vires the Municipalities Act, to a University directing it to forbear from
giving effect to an order made in violation of its own rules.

Article 329 of the Constitution precludes any law courts from entertaining
electoral matters such as the validity any law relating to the delimitation
of constituencies or the allotment of seats to such constituencies, made or
purporting to beside under article 327 or article 328 and provides that no
election to either House of Parliament or to the House or either House of
the legislature of a State shall be questioned except by an election petition
presented as provided by Parliament

The Writ of Quo-Warranto

The word Quo-Warranto literally means "by what warrants?" It is a writ

issued with a view to restraining a person from acting in a public office to
which he is not entitled. The writ of quowarranto is used to prevent illegal
assumption of any public office or usurpation of any public office by
anybody.

For example, a person of 62 years has been appointed to fill a public office
whereas the retirement age is 60 years. Now, the appropriate High Court
has a right to issue a writ of quo-warranto against the person and declare
the office vacant.

The Writ of Prohibition : Writ of prohibition means to forbid or to stop

and it is popularly known as 'Stay Order. This writ is issued when a lower
court or a body tries to transgress the limits or powers vested in it. It is a
writ issued by a superior court to lower court or a tribunal forbidding it to
perform an act outside its jurisdiction.

After the issue of this writ, proceedings in the lower court etc. come to a
stop.

The Writ of Certiorari : Literally, Certiorari means to be certified. The

writ of certiorari is issued by the Supreme Court to some inferior court or
tribunal to transfer the matter to it or to some other superior authority for
proper consideration.

Writs of Prohibition and Certiorari

The writ of prohibition is issued by any High Court or the Supreme Court to
any inferior court, prohibiting the latter to continue proceedings in a
particular case, where it has no legal jurisdiction of trial. While the writ of
mandamus commands doing of particular thing, the writ of prohibition is
essentially addressed to a subordinate court commanding inactivity. Writ

of prohibition is, thus, not available against a public officer not vested with
judicial or quasi-judicial powers.

The Supreme Court can issue this writ only where a fundamental right is
affected.

The writ of certiorari can be issued by the Supreme Court or any High
Court for quashing the order already passed by an inferior court. In other
words, while the prohibition is available at the earlier stage, certiorari is
available on similar grounds at a later stage. It can also be said that the
writ of prohibition is available during the pendency of proceedings before a
sub-ordinate court, certiorari can be resorted to only after the order or
decision has been announced. There are several conditions necessary for
the issue of writ of certiorari, which are as under:

(a) There should be court, tribunal or an officer having legal authority to

determine the question of deciding fundamental rights with a duty to act
judicially.

(b) Such a court, tribunal or officer must have passed an order acting
without jurisdiction or in excess of the judicial authority vested by law in
such court, tribunal or law. The order could also be against the principle of
natural justice or it could contain an error of judgment in appreciating the
facts of the case.
Article 21

Protection of life and personal liberty: No person shall be deprived of his

life or personal liberty except according to procedure established by law.

The main object of Article 21 is that before a person is deprived of his life
or personal liberty by the State, the procedure established by law must be
strictly followed.

Right to Life means the right to lead meaningful, complete and dignified
life. It does not have restricted meaning. It is something more than
surviving or animal existence. The meaning of the word life cannot be
narrowed down and it will be available not only to every citizen of the
country.

As far as Personal Liberty is concerned , it means freedom from physical

restraint of the person by personal incarceration or otherwise and it
includes all the varieties of rights other than those provided under Article
19 of the Constitution. Procedure established by Law means the law
enacted by the State. Deprived has also wide range of meaning under the
Constitution. These ingredients are the soul of this provision.

The fundamental right under Article 21 is one of the most important rights
provided under the Constitution which has been described as heart of
fundamental rights by the Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex
Court in Gopalans case that the contents and subject matter of Article 21
and 19 (1) (d) are not identical and they proceed on total principles. In this
case the word deprivation was construed in a narrow sense and it was held
that the deprivation does not restrict upon the right to move freely which
came under Article 19 (1) (d). At that time Gopalans case it was the
leading case in respect of Article 21 along with some other Articles of the
Constitution, but post Gopalan case the scenario in respect of scope of

Article 21 has been expanded or modified gradually through different

decisions of the Apex Court and it was held that interference with the
freedom of a person at home or restriction imposed on a person while in
jail would require authority of law.

Whether the reasonableness of a penal law can be examined with

reference to Article 19, was the point in issue after Gopalans case in the
case of Maneka Gandhi v. Union of India , the Apex Court opened up a new
dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one.

A.K. Gopalan vs The State Of Madras on 19th May, 1950 1950 AIR 27
Bench: Kania,Hiralal

A.K. Gopalan v. State of Madras was the first case filed challenging the
constitutional validity of an act under the provision of A.21 of the Indian
Constitution.

It's a much controversial ruling in the sense that , if we think about it now,
one wonders whether the Supreme Court would have given the same
ruling in favor of the state had this case come before it today..

The petitioner who was detained under the Preventive Detention Act (Act
IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas
corpus and for his release from detention from Madras Jail, on the ground
that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of
the Constitution and was consequently ultra rites and that his detention
was therefore illegal.

Honble Supreme Court held that :

The Preventive Detention Act 1950, is intra vires the Constitution with the
exception of S. 14 which is illegal and ultra vires.

The invalidity of S. 14 does not affect that rest of the provisions in the Act.
Section 12 of the Act also does not conform to the provisions of the
Constitution of India and is therefore ultra vires.

Note: The Preventive Detention Act 1950 ceased to have effect as of 31st
December, 1969.

12. Duration of detention in certain cases.--(1) Any person detained in any

of the following classes of cases or under any of the following
circumstances may be detained without obtaining the opinion of an
Advisory Board for a period longer than three months, but not exceeding
one year from the date of his detention, namely, where such person has
been detained with a view to preventing him from acting in any manner
prejudicial to--

(a) the defence of India, relations of India with foreign powers or the
security- of India; or (b) the security of a State or the maintenance of
public order.

14. Disclosure of grounds of detention, etc.--(1) No court shall, except for

the purpose of a prosecution for an offence punishable under sub-section
(9,), allow any state- ment to be made, or any evidence to be given.
before it of the substance of any communication made under section 7 of
the grounds on which a detention order has been made against any
person or of any representation made by 'him against such order; and
notwithstanding anything contained in any other law, no court shall be
entitled to require any public officer to produce before it, or to disclose the
substance of, any such communication or representation made, or the
proceedings of an Advisory Board or that par of the report of an Advisory
Board which is confidential.

(2) It shall be an offence punishable with imprisonment for term which

may extend to one year, or with fine, or with both, for any person to
disclose or publish without the previous authorisation of the Central
Government or the State Government, as the case may be, any contents
or matter purporting to be contents of any such communication or
representation as is referred to in sub-section (1): Provided that nothing in
this sub-section shall apply to a disclosure made' to his legal adviser by a
person who is the subject of a detention order.

Main Constitutional Provisions involved in this Case:

A .21. No person shall be deprived of his life or personal liberty except

according to procedure established by law.

A.22(7) of the Indian Constitution which says that: Parliament may by law
prescribe- (a) the circumstances under which, and the class
or classes of cases in which, a person may be detained for a period longer
than three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance with the
provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes
of cases be detained under any law providing for preventive detention;
and

(c) the procedure to be followed by an Advisory Board in an inquiry under

[sub-clause (a) of clause (4)].

And clause 4 of A.22 lays down: No law providing for preventive detention
shall authorise the detention of a person for a longer period than three
months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are
qualified to be appointed as, Judges of a High Court has reported before
the expiration of the said period of three months that there is in its opinion
sufficient cause for such detention: Provided that nothing in this subclause shall authorise the detention of any person beyond the maximum
period prescribed by any law made by Parliament under sub-clause (b) of
clause (7); or

(b) such person is detained in accordance with the provisions of any law
made by Parliament under subclauses (a) and (b) of clause (7).

A .19. (1) All citizens shall have the right(a) to freedom of speech and expression; (b) to assemble peaceably and
without arms; (c) to form associations or unions; (d) to move freely
throughout the territory of India; (e) to reside and settle in any part of the
territory
of India; (f) omitted; (g) to practise any profession, or to carry on any
occupation, trade or business.

The courts were not at liberty to declare an Act void because in their
opinion it is opposed to a spirit supposed to pervade the Constitution but
not expressed in words. Where the fundamental law has not limited, either
in terms or by necessary implication, the general powers conferred upon
the Legislature, Courts cannot declare a limitation under the notion of
having discovered something in the writ of the Constitution which is not
even mentioned in the instrument.

It is difficult upon any general principles to limit the omnipotence of the

sovereign legislative power by judicial interposition, except so far as the
express words of a written Constitution give that authority. If the words be
positive and without ambiguity, there is no authority for a Court to vacate
or repeal a Statute on that ground alone.

Any assumption of authority beyond this would be to place in the hands of

the judiciary powers too great and too indefinite either for its own security
or the protection of private rights.

Art. 19 pre-supposes that the citizen to whom the possession of these

fundamental rights is secured retains the substratum of personal freedom
on which alone the enjoyment of these rights necessarily rests. But where,
as a penalty for committing a crime or otherwise, the citizen is lawfully
deprived of his exercising or enforcing the rights referred to in cl. (1).
Deprivation of personal liberty in such a situation is not, within the

purview of Art. 19 at all but is dealt with by the succeeding Arts. 20 and
21.

In other words Art. 19 guarantees to the citizen the enjoyment of certain

civil liberties while they are free, while Arts. 20-22 secure to all persons
citizens and non-citizens - certain constitutional guarantees in regard to
punishment and prevention of crime.

Article 21 gives protection to life and personal liberty to the extent therein
mentioned. It does not recognise the right to life and personal liberty as an
absolute right but delimits the ambit and scope of the right itself. The
absolute right is by the definition in that article out down by the risk of its
being taken away in accordance with procedure established by law. It is
this circumscribed right which is substantively protected by Art. 21 as
against the executive as well as the Legislature, for the Constitution has
conditioned its deprivation by the necessity for a procedure established by
law made by itself.

Jusitce Patanjali Sastri further observed that - Whatever may be the

generally accepted connotation of the expression "personal liberty", it is
used in Art. 21 in a sense which excludes the freedom dealt with in Art. 19.
Thus personal liberty in the context of Part III of the Constitution is
something distinct from the freedom to move freely throughout the
territory of India.

Principles of Natural Justice and A.21

Kania C. J. : Patanjali Sastri; B. K. Mukherjea and Das JJ. Were of the

opinion that- "Procedure established by law" means procedure prescribed
by law of State. These words are to be taken to refer to a procedure which
has a statutory origin, for no procedure is known or can be said to have
been established by such vague and uncertain concepts and "the
immutable and universal principles of natural justice"
As per B. K. Mukherjea J. - On a plain reading of Art. 21 the meaning seems
to be that you cannot deprive a man of his personal liberty unless you
follow and act according to the law which provides for deprivation of such
liberty. The expression 'procedure' means the manner and form of
enforcing the law.

The word 'established' ordinarily means fixed or laid down' and if 'law'
means not any particular piece of law but the indefinite and indefinable
principles of natural justice which underlie positive systems of law, it
would not at all be appropriate to use the expression 'established' for
natural law or natural justice cannot establish anything like a definite
procedure.

Furthermore, Kania C. J. : Patanjali Sastri; B. K. Mukherjea and Das JJ.

observed that - The word "law" in Art. 21 has not been used in the sense
of "general law" connoting what has been described as the principles of

natural justice outside the realm of positive law. "Law" in that article is
equivalent to State-made law.

A.K. Gopalan v. State of Madras, though with its many flaws, still stands as
a judicial beacon(pillar-to give light to) for Part III of the Constitution when
viewed through the eyes of the historical kaleidoscope of judicial
interpretation.
It helps us to understand the initial concepts, to know the earlier
assumptions of interpretation from which our great judiciary has evolved
to its behemoth position as the champion of fundamental and human
rights as it stands today.