Fundamental Rights & Art 12

 Features of Fundamental Rights

• Fundament Rights are a group of rights that are guaranteed to all the citizens of the nation by the Constitution of India under Part III (Articles 12-35).
• These rights apply universally to all citizens residing in the nation, irrespective of their race, place of birth, religion, caste or gender.
• Part III of the Constitution is described as the Magna Carta of India. ‘Magna Carta’, the Charter of Rights issued by King John of England in 1215 was the first written document relating to the Fundamental Rights of citizens.
• They are recognized by law as rights requiring a high degree of protection from the government and they cannot be violated by the Government. Obligation of protecting these rights lies on the government or the state or its authorities. FR impose negative obligations on the state not to encroach on individual liberty in its various dimensions.
• FRs are justiciable The constitution allow the person to move directly to the Supreme Court for the reinforcement of his fundamental right as and when they are violated or restricted. 
• Fundamental rights cannot be enforceable against individuals and private entities except, Right against untouchability (Art 17), Right against exploitation (Art23 &24), Right to Personal liberty(Art 21) 
• The Fundamental Rights derived their inspiration from US Constitution.
• FRs are NOT absolute: in the sense that the parliament can curtail them or put reasonable restrictions for fixed period of time. 
• Suspension of Fundamental Rights: All the Fundamental Rights are suspended during National Emergencies except the rights guaranteed under Article 20 and 21

There are six fundamental rights of Indian Constitution along with the constitutional articles related to them are mentioned below:

1. Right to Equality (Article 14-18)
2. Right to Freedom (Article 19-22)
3. Right against Exploitation (Article 23-24)
4. Right to Freedom of Religion (Article 25-28)
5. Cultural and Educational Rights (Article 29-30)
6. Right to Constitutional Remedies (Article 32)

There was one more fundamental right in the Constitution, i.e., the right to property. However, this right was removed from the list of fundamental rights by the 44th Constitutional Amendment. Right to property is still a constitutional right under article 300A. 

Fundamental rights available to both citizens and foreigners except enemy aliens

• Article 14 – Equality before the law and equal protection of laws.
• Article 20 – Protection in respect of conviction for offences.
• Article 21 – Protection of life and personal liberty.
• Article 21A – Right to elementary education.
• Article 22 – Protection against arrest and detention in certain cases.
• Article 23 – Prohibition of traffic in human beings and forced labor.
• Article 24 – Prohibition of employment of children in factories etc.
• Article 25 – Freedom of conscience and free profession, practice and propagation of religion.
• Article 26 – Freedom to manage religious affairs.
• Article 27 – Freedom from payment of taxes for promotion of any religion.
• Article 28 – Freedom from attending religious instruction or worship in certain educational institutions.

Fundamental Rights Available Only to Citizens of India

• Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
• Article 16 – Equality of opportunity in matters of public employment.
• Article 19 – Protection of six rights related to freedom – (a) 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; and (f) to practice any profession, or to carry on any occupation, trade or business.
• Article 29 – Protection of language, script and culture of minorities.
• Article 30 – Right of minorities to establish and administer educational institutions.

Restrictions on Fundamental Rights

• For the security of the state.
• For the maintenance and promotion of the interest of women, children and the socially and educationally backward classes
• To maintain friendly relations with foreign states
• In case of defamation
• Contempt of courts
• For the maintenance of public order, decency and morality

Article 12 – State

The state comprises of the following:

• Government and Parliament of India i.e the Executive and Legislature of the Union
• Government and Legislature of each State i.e the Executive and Legislature of the various States of India
• All local authorities within the territory of India
• All other authorities, who are under the control of the Government of India

Government (Union and state), Parliament and State Legislature

• Parliament: The parliament comprises of the President of India, the lower house of the parliament that is the Lok Sabha as well as the upper house of the Parliament that is the Rajya Sabha.
• Executive: It is that organ which implements the laws passed by the legislature and the policies of the government. The rise of the welfare state has tremendously increased the functions of the state, and in reality, of the executive. In common usage, people tend to identify the executive with the government. In contemporary times, there has taken place. A big increase in the power and role of the executive in every state. The executive includes the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.
• Legislature: The legislature is that organ of the government which enacts the laws of the government. It is the agency which has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws. Legislature enjoys a very special and important in every democratic state. It is the assembly of the elected representatives of the people and represents national public opinion and power of the people.
• Government: The law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal and family courts at the district level form the Judiciary.
• State Legislature: The legislative body at the state level is the State Legislature. It comprises of the state legislative assembly and the state legislative council.

Local Authorities

• Before understanding what a local authority is, it is important to define Authorities. According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. When read under Article 12, the word authority means the power to make laws (or orders, regulations, bye-laws, notification etc.) which have the force of law. It also includes the power to enforce those laws
• Local Authority: As per Section 3(31) of the General Clauses Act, 1897, “Local Authority shall mean a municipal committee, district board, panchayat body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund.”

Test to determine Local Authorities

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be characterized as a ‘local authority’ the authority concerned must;

• Have a separate legal existence as a corporate body
• Not be a mere government agency but must be legally an independent entity
• Function in a defined area
• Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
• Enjoy a certain degree of autonomy (complete or partial)
• Be entrusted by statute with such governmental functions and duties as are usually entrusted to locally (like health, education, water, town planning, markets, transportation, etc.)
• Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or fees.

Other Authorities

The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time.

So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several judgments as per the facts and circumstances of different cases.

• In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, unaided universities.
• In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to the in interpreting ‘other authorities’. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.
• Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law, it is obvious that the body will having powers which can affect the fundamental right and if a body having so much power then it is necessary that it will qualified as other authorities.. The court said that it is not necessary that statutory authority need not be engaged in performing government or sovereign functions.
• In RD Shetty v. Airport Authority of India, Whether airport authorities is a state?The Supreme Court concluded in this decision that if a body is a government agency, it can be an authority under Article 12 regardless of whether it is a statutory corporation, a government company, or a registered society. As a result, the International Airport Authority of India is a State under Article 12 because it was established under Airport Authority Act (AAA) which is an Act of Parliament.

 Justice P.N. Bhagwati administered a 5-point test. This is a test to see if a body is a government agency or instrumentality, and it goes like this:

1. Financial resources of the State, where State is the chief funding source i.e. the entire share capital is held by the government.
2. Deep and pervasive control of the State
3. The functional character being Governmental in its essence, meaning thereby that its functions have public importance or are of a governmental character.
4. A department of Government transferred to a corporation.
5. Enjoys “monopoly status” which State conferred or is protected by it.

• In Ajay Hasia v, Khalid Mujib case, the SC has set a basic framework guideline for determining “other authorities” within the meaning of State under Article 12, which are as follow:
• the entire capital share capital of the corporation is held by Government;
• Enjoy monopoly status;
• Department of government is transferred to corporation;
• The financial aid by the government in the expenditure of the corporation;
• The functions of the corporation of public importance and closely related to the governmental functions: and
• Existence of deep and pervasive State Control:

The Supreme Court has evolved a new concept of ‘instrumentality’ or ‘agency’ of Government, widening the scope of Article 12. That means not only constitutional or statutory authority has been included in the definition of State but it also includes the non-statutory authority which exercises the public function and control by the Government.

Whether the judiciary falls under the meaning of the State under Art 12?

• In Naresh v. State of Maharashtra, can we filed case against court for infringing the fundamental right? The court held that the fundamental right is not infringed by the order of the court and no writ can be issued to high court, hence it does not comes under state.  
• In AR Antulay V. RS Nayak and NS Mirajakar vs. state of Maharashtra Court held that judiciary while exercise its rulemaking power under Article 145 or judiciary is exercising any of its administrative power , then it  shall be cover under the ambit of the state within the meaning of Article 12 and one can claim breach of his fundamental right. But judiciary is not a state when it is exercising its judicial power. Therefore, in this case, it depends on the nature of function which the body is exercising.