Constitutional Law – II

Court: Supreme Court of India — 7-Judge Bench

Held: The definitive test for "State" under Article 12: A body is State if, in the light of cumulative facts established, it is financially, functionally, and administratively dominated by or under the control of the Government. Such control must be particular to the body and pervasive. Merely regulatory control (whether statutory or otherwise) is not sufficient to make a body "State".

Principle: Cumulative test — pervasive governmental control (financial + functional + administrative) required; regulatory control alone insufficient.

Held: BCCI is NOT "State" under Article 12 because: (1) not created by statute; (2) no government share capital; (3) no substantial government financial assistance; (4) monopoly status not state-conferred; (5) no pervasive state control — only regulatory. However, since BCCI discharges some public duties, aggrieved persons have remedy under Article 226 (HC jurisdiction) or ordinary law — just not under Article 32.

Principle: BCCI is not State; private bodies performing public functions do not automatically become State — Article 226 (not 32) is available against them.

Held: A pre-constitutional law inconsistent with a fundamental right is not void but merely eclipsed — it is unenforceable for past and future transactions against citizens. If the fundamental right is subsequently amended to remove the inconsistency, the law is "de-eclipsed" and becomes operative again. The law remains on the statute book but in a dormant state.

Principle: Pre-constitutional laws inconsistent with FRs are eclipsed (not void); they revive if the FR is amended to remove the conflict.

Held: The Bombay Prohibition Act was partially void for violating Article 19(1)(f) (right to property — now deleted). The court severed the unconstitutional provisions and upheld the rest. The test for severability is: would the legislature have enacted the valid portion alone if it had known the rest was invalid? If yes, the valid portion is severed and upheld.

Principle: Severability test — the valid portion of a partially void law is saved if the legislature would have independently enacted it.

Held: Fundamental Rights cannot be waived. They are conferred not merely for the benefit of individuals but in the larger interest of the public. A citizen cannot, by a private agreement or consent, waive a fundamental right. Any agreement or settlement purporting to waive a fundamental right is void.

Principle: Fundamental rights are non-waivable — a citizen cannot contract out of or surrender fundamental rights by private agreement.

Court: Supreme Court of India — 5-Judge Constitutional Bench (3:2)

Facts: Shayara Bano was given instant triple talaq (talaq-e-biddat) by her husband. She challenged the practice as violating Articles 14, 15, 21, and 25.

Held (Majority — 3:2): Instant triple talaq (talaq-e-biddat) is manifestly arbitrary and violates Article 14. Practices that are manifestly arbitrary cannot be protected under Article 25 (religious freedom). Justice Kurian Joseph (concurring) held that triple talaq is un-Islamic and therefore not an "essential religious practice" under Article 25. The Muslim Personal Law (Shariat) Application Act, 1937 is "law" under Article 13 — personal laws codified in statutory form are subject to fundamental rights. The Muslim Women (Protection of Rights on Marriage) Act, 2019 subsequently criminalised triple talaq.

Principle: Manifestly arbitrary personal law practices violate Article 14; personal laws embodied in statute are "law" under Article 13 and subject to fundamental rights scrutiny.

Held: The West Bengal Special Courts Act (which set up special courts for speedy trial of certain offences) violated Article 14 because: (1) the classification of offences was arbitrary — the State had unfettered discretion to direct any case to the special court; (2) there was no intelligible differentia — the basis of classification was not specified. Article 14 forbids class legislation but does not forbid reasonable classification. An unrestricted or arbitrary power to classify is itself a violation of Article 14.

Principle: Reasonable classification must be based on intelligible differentia with rational nexus to the object; unfettered discretion to classify is unconstitutional.

Held: The Court recognised the concept of indirect discrimination under Article 14. A facially neutral law that has a disproportionate impact on a protected class (here, women army officers) may be indirectly discriminatory. Equality jurisprudence must move beyond formal equality (treating likes alike) to substantive equality (addressing structural disadvantage). The policy denying permanent commission to women short service officers on the ground of "non-availability of vacancies" was unconstitutional indirect discrimination.

Principle: Article 14 prohibits both direct and indirect discrimination — facially neutral policies with disproportionate impact on protected groups are unconstitutional.

Court: Supreme Court of India — 9-Judge Constitutional Bench

Facts: The Mandal Commission Report (1980) recommended 27% reservation for Other Backward Classes (OBCs) in central government services. The V.P. Singh government implemented it by Office Memorandum in 1990. This was challenged in what became the Mandal case.

Held (Key rulings — 6:3):

1. 50% ceiling: Total reservations (SC + ST + OBC) cannot exceed 50% as a general rule — to preserve the principle of equality; carry-forward rule for backlog vacancies is an exception
2. Creamy layer: The economically advanced sections of OBCs (the "creamy layer") must be excluded from OBC reservations — the benefit must reach the truly backward
3. No reservation in promotions: Article 16(4) applies only to initial appointment, not promotions (overruled by 77th Amendment inserting Article 16(4A))
4. Backward class determination: Caste can be the starting point for determining "backward class" but class cannot be determined on caste alone — social and educational backwardness is the test
5. Creamy layer applies to OBCs only, not SCs/STs
6. No reservation in certain posts: Certain posts requiring special merit/technical expertise should be exempted from reservation

Principle: 50% ceiling on reservations; creamy layer must be excluded from OBCs; backwardness is social/educational, not merely caste-based.

Court: Supreme Court of India — 5-Judge Constitutional Bench

Held: The 77th, 81st, 82nd, and 85th Constitutional Amendments (introducing Articles 16(4A), 16(4B), etc.) are valid and do not destroy the basic structure. However, for the State to make reservations in promotions for SCs/STs, it must satisfy a triple test:

1. The SC/ST community is backward
2. The SC/ST community is inadequately represented in the services
3. Reservation in promotions is in the overall administrative efficiency (Article 335)

Principle: Nagaraj triple test — backwardness + inadequate representation + administrative efficiency — must be satisfied before reservations in promotions for SCs/STs.

Held: Modified Nagaraj — the State need NOT collect quantifiable data to show "backwardness" of SCs/STs (since they are already classified as backward by the Constitution). However, the State must still collect quantifiable data on inadequate representation. Nagaraj's requirement of collecting data on backwardness of SCs/STs is overruled — their constitutional recognition as backward is sufficient.

Principle: Quantifiable data required for inadequacy of representation and efficiency, but NOT for backwardness of SCs/STs (which is constitutionally presumed).

Held: 5-Judge Bench — (1) The 102nd Constitutional Amendment (which inserted Articles 338B and 342A) transferred the power to identify socially and educationally backward classes (SEBCs) exclusively to the Central Government — States lost their power to identify OBCs for reservation after this Amendment. (2) The Maratha reservation (16% under SEBC Act) exceeded the 50% ceiling set in Indra Sawhney without exceptional circumstances — struck down. (3) Indra Sawhney reaffirmed — 50% ceiling is a constitutional mandate, not merely a guideline.

Principle: Post-102nd Amendment, only Centre can identify SEBCs for central jobs; 50% ceiling is binding; Maratha reservation struck down.

Held: Manual scavenging is a form of untouchability and slavery — a violation of Articles 17, 21, and 23. The Court directed the Government to implement the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, and issued specific directions for rehabilitation of manual scavengers, survey of railway tracks, and compensation for deaths in sewer cleaning.

Principle: Manual scavenging violates Articles 17, 21, and 23 — the State has an affirmative duty to eliminate this practice and rehabilitate affected persons.

Court: Supreme Court of India

Facts: Section 66A of the Information Technology Act, 2000 (punishment for sending "offensive" messages through computer resource) was challenged as unconstitutional.

Held: Section 66A struck down as unconstitutional — it violated Article 19(1)(a) (free speech) because: (1) it used vague and overbroad terms like "offensive", "menacing", "grossly offensive" without defining them; (2) it had no nexus with public order, incitement, or any of the grounds in Article 19(2); (3) it chilled free speech. The Court distinguished between discussion (protected), advocacy (protected), and incitement (can be restricted). Only laws restricting incitement to imminent lawless action can survive Article 19(2) scrutiny.

Principle: Section 66A IT Act struck down — vague laws that chill free speech are unconstitutional; distinction between discussion/advocacy (protected) and incitement (restrictable).

Court: Supreme Court of India

Facts: Internet services in Jammu & Kashmir were suspended indefinitely after the abrogation of Article 370 in August 2019. The editor of Kashmir Times challenged the internet shutdown.

Held: (1) Freedom of speech and expression and freedom to carry on trade/business through the internet is protected under Articles 19(1)(a) and 19(1)(g). (2) Internet shutdowns must be reviewed — they cannot be indefinite; proportionality must be observed. (3) The government must publish all suspension orders to enable legal challenge. (4) Suspension of internet must be for a necessary and proportionate period; blanket indefinite suspension is unconstitutional. (5) Doctrine of proportionality applies — the measure must be least restrictive to achieve the legitimate aim.

Principle: Internet access is protected under Articles 19(1)(a) and (g); internet shutdowns must be proportionate, necessary, time-limited, and subject to judicial review.

Held: Involuntary administration of narco-analysis, polygraph tests, and brain electrical oscillations profile (BEOP/brain mapping) on an accused violates Article 20(3) (right against self-incrimination) and Article 21 (right to personal liberty). The right against self-incrimination covers not just oral testimony but any compelled exhibition of mental faculties. These tests cannot be administered without the accused's consent.

Principle: Narco-analysis, polygraph, and brain mapping without consent violate Articles 20(3) and 21 — the right against self-incrimination covers compelled mental testimony.

Court: Supreme Court of India — 7-Judge Bench

Facts: Maneka Gandhi's passport was impounded under the Passports Act without giving her any reason or opportunity to be heard. She challenged it as violating Articles 14, 19, and 21.

Held: This landmark judgment transformed Article 21 jurisprudence:

1. Articles 14, 19, and 21 are not mutually exclusive — a law depriving life or liberty must satisfy all three articles; they form a "golden triangle"
2. "Procedure established by law" does not mean any procedure — it must be just, fair, and reasonable (rejecting the narrow Gopalan interpretation)
3. Natural justice — the right to be heard — must be read into any procedure that deprives a person of life or liberty
4. The word "law" in Article 21 must be read as embodying the rights in Part III
5. The right to travel abroad is part of personal liberty under Article 21

Principle: Articles 14, 19, and 21 form a golden triangle; procedure under Article 21 must be just, fair, and reasonable — not arbitrary; natural justice is part of Article 21.

Court: Supreme Court of India — 9-Judge Constitutional Bench

Facts: The Aadhaar project (biometric ID for all residents) was challenged. A preliminary question was whether privacy is a fundamental right. The earlier cases of M.P. Sharma (1954) and Kharak Singh (1963) had suggested privacy was not a fundamental right.

Held (Unanimously): Privacy is a fundamental right protected under Article 21 (and also under Articles 14 and 19). M.P. Sharma and Kharak Singh are overruled to the extent they denied privacy as a fundamental right. Privacy includes: (1) decisional autonomy; (2) informational privacy; (3) bodily integrity; (4) dignity. Privacy can be restricted only by a law which is: (a) authorised by law; (b) pursuing a legitimate State aim; (c) proportionate to the aim.

Principle: Privacy is a fundamental right under Article 21; restrictions on privacy must be authorised by law, pursue a legitimate aim, and be proportionate.

Court: Supreme Court of India — 5-Judge Constitutional Bench (Unanimous)

Facts: Section 377 of the Indian Penal Code (unnatural offences — which criminalised consensual same-sex relations) was challenged as violating Articles 14, 15, 19, and 21.

Held: Section 377 insofar as it criminalises consensual sexual relations between adults in private is unconstitutional. It violates: (1) Article 21 — right to dignity, privacy, autonomy; (2) Article 14 — arbitrary classification (no intelligible differentia between same-sex and different-sex consensual relations); (3) Article 15 — discrimination on ground of "sex" includes sexual orientation; (4) Article 19 — right to expression of identity. Suresh Kumar Koushal (2013), which had reversed the Delhi HC judgment, is overruled.

Principle: Consensual same-sex relations between adults are decriminalised; sexual orientation is protected under Articles 14, 15, 19, and 21; Section 377 to the extent it criminalised such conduct is void.

Held: The Supreme Court issued detailed guidelines for arrest and detention to prevent custodial torture and death. Key guidelines: (1) police officers must bear visible and clear identification; (2) arrest memo must be prepared at the time of arrest; (3) family/friend must be informed; (4) right to medical examination; (5) right to be informed of right to bail. Violation of these guidelines amounts to violation of Articles 21 and 22, and can give rise to compensation under Article 32.

Principle: Custodial torture and illegal detention violate Articles 21 and 22 — DK Basu guidelines are mandatory and their violation entitles the victim to compensation.

Held: Workers employed in construction works for the Asian Games in Delhi were being paid less than minimum wages. The Court held: (1) Payment below minimum wage amounts to "forced labour" under Article 23 — if wages are inadequate and the person has no choice, it is forced labour even without physical compulsion. (2) The right under Article 23 is enforceable against the State AND against private individuals and corporations. (3) The State has an obligation to ensure minimum wages are paid.

Principle: Forced labour includes payment below minimum wages — Article 23 is enforceable against State and private parties alike.

Held: The right to "propagate" religion under Article 25(1) does not include the right to convert others to one's religion. Propagation means sharing one's faith to persuade another to convert — but there is no right to forcible conversion. State anti-conversion laws are valid regulations under Article 25(2)(a).

Principle: Right to propagate religion does not include right to convert — state laws regulating forcible conversion are valid.

Court: Supreme Court of India — 5-Judge Constitutional Bench (4:1)

Facts: Women aged 10–50 (menstruating age) were excluded from entering the Sabarimala temple (dedicated to Lord Ayyappa) in Kerala — this exclusion was based on the deity's nature as a "Naisthik Brahmachari" (eternal celibate).

Held (4:1 Majority): The exclusion of women of menstruating age from Sabarimala is unconstitutional: (1) Violates Article 14 — discriminatory classification based on physiological characteristics of menstruation; (2) Violates Article 15(1) — discrimination on grounds of sex (physiological feature exclusive to women); (3) Violates Article 17 — treating menstruating women as impure is a form of untouchability; (4) Violates Article 25 — right of women to practice their religion by visiting the temple; (5) Exclusion is NOT an essential religious practice — the devotee comes to worship Lord Ayyappa, not to practise the exclusion of women; (6) Morality under Article 25(1) means constitutional morality, not popular morality.

Dissent (Justice Indu Malhotra): Courts should not interfere in matters of deep religious faith — whether a practice is "essential" should be determined by the religious community, not the court.

Principle: Constitutional morality prevails over popular morality; exclusion of women from temples on menstruation grounds violates Articles 14, 15, 17, and 25; the court determines essential religious practices.

Court: Supreme Court of India — 11-Judge Constitutional Bench

Held: (1) Minority (religious or linguistic) for Article 30 purposes is determined state-by-state — a group that is a minority in one State may be a majority in another. (2) Minority institutions have the right to admit students of their choice, but must maintain standards. (3) For aided minority institutions, the State can regulate to ensure efficiency, transparency, and against maladministration — but cannot interfere with management rights. (4) A minority institution that seeks and receives government aid must abide by service conditions prescribed by the State for its employees. (5) Both minority and non-minority private unaided institutions can charge a reasonable fee but cannot profiteer.

Principle: Minority status is state-specific; Article 30 right includes right of admission and management; aided minority institutions must comply with regulatory conditions.

Court: Supreme Court — 7-Judge Bench

Held: (1) The State cannot impose its reservation policy on private unaided non-minority or minority institutions for admission — such institutions have autonomy to set their own admission policy. (2) Common Entrance Tests can be made mandatory to ensure meritorious students are admitted. (3) The State can monitor admission procedure and fee structure to prevent maladministration and profiteering but cannot direct how seats are to be filled in private unaided institutions.

Principle: Private unaided institutions — minority and non-minority — are not subject to State reservation policies; States cannot appropriate seats in such institutions.

Held: While PIL has been an important tool for judicial activism and access to justice, it has been misused for private gain, political motivation, and publicity. The Court issued guidelines for PIL: (1) Courts should be cautious before entertaining PILs — verify credentials of petitioner; (2) PILs for personal gain, political motivation, or against political rivals should be rejected; (3) In frivolous PILs, courts should impose heavy costs; (4) PIL should not be used to score political points or target specific individuals. The Court reaffirmed the transformative role of PIL in genuine cases.

Principle: PIL is a valuable tool for the marginalised — but courts must guard against its misuse for private gain or political motivation; costs should be imposed on frivolous PILs.

Court: Supreme Court of India — 5-Judge Constitutional Bench

Held: Article 311(2)(b) (exception where inquiry is not reasonably practicable) and Article 311(2)(c) (security of State) were examined. The satisfaction of the competent authority must be genuine and not mala fide. The test is whether a reasonable person in the position of the disciplinary authority would think that holding a domestic inquiry was not reasonably practicable. Courts can review whether the authority genuinely formed such satisfaction or whether it was a pretext.

Principle: Exceptions to Article 311(2) must be genuinely satisfied; the competent authority's satisfaction must be real, not a pretext — subject to limited judicial review.

Held: The delinquent employee has the right to receive a copy of the Inquiry Officer's report before the disciplinary authority passes an order against him — this is a part of the reasonable opportunity to be heard under Article 311(2). Failure to supply the report vitiates the disciplinary proceedings.

Principle: Delinquent civil servant has a right to receive the Inquiry Officer's report as part of the opportunity of hearing under Article 311(2).

Held: Government employees have no fundamental right to strike. The right to strike, even if it exists, is not absolute and cannot be exercised at the cost of public welfare. The State government dismissed striking employees — the Court upheld the dismissal. Civil servants are in a special position — they have obligations to the public and cannot abandon their duties.

Principle: Government employees have no fundamental (or even legal) right to strike — service conditions and public interest prevail.