Constitutional Law-II : Notes for B.B.A. LL.B fourth semester
Paper Code: 204
Unit-1: - Introduction:
a. Definition of ‘State’ for enforcement of fundamental rights – Justifiability of
fundamental rights
Doctrine of eclipse, severability, waiver.
b. Right to equality – Doctrine of Reasonable classification and the principle of absence
of arbitrariness
Legitimate Expectation
Principles of Compensatory Discrimination
c. Fundamental freedom: Freedom of speech and expression, freedom of press and
media– expansion by judicial interpretation – reasonable restrictions
Unit-2: - Fundamental Rights –II
a. Right to life and personal liberty – scope and content –
Expensive interpretation:
Gays’ rights
Right to Privacy
Live-in Relationships
b. Right to Education Act, 2009
c. Right against exploitation – Forced labour, child employment and human trafficking
d. Freedom of religion and Cultural and Educational Rights of Minorities
Professional Skill Development Activity (PSDA):
Drafting of a Writ Petition
Unit III- Right to Constitutional Remedies
a. Writs – Hebeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warranto
b. Art 32 and 226
c. Judicial Review
d. Writ Jurisdiction and Private sector
,Unit – IV- Directive Principles and Fundamental Duties
a. Nature and justiciability of the Directive Principles
b. Detailed Analysis of Directive Principles
c. Fundamental Duties
e. Inter-relationship between Fundamental Rights and Directive Principles –
Fundamental Duties
Unit-I
Fundamental Rights-Part 1:
State- Article 12:
The Constitution of India, Article 12: “In this part, unless the context otherwise
requires, “the State” includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India.”
Tests to decide which “other authorities” could be considered as agencies or
instrumentalities of state. The cumulative effect of all the following factors has to be
seen:
1. “If the entire share capital of the corporation is held by government, it would go a
long way towards indicating that the corporation is an instrumentality or agency of
government.”
2. The existence of “deep and pervasive State control may afford an indication that
the Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys monopoly status
which is State conferred or State protected.”
4. “If the functions of the corporation are of public importance and closely related to
governmental functions, it would be a relevant factor in classifying the corporation as
an instrumentality or agency of government.”
5. “Specifically, if a department of government is transferred to a corporation, it
would be a strong factor supportive of this inference” of the corporation being an
instrumentality or agency of government.
SomPrakashRekhi v. Union of India AIR 1981 SC 212: (1981) 1 SCC 449 Page 3 of
72 The petitioner was a clerk in the Burmah Shell Oil Storage Ltd. He retired at the
age of 50 after qualifying for a pension, on April 1, 1973. He was also covered by a
scheme under the Employees’ Provident Funds and Family Pension Fund Act, 1952.
The employer undertaking was statutorily taken over by the Bharat Petroleum
Corporation Ltd. under the Burmah Shell (Acquisition of Undertakings in India) Act,
1976, and the Corporation became the statutory successor of the petitioner employer.
His pensionary rights, such as he had, therefore, became claimable from the second
,respondent. The pensionary provision for the Burmah Shell employees depended on
the terms of a Trust Deed of 1950 under which a Pension Fund was set up and
regulations were made for its administration.
By virtue of Regulation 13, the petitioner was entitled to a pension of Rs. 165.99
subject to certain deductions that formed the controversy in this case. He was also
being paid Supplementary Retirement Benefit of Rs. 86/- per month for a period of 13
months after his Retirement, which was stopped thereafter. By a letter dated
September 25, 1974, the employer (Burmah Shell) explained that from out of the
pension of Rs. 165.99 Regulation 16 authorized two deductions. One such deduction
was based on Regulation 16(1) because of Employees’ Provident Fund payment to the
pensioner and the other rested on Regulation 16(3) on account of payment of gratuity.
Resultantly, the ‘pension payable’ was shown as Rs 40.05. Further, the petitioner
claimed and received his provident fund amount under the PF Act and recovered a
gratuity amount due under the Payment of Gratuity Act, 1972. The Burmah Shell that
consequent on his drawal of provident fund intimated the petitioner and gratuity
benefits; the quantum of his pension would suffer a protanto shrinkage, leaving a
monthly pension of Rs 40/-. Since no superannuated soul can survive on Rs. 40/- per
month, the petitioner moved the court challenging the deductions from his original
pension as illegal and inhuman and demanding restoration of the full sum, which he
was originally drawing.
According to the petitioner, his right to property under Article 19 had been violated.
The first issue before the Supreme Court was whether a writ could be issued under
Article 32 of the Constitution against the BPCL, a government company.
The expression “other authorities” in Article 12 has been held by this Court in the
Rajasthan State Electricity Board case [Rajasthan Electricity Board v. Mohan Lal,
AIR 1967 SC 1857] to be wide enough to include within it every authority created by
a statute and functioning within Page 4 of 72 the territory of India, or under the
control of the Government of India. This Court further said referring to earlier
decisions that the expression “other authorities” in Article 12 will include all
constitutional or statutory authorities on whom powers are conferred by law. The
State itself is envisaged under Article 298 as having the right to carry on trade and
business. The State as defined in Article 12 is comprehended to include bodies
created for the purpose of promoting economic interests of the people. The
circumstance that the statutory body is required to carry on some activities of the
nature of trade or commerce does not indicate that the Board must be excluded from
the scope of the word ‘State’. The Electricity Supply Act showed that the Board had
power to give directions, the disobedience of which is punishable as a criminal
offence. The power to issue directions and to enforce compliance is an important
aspect, Mathew, J. is more positive in his conception of ‘State’ under Article 12:
The concept of State has undergone drastic changes in recent years. Today State
cannot be conceived of simply as coercive machinery wielding the thunderbolt of
authority. It has to be viewed mainly as a service corporation:
If we clearly grasp the character of the state as a social agent, understanding it
rationally as a form of service and not mystically as an ultimate power, we shall differ
only in respect of the limits of its ability to render service. A state is an abstract entity.
, It can only act through the instrumentality or agency of natural or judicial persons.
Therefore, there is nothing strange in the notion of the State acting through a
corporation and making it an agency or instrumentality of the State
The tasks of government multiplied with the advent of the welfare State and
consequently, the framework of civil service administration became increasingly
insufficient for handling the new tasks which were often of a specialized and highly
technical character. At the same time, ‘bureaucracy’ came under a cloud. The distrust
of government by civil service, justified or not, was a powerful factor in the
development of a policy of public administration through separate corporations which
would operate largely according to business principles and be separately accountable.
The Rajasthan Electricity Board case (the majority judgment of Bhargava, J.) is
perfectly compatible with the view we take of Article 12 or has been expressed in
Sukhdev and Page 5 of 72 the Airport Authority. The short question that fell for
decision was as to whether the Electricity Board was ‘State’. There was no debate, no
discussion and no decision on the issue of excluding from the area of State under
Article 12, units incorporated under a statute as against those created by a statute. On
the other hand, the controversy was over the exclusion from the definition of State in
Article 12 corporations engaged in commercial activities. This plea for a narrow
meaning was negative by Bhargava, J. and in that context the learned Judge explained
the signification of “other authorities” in Article 12
The meaning of the word “authority” given in WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY, which can be applicable, is “a public
administrative agency or corporation having quasi-governmental powers authorized to
administer a revenue-producing public enterprise”. This dictionary meaning of the
word “authority” is clearly wide enough to include all bodies created by a statute on
which powers are conferred to carry out governmental or quasi-governmental
functions. The expression “other authorities” is wide enough to 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; and we do not see any reason to narrow down
this meaning in the context in which the words “other authorities” are used in Article
12 of the Constitution
These decisions of the court support our view that the expression “other authorities”
in Article 12 will include all constitutional or statutory authorities on whom powers
conferred may be for the purpose of carrying on commercial activities. Under the
Constitution, the State is itself envisaged as having the right to carry on trade or
business as mentioned in Article 19(1)(g). In Part IV, the State has been given the
same meaning as in Article 12 and one of the directive principles laid down in Article
46 is that the State shall promote with special care the educational and economic
interests of the weaker sections of the people. The State, as defined in Article 12, is
thus comprehended to include bodies created for the purpose of promoting the
educational and economic interests of the people. The State, as constituted by our
Constitution, is further specifically empowered under Article 298 to carry on any
trade or business. The circumstance that the Board under the Electricity Supply Act, is
required to carry on some activities of the nature of trade or commerce does not,
therefore, give any indication that the Board must be excluded from the scope of the
word “State” as used in Article 12.
Paper Code: 204
Unit-1: - Introduction:
a. Definition of ‘State’ for enforcement of fundamental rights – Justifiability of
fundamental rights
Doctrine of eclipse, severability, waiver.
b. Right to equality – Doctrine of Reasonable classification and the principle of absence
of arbitrariness
Legitimate Expectation
Principles of Compensatory Discrimination
c. Fundamental freedom: Freedom of speech and expression, freedom of press and
media– expansion by judicial interpretation – reasonable restrictions
Unit-2: - Fundamental Rights –II
a. Right to life and personal liberty – scope and content –
Expensive interpretation:
Gays’ rights
Right to Privacy
Live-in Relationships
b. Right to Education Act, 2009
c. Right against exploitation – Forced labour, child employment and human trafficking
d. Freedom of religion and Cultural and Educational Rights of Minorities
Professional Skill Development Activity (PSDA):
Drafting of a Writ Petition
Unit III- Right to Constitutional Remedies
a. Writs – Hebeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warranto
b. Art 32 and 226
c. Judicial Review
d. Writ Jurisdiction and Private sector
,Unit – IV- Directive Principles and Fundamental Duties
a. Nature and justiciability of the Directive Principles
b. Detailed Analysis of Directive Principles
c. Fundamental Duties
e. Inter-relationship between Fundamental Rights and Directive Principles –
Fundamental Duties
Unit-I
Fundamental Rights-Part 1:
State- Article 12:
The Constitution of India, Article 12: “In this part, unless the context otherwise
requires, “the State” includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India.”
Tests to decide which “other authorities” could be considered as agencies or
instrumentalities of state. The cumulative effect of all the following factors has to be
seen:
1. “If the entire share capital of the corporation is held by government, it would go a
long way towards indicating that the corporation is an instrumentality or agency of
government.”
2. The existence of “deep and pervasive State control may afford an indication that
the Corporation is a State agency or instrumentality.”
3. “It may also be a relevant factor…whether the corporation enjoys monopoly status
which is State conferred or State protected.”
4. “If the functions of the corporation are of public importance and closely related to
governmental functions, it would be a relevant factor in classifying the corporation as
an instrumentality or agency of government.”
5. “Specifically, if a department of government is transferred to a corporation, it
would be a strong factor supportive of this inference” of the corporation being an
instrumentality or agency of government.
SomPrakashRekhi v. Union of India AIR 1981 SC 212: (1981) 1 SCC 449 Page 3 of
72 The petitioner was a clerk in the Burmah Shell Oil Storage Ltd. He retired at the
age of 50 after qualifying for a pension, on April 1, 1973. He was also covered by a
scheme under the Employees’ Provident Funds and Family Pension Fund Act, 1952.
The employer undertaking was statutorily taken over by the Bharat Petroleum
Corporation Ltd. under the Burmah Shell (Acquisition of Undertakings in India) Act,
1976, and the Corporation became the statutory successor of the petitioner employer.
His pensionary rights, such as he had, therefore, became claimable from the second
,respondent. The pensionary provision for the Burmah Shell employees depended on
the terms of a Trust Deed of 1950 under which a Pension Fund was set up and
regulations were made for its administration.
By virtue of Regulation 13, the petitioner was entitled to a pension of Rs. 165.99
subject to certain deductions that formed the controversy in this case. He was also
being paid Supplementary Retirement Benefit of Rs. 86/- per month for a period of 13
months after his Retirement, which was stopped thereafter. By a letter dated
September 25, 1974, the employer (Burmah Shell) explained that from out of the
pension of Rs. 165.99 Regulation 16 authorized two deductions. One such deduction
was based on Regulation 16(1) because of Employees’ Provident Fund payment to the
pensioner and the other rested on Regulation 16(3) on account of payment of gratuity.
Resultantly, the ‘pension payable’ was shown as Rs 40.05. Further, the petitioner
claimed and received his provident fund amount under the PF Act and recovered a
gratuity amount due under the Payment of Gratuity Act, 1972. The Burmah Shell that
consequent on his drawal of provident fund intimated the petitioner and gratuity
benefits; the quantum of his pension would suffer a protanto shrinkage, leaving a
monthly pension of Rs 40/-. Since no superannuated soul can survive on Rs. 40/- per
month, the petitioner moved the court challenging the deductions from his original
pension as illegal and inhuman and demanding restoration of the full sum, which he
was originally drawing.
According to the petitioner, his right to property under Article 19 had been violated.
The first issue before the Supreme Court was whether a writ could be issued under
Article 32 of the Constitution against the BPCL, a government company.
The expression “other authorities” in Article 12 has been held by this Court in the
Rajasthan State Electricity Board case [Rajasthan Electricity Board v. Mohan Lal,
AIR 1967 SC 1857] to be wide enough to include within it every authority created by
a statute and functioning within Page 4 of 72 the territory of India, or under the
control of the Government of India. This Court further said referring to earlier
decisions that the expression “other authorities” in Article 12 will include all
constitutional or statutory authorities on whom powers are conferred by law. The
State itself is envisaged under Article 298 as having the right to carry on trade and
business. The State as defined in Article 12 is comprehended to include bodies
created for the purpose of promoting economic interests of the people. The
circumstance that the statutory body is required to carry on some activities of the
nature of trade or commerce does not indicate that the Board must be excluded from
the scope of the word ‘State’. The Electricity Supply Act showed that the Board had
power to give directions, the disobedience of which is punishable as a criminal
offence. The power to issue directions and to enforce compliance is an important
aspect, Mathew, J. is more positive in his conception of ‘State’ under Article 12:
The concept of State has undergone drastic changes in recent years. Today State
cannot be conceived of simply as coercive machinery wielding the thunderbolt of
authority. It has to be viewed mainly as a service corporation:
If we clearly grasp the character of the state as a social agent, understanding it
rationally as a form of service and not mystically as an ultimate power, we shall differ
only in respect of the limits of its ability to render service. A state is an abstract entity.
, It can only act through the instrumentality or agency of natural or judicial persons.
Therefore, there is nothing strange in the notion of the State acting through a
corporation and making it an agency or instrumentality of the State
The tasks of government multiplied with the advent of the welfare State and
consequently, the framework of civil service administration became increasingly
insufficient for handling the new tasks which were often of a specialized and highly
technical character. At the same time, ‘bureaucracy’ came under a cloud. The distrust
of government by civil service, justified or not, was a powerful factor in the
development of a policy of public administration through separate corporations which
would operate largely according to business principles and be separately accountable.
The Rajasthan Electricity Board case (the majority judgment of Bhargava, J.) is
perfectly compatible with the view we take of Article 12 or has been expressed in
Sukhdev and Page 5 of 72 the Airport Authority. The short question that fell for
decision was as to whether the Electricity Board was ‘State’. There was no debate, no
discussion and no decision on the issue of excluding from the area of State under
Article 12, units incorporated under a statute as against those created by a statute. On
the other hand, the controversy was over the exclusion from the definition of State in
Article 12 corporations engaged in commercial activities. This plea for a narrow
meaning was negative by Bhargava, J. and in that context the learned Judge explained
the signification of “other authorities” in Article 12
The meaning of the word “authority” given in WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY, which can be applicable, is “a public
administrative agency or corporation having quasi-governmental powers authorized to
administer a revenue-producing public enterprise”. This dictionary meaning of the
word “authority” is clearly wide enough to include all bodies created by a statute on
which powers are conferred to carry out governmental or quasi-governmental
functions. The expression “other authorities” is wide enough to 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; and we do not see any reason to narrow down
this meaning in the context in which the words “other authorities” are used in Article
12 of the Constitution
These decisions of the court support our view that the expression “other authorities”
in Article 12 will include all constitutional or statutory authorities on whom powers
conferred may be for the purpose of carrying on commercial activities. Under the
Constitution, the State is itself envisaged as having the right to carry on trade or
business as mentioned in Article 19(1)(g). In Part IV, the State has been given the
same meaning as in Article 12 and one of the directive principles laid down in Article
46 is that the State shall promote with special care the educational and economic
interests of the weaker sections of the people. The State, as defined in Article 12, is
thus comprehended to include bodies created for the purpose of promoting the
educational and economic interests of the people. The State, as constituted by our
Constitution, is further specifically empowered under Article 298 to carry on any
trade or business. The circumstance that the Board under the Electricity Supply Act, is
required to carry on some activities of the nature of trade or commerce does not,
therefore, give any indication that the Board must be excluded from the scope of the
word “State” as used in Article 12.
