17. Polity Notes 10

Elaborate Notes

ARTICLE 13 OF THE INDIAN CONSTITUTION

Article 13 is a cornerstone of the Indian Constitution, acting as the primary guardian of the Fundamental Rights enshrined in Part III. It establishes the supremacy of the Constitution, particularly the Fundamental Rights, over all legislative and executive actions.

Clause 1 - Pre-Constitutional Laws: This clause declares that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void.
- Doctrine of Eclipse: This doctrine posits that a pre-constitutional law that violates a Fundamental Right is not nullified completely but is overshadowed or “eclipsed” by the Fundamental Right. It remains dormant and becomes operative again if the relevant Fundamental Right is amended to remove the inconsistency. A key case here is Bhikaji Narain Dhakras v. State of M.P. (1955), where the Supreme Court held that a law that was void under Article 13(1) could be revived.
Clause 2 - Post-Constitutional Laws: This clause prohibits the State from making any law which takes away or abridges the rights conferred by Part III. Any law made in contravention of this clause shall, to the extent of the contravention, be void.
- Doctrine of Severability: This principle, also known as the “doctrine of separability,” states that if a part of a statute is found to be unconstitutional, only that offending part should be declared void and not the entire statute, provided that the valid part can stand on its own and is not inextricably linked to the invalid part. The Supreme Court applied this in A.K. Gopalan v. State of Madras (1950).
Clause 3 - Definition of ‘Law’: This clause provides an inclusive definition of ‘law’ for the purposes of Article 13. It ensures that the protective shield of Fundamental Rights extends to a wide range of state actions. The term ‘law’ includes:
- Permanent Laws: Acts passed by the Parliament or State Legislatures.
- Temporary Laws: Ordinances issued by the President (under Article 123) or a Governor (under Article 213). These have the same force and effect as an Act of the legislature.
- Delegated Legislation (Statutory Instruments): This includes orders, bye-laws, rules, regulations, and notifications issued by the executive under the authority of a primary legislation. This prevents the executive from violating Fundamental Rights through subordinate legislation.
- Non-Legislative Sources of Law: This refers to custom or usage which has the force of law in the territory of India. This provision was a revolutionary step to challenge and invalidate oppressive social customs (e.g., those related to caste discrimination) that violated Fundamental Rights.
Judicial Review and Constitutional Amendments: A significant constitutional debate revolved around whether a ‘Constitutional Amendment’ under Article 368 qualifies as ‘law’ under Article 13(2).
- In Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), the Supreme Court held that a constitutional amendment is not ‘law’ within the meaning of Article 13 and thus cannot be challenged for violating Fundamental Rights.
- This position was reversed in I.C. Golaknath v. State of Punjab (1967), where the Court ruled that a constitutional amendment is ‘law’ and Parliament could not amend Fundamental Rights.
- To overcome this, Parliament enacted the 24th Amendment Act, 1971, which added Clause (4) to Article 13, explicitly stating that nothing in Article 13 shall apply to any amendment of the Constitution made under Article 368.
- The final position was established in the landmark case of Kesavananda Bharati v. State of Kerala (1973). The Court upheld the validity of the 24th Amendment but introduced the ‘Doctrine of Basic Structure’. It held that while Parliament has the power to amend any part of the Constitution, including Fundamental Rights, it cannot alter the ‘basic structure’ or framework of the Constitution. Judicial review itself was declared a part of the basic structure.

ARTICLE 14 OF THE INDIAN CONSTITUTION - RIGHT TO EQUALITY

Article 14 is the foundational principle of equality and non-arbitrariness. It states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Scope and Applicability:
- The right is guaranteed to all persons, not just citizens. This includes citizens, foreigners, and legal persons like corporations, companies, and registered societies.
- The article encompasses two distinct but related concepts: ‘Equality before the Law’ and ‘Equal Protection of the Laws’.
Equality Before the Law:
- Origin: This is a concept of British origin, associated with the constitutional scholar A.V. Dicey’s theory of the ‘Rule of Law’.
- Nature: It is a negative concept that implies:
  1. Absence of Special Privileges: No individual or group enjoys special privileges, and all are equally subject to the law.
  2. Equal Subjection to Ordinary Law: All persons, irrespective of their rank or status, are subject to the jurisdiction of ordinary courts.
  3. Supremacy of Law: No person is above the law.
- Dicey’s ‘Rule of Law’: Dicey, in his work The Law of the Constitution (1885), outlined three pillars of the Rule of Law:
  1. Absence of Arbitrary Power: No person can be punished except for a clear breach of law established in an ordinary legal manner before an ordinary court.
  2. Equality Before the Law: As explained above.
  3. Primacy of the Rights of Individuals: The Constitution is the result of the rights of individuals as defined and enforced by the courts, rather than the Constitution being the source of individual rights.
- Indian Context: India has adopted the first two principles of Dicey’s theory. However, the third principle is not applicable, as in India, the Constitution is the supreme source from which all rights, including Fundamental Rights, emanate.
Equal Protection of the Laws:
- Origin: This concept is borrowed from the 14th Amendment of the U.S. Constitution.
- Nature: It is a positive concept that requires the State to act affirmatively to ensure equality. It means:
  1. Equality of Treatment in Equal Circumstances: All persons in similar situations should be treated alike, both in terms of privileges conferred and liabilities imposed.
  2. Reasonable Classification: Since absolute equality is impossible, the state can treat different persons differently if the classification is reasonable. For a classification to be valid, it must satisfy two tests, as laid down in State of West Bengal v. Anwar Ali Sarkar (1952):
    - Intelligible Differentia: The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group.
    - Rational Nexus: The differentia must have a rational relation to the object sought to be achieved by the statute in question.
  - Example: A progressive tax system, where higher income groups are taxed at a higher rate, is a valid classification as it aims to achieve economic justice.
The New Doctrine of Equality: Anti-Arbitrariness:
- In E.P. Royappa v. State of Tamil Nadu (1974) and later affirmed in Maneka Gandhi v. Union of India (1978), Justice P.N. Bhagwati propounded a new, dynamic dimension to Article 14.
- The Supreme Court held that “Equality is antithetical to arbitrariness. Equality and arbitrariness are sworn enemies.” This means that any state action that is arbitrary, irrational, or unreasonable is inherently unequal and violates Article 14. This doctrine has significantly widened the scope of Article 14, making it a powerful tool against administrative and legislative arbitrariness.

EXCEPTIONS TO ARTICLE 14/ RULE OF LAW

The principle of equality is not absolute and is subject to certain constitutional and international law exceptions to ensure the smooth functioning of the state and diplomatic relations.

President and Governors (Article 361): They enjoy personal immunity from legal proceedings for the exercise and performance of the powers and duties of their office. No criminal proceedings can be instituted or continued against them during their term of office. No process for their arrest or imprisonment can be issued from any court.
Parliament and State Legislatures (Articles 105 & 194): Members of Parliament and State Legislatures are not liable to any proceedings in any court for anything said or any vote given by them in the legislature or its committees.
Publication of Proceedings (Article 361-A): No person shall be liable to any civil or criminal proceedings in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or a State Legislature.
Laws for Implementing certain DPSP (Article 31C): This article provides that a law made by the state for implementing Directive Principles contained in clause (b) or clause (c) of Article 39 cannot be challenged on the ground that it violates Article 14. The Supreme Court in the Kesavananda Bharati case (1973) held this provision to be valid.
Foreign Sovereigns and Diplomats: Under international law (e.g., the Vienna Convention on Diplomatic Relations, 1961), foreign sovereigns, ambassadors, and diplomats enjoy immunity from criminal and civil proceedings in the host country.
UNO and its Agencies: They also enjoy diplomatic immunity as per international conventions.

ARTICLE 15 OF THE INDIAN CONSTITUTION

Article 15 provides a specific application of the general principle of equality laid down in Article 14, focusing on prohibiting discrimination by the state and private individuals on specific grounds.

Article 15(1) - Prohibition against the State:
- “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
- Key terms:
  - Discrimination: Means to make an adverse distinction or to treat unfavourably.
  - Citizen: This right is available only to citizens of India, not to foreigners.
  - Only: The use of this word is crucial. It means that discrimination on grounds other than religion, race, caste, sex, or place of birth is not prohibited. For instance, the state can have special provisions based on residence for certain purposes, provided it is not the same as place of birth.
Article 15(2) - Prohibition against State and Private Individuals:
- “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.”
- Significance: This provision is unique as it is enforceable against both the state and private individuals. It was designed to directly combat social evils like untouchability and other forms of social segregation that were prevalent in India, thereby promoting social equality. It has horizontal application.

Prelims Pointers

Article 13: Provides for Judicial Review.
Judicial Review Power: Conferred on the Supreme Court under Article 32 and High Courts under Article 226.
Definition of ‘Law’ (Article 13(3)): Includes permanent laws, ordinances, delegated legislation (orders, bye-laws, rules), and customs having the force of law.
A constitutional amendment under Article 368 is not considered ‘law’ under Article 13, but it can be struck down if it violates the ‘Basic Structure’ of the Constitution.
Doctrine of Basic Structure: Propounded in the Kesavananda Bharati case (1973).
Article 14: Guarantees ‘Equality before Law’ and ‘Equal Protection of Laws’.
Applicability of Article 14: Applies to all ‘persons’ (citizens, foreigners, and legal persons like corporations).
Source of ‘Equality before Law’: British Constitution (from A.V. Dicey’s ‘Rule of Law’). It is a negative concept.
Source of ‘Equal Protection of Laws’: American Constitution (14th Amendment). It is a positive concept.
New Doctrine of Equality: Any action that is arbitrary is a violation of Article 14 (E.P. Royappa case, 1974).
Exceptions to Equality (Article 14):
1. President and Governors (Article 361).
2. Members of Parliament/State Legislatures (Articles 105/194).
3. Publication of true legislative reports (Article 361-A).
4. Laws implementing DPSP under Art 39(b) & (c) (Article 31C).
5. Foreign diplomats and UNO agencies.
Article 15: Prohibits discrimination on grounds only of religion, race, caste, sex, or place of birth.
Applicability of Article 15: Available only to citizens.
Article 15(2): Enforceable against both the State and private individuals regarding access to public places.

Mains Insights

Judicial Review: The Guardian of the Constitution
- Constitutional Supremacy vs. Parliamentary Sovereignty: The evolution of Article 13 reflects the classic tussle between the judiciary’s role as the interpreter of the Constitution and the Parliament’s power to legislate and amend. The ‘Basic Structure Doctrine’ is the judicial innovation that has created a fine balance, establishing constitutional supremacy while allowing Parliament ample room to amend the Constitution in response to changing societal needs.
- Instrument of Good Governance: Judicial review under Article 13 acts as a check on legislative and executive arbitrariness. It ensures that laws are just, fair, and reasonable, thus upholding the principles of good governance and the rule of law (GS Paper II). It prevents the tyranny of the majority and protects the rights of minorities.
- Debate: Judicial Activism vs. Restraint: While crucial, the power of judicial review has sometimes been criticized for encroaching into the legislative and executive domains (judicial overreach). The key is to maintain a balance, ensuring that the judiciary acts as a check without usurping the functions of other organs of the state.
Article 14: From Formal to Substantive Equality
- Evolution of Interpretation: The judicial interpretation of Article 14 has moved from a narrow, formal concept of ‘reasonable classification’ to a more robust, substantive concept of ‘anti-arbitrariness’. This shift, starting from the E.P. Royappa case, has made Article 14 a powerful tool to challenge any state action that is whimsical, capricious, or irrational.
- Foundation of Social Justice: Article 14, when read with the Preamble and Directive Principles, provides the philosophical basis for affirmative action and protective discrimination policies. The principle of ‘Equal Protection of Laws’ allows for differential treatment of unequals to bring them on par with the more privileged sections of society, which is the essence of social justice (GS Paper I & II).
- Rule of Law and Economic Development: The guarantee of equality before the law and the absence of arbitrariness are essential prerequisites for a stable and predictable legal environment. This fosters investor confidence, ensures sanctity of contracts, and promotes economic development (GS Paper III).
Article 15: A Tool for Social Transformation
- Dismantling Social Hierarchies: Article 15 directly attacks the historical injustices and social hierarchies based on caste, religion, and gender. Its horizontal application under Article 15(2) is particularly significant, as it aims to eradicate discriminatory practices not just by the state but within society itself, making it a powerful instrument for social reform (GS Paper I).
- Challenges in Implementation: Despite the constitutional mandate, social discrimination persists. The analysis of Article 15’s effectiveness must consider the ground realities of caste atrocities, gender-based violence, and communal tensions. Effective implementation requires not just legal enforcement but also social sensitization and political will.
- Expanding Dimensions: The interpretation of ‘sex’ in Article 15 is expanding to include gender identity and sexual orientation, as seen in the Supreme Court’s reasoning in cases like NALSA v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018). This reflects the Constitution’s dynamic and living nature.

Previous Year Questions

Prelims

Which one of the following is correct in respect of the “Rule of Law”? (UPSC CSE 2023) (a) It is a constitutional principle that limits the power of the government. (b) It is a legal principle that promotes equality before the law. (c) It is a political ideal that advocates for a government of laws, not of men. (d) All of the above are correct. Answer: (d) All of the above are correct. Explanation: The ‘Rule of Law’ is a multifaceted concept. It limits governmental power (ensuring no one is above the law), promotes equality before the law (a core tenet), and advocates for a system governed by established laws rather than the arbitrary will of individuals.
What is the position of the Right to Property in India? (UPSC CSE 2021) (a) Legal right available to citizens only (b) Legal right available to any person (c) Fundamental Right available to citizens only (d) Neither Fundamental Right nor legal right Answer: (b) Legal right available to any person. Explanation: The Right to Property was removed from the list of Fundamental Rights by the 44th Amendment Act, 1978. It was made a constitutional/legal right under Article 300-A. The word ‘person’ is used in Article 300-A, so it is available to any person, not just citizens.
With reference to India, consider the following statements: (UPSC CSE 2021)
1. Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
2. During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) 2 only. Explanation: Statement 1 is incorrect because in judicial custody, the accused is lodged in a central jail, not a police station lock-up. Statement 2 is correct; interrogation during judicial custody requires prior permission from the court. This relates to the principles of fair procedure under the rule of law.
A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (UPSC CSE 2021) (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 Answer: (a) Article 14. Explanation: The Supreme Court has held that any state action that is arbitrary is a violation of Article 14. Conferring unguided and uncontrolled discretionary power is a classic example of arbitrariness, as it goes against the principle of ‘Equality before the Law’ and the ‘Rule of Law’.
The Preamble to the Constitution of India is (UPSC CSE 2020) (a) a part of the Constitution but has no legal effect (b) not a part of the Constitution and has no legal effect either (c) a part of the Constitution and has the same legal effect as any other part (d) a part of the Constitution but has no legal effect, independently of other parts Answer: (d) a part of the Constitution but has no legal effect, independently of other parts. Explanation: In the Kesavananda Bharati case (1973), the Supreme Court held that the Preamble is a part of the Constitution. It is used to interpret ambiguous provisions of the Constitution but is not in itself a source of power or a limitation, and is not directly enforceable in a court of law.

Mains

“The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society.” Illustrate with special reference to the expanding horizons of the right to life and personal liberty. (UPSC CSE 2023, GS Paper II)
- Answer Framework:
  - Introduction: Explain the concept of the Constitution as a ‘living document’ and how judicial interpretation has been key to its dynamism.
  - Body Part 1: Evolution of Article 21: Trace the journey of Article 21 from the restrictive interpretation in A.K. Gopalan (procedure established by law) to the expansive interpretation in Maneka Gandhi (procedure must be just, fair, and reasonable).
  - Body Part 2: Expanding Horizons: Discuss how various unenumerated rights have been read into Article 21 by the judiciary. Provide examples:
    - Right to a clean environment (M.C. Mehta cases).
    - Right to privacy (K.S. Puttaswamy case, 2017).
    - Right to livelihood (Olga Tellis case, 1985).
    - Right to health, education, and speedy trial.
    - Right to die with dignity (passive euthanasia).
  - Conclusion: Conclude by reiterating how this judicial activism has kept the Constitution relevant for a progressive society, ensuring justice and liberty for its citizens.
Discuss the role of the Vice-President of India as the Chairman of the Rajya Sabha. (UPSC CSE 2022, GS Paper II) (While not directly on Art 13-15, this question tests understanding of constitutional posts and functions, some of which have immunities under the equality principle).
- Answer Framework:
  - Introduction: State the dual role of the Vice-President as per the Constitution (Article 63) and as the ex-officio Chairman of the Council of States (Article 64).
  - Body: Functions as Chairman of Rajya Sabha:
    - Presiding Officer: Regulates proceedings, maintains decorum, interprets rules of procedure.
    - Casting Vote: Can vote only in case of a tie (Article 100).
    - Guardian of Privileges: Protects the rights and privileges of the members and the House.
    - Administrative Head: Oversees the functioning of the Rajya Sabha Secretariat.
    - Role in Committees: Appoints chairpersons of various committees.
  - Analysis of the Role: Discuss the importance of the Chairman’s impartiality in conducting the business of the house, especially in a bicameral legislature where Rajya Sabha acts as a check on the Lok Sabha.
  - Conclusion: Summarize the significance of the Vice-President’s role in upholding the traditions of parliamentary democracy in India.
Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC CSE 2021, GS Paper II)
- Answer Framework:
  - Introduction: Define ‘Constitutional Morality’ not as public morality but as adherence to the core principles of the Constitution - liberty, equality, fraternity, and procedural fairness.
  - Body: Elaboration and Judicial Decisions:
    - Explain how it acts as a check on the exercise of power by the legislature and executive.
    - Navtej Singh Johar v. UoI (2018): The SC decriminalized homosexuality, holding that social morality cannot override the constitutional morality of equality and dignity (Articles 14, 15, 21).
    - Indian Young Lawyers Association v. State of Kerala (2018) (Sabarimala case): The Court upheld constitutional morality over religious customs that were discriminatory towards women, violating Article 14 and 15.
    - Government of NCT of Delhi v. Union of India (2018): The SC invoked constitutional morality to promote cooperative federalism and democratic governance.
  - Conclusion: Conclude that Constitutional Morality is a dynamic concept used by the judiciary to uphold the spirit of the Constitution against legislative and social pressures, ensuring the protection of fundamental rights.
Indian constitution exhibits centralising tendencies to maintain unity and integrity of the nation. Elucidate in the perspective of the Epidemic Diseases Act, 1897; The Disaster Management Act, 2005 and recently passed Farm Acts. (UPSC CSE 2021, GS Paper II) (This question relates to the balance of power, which is overseen by principles of rule of law and judicial review).
- Answer Framework:
  - Introduction: Briefly explain the federal structure of India with its inherent unitary bias, designed to maintain national unity.
  - Body: Centralising Tendencies through Acts:
    - Epidemic Diseases Act, 1897 & DM Act, 2005: Explain how these acts grant overriding powers to the Central government during health emergencies and disasters, allowing it to issue directions to states, thereby centralizing the response mechanism (e.g., during COVID-19 pandemic).
    - Farm Acts (now repealed): Argue how the three Farm Acts were seen as an encroachment on the State List (Entry 14 - Agriculture), showcasing the Centre’s legislative dominance even in areas constitutionally reserved for states. This raised questions of federalism and constitutional validity, which would be tested against judicial review.
  - Analysis: Link this centralizing tendency to constitutional provisions like Article 249, 250, 356, and the role of the judiciary as the arbiter in Centre-State disputes.
  - Conclusion: Conclude that while centralizing features are necessary for national integrity, a delicate balance must be maintained to preserve the federal character of the constitution, which is a part of its ‘basic structure’.
‘The judicial system in India and the UK seem to be converging as well as diverging in recent times.’ Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. (UPSC CSE 2020, GS Paper II)
- Answer Framework:
  - Introduction: Briefly introduce the common law heritage of both India and the UK, which forms the basis for convergence, but also highlight India’s written constitution as a key point of divergence.
  - Body Part 1: Convergence:
    - Common Law System: Both follow adversarial systems, rely on precedents (stare decisis), and have similar judicial hierarchies.
    - Judicial Independence: Both value and have institutional safeguards for judicial independence.
    - Human Rights: With the UK’s Human Rights Act 1998, UK courts can also review legislation for compatibility with the European Convention on Human Rights, similar to India’s judicial review of Fundamental Rights.
  - Body Part 2: Divergence:
    - Written vs. Unwritten Constitution: India has a written, supreme constitution. The UK has an unwritten one, based on statutes and conventions.
    - Parliamentary Sovereignty vs. Constitutional Supremacy: In the UK, Parliament is sovereign. In India, the Constitution is supreme.
    - Power of Judicial Review: The Indian judiciary has a much wider power of judicial review (can strike down laws as unconstitutional) compared to the UK, where courts can only declare a law incompatible with the HRA 1998 but cannot strike it down.
    - Basic Structure Doctrine: This is a unique feature of the Indian judiciary with no parallel in the UK.
  - Conclusion: Conclude that while both systems are evolving and learning from each other, fundamental differences rooted in their constitutional frameworks ensure they remain distinct.

GS Notes