IIMA - Course Catalogue
Businesses and the Constitutional Rights
Prof. Akhileshwar Pathak
Course Description & Objectives
Like all modern constitutions, the Constitution of India guarantees several basic rights to the subjects against the power of the state. These rights are in the chapter on the Fundamental Rights in the Constitution. These basic rights are truly fundamental and govern all aspects of our economic, social and political life. These are the foundations on which the republic rests, the architecture on which the nation would grow, and the everyday lived experiences of the society.
It is no surprise that businesses and the fundamental rights are completely enmeshed. The interface between businesses and the rights can take four forms. One, it can be functional and specific. For example, a company which has lost out a government contract can challenge the award of the contract. Two, it can be sectoral and affect an industry. For example, restrictions on putting telecommunications towers, and its constitutional challenge, impacts the telecom companies. Three, the interface can be overarching and foundational, affecting all businesses. For example, constitutional validity of a business law or taxation law can impact all businesses. Four, the interface can be a window to the future. An example of this is the right to privacy of individual electronic data. Due to these interconnections, businesses have been major claimants of the rights before the courts, propelling the development of these rights. The rights are so basic and foundational that one must have a good grasp of their scope and functioning. It is not easy to learnt this field of law through self-study. It needs a structured introduction and guided navigation. The proposed course is to this end.
Exploring the Constitutional Rights:
Constitutions are founding documents. For this reason, these express the rights in basic terms and generalities. The Constitution of India expresses the rights in words like, equality, freedom, life, speech and business. There is nothing technical or legal about these words. Why then do the judicial pronouncements on the constitutional rights seem opaque and inaccessible? The reason is, the judges, with changing times, capture the sensibilities of the society differently and give a changed expression to the terms. At the same time, the judges are bound by the prior judgements. Thus, there is always a tension in following the prior judgements and yet breaking away from them. This is secured by presenting to be following the prior judgements and yet, bringing about changes.
The second aspect is that the Fundamental Rights are not absolute rights. The state can impose, generally speaking, reasonable restrictions on the rights for the larger social good. The courts assess the balancing and decide whether the scale has tilted making the law excessive and violative of the rights. This exercise of balancing varies from case to case and overtime.
Thus, while the constitutional rights are cast in generalities, a general common sense meaning of these terms would be inadequate and at variance with the judicial view. The meaning of a term and the associated right has accumulated since the inception of the constitution, by a chain of court judgements. The development of the meaning of the terms over the decades is not linear and cumulative. The meaning is contested and has ruptures.
The development of the rights can be seen in four phases. The first phase is from the start of the Constitution to 1977. In this period, the Supreme Court, as the constitution was new, gave a somewhat literal interpretation of the terms. Second phase is post Emergency, 1978- 95. The imposition of Emergency shook the Supreme Court. In this period, the court vastly expanded the scope of the Fundamental Rights. The third phase is 1995-2010. In this period, the judgements accommodated liberalisation and globalisation of the economy. The fourth phase is current ongoing.
The objective of the course is to explore the scope and working of the Fundamental Rights of the Constitution which relate to and affect businesses. This includes the following articles of the Constitution:
1. Article 12: Definition of ‘state’
2. Article 14: Right to equality
3. Article 19: Right to freedom of speech and expression; association; and business, trade and profession
4. Article 21: Right to life and privacy
The course will use case discussion, class exercise and group presentations.
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