Infrastructure Law

Constitutional aspect of Infrastructural Development in India

National University of Study and Research on Law

SUBMITTED BY: SUBMITTED TO:

PIYUSH RANJAN MR. MAINAN RAY

SEMESTER- X “A” FACULTY IN-CHARGE
ROLL NO -637 NUSRL

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 Introduction

Infrastructure is the fundamental facilities and system serving a country, city, or other area
including the services and facilities necessary for its economy to function. Infrastructure literally
means public and physical improvements such as roads, bridge, tunnels, water supply, sewers,
electrical grids, and telecommunication. For any state, Infrastructure is very important aspect in
regard to calculating its development standard. For any government, it is also their prime concern,
when any government is competent to develop infrastructure, it is supposed that government is
functional. The word infrastructure has been used in English since 1887 and in French since 1875,
originally meaning "The installations that form the basis for any operation or system". The word
was imported from French, where it means subgrade, the native material underneath a constructed
pavement or railway 1. The word is a combination of the Latin prefix "infra", meaning "below" and
many of these constructions are underground, for example, tunnels, water and gas systems,
and railways. Constitution of India, also provides for development of infrastructure, meaning
thereby the government which is in responsibility to develop the infrastructure. Under seventh
schedule of Indian constitution, distribution of legislative power is defined, where it is
categorically described the area on which the different government is empowered to legislate on
mentioned subject matter. In other words, infrastructure is developing on different level like on
central level, state level, municipal level and panchayat level. There are various infrastructure
development plans are introduced or implemented every year. It is well established fact that,
infrastructure is one of the important components which can give a state as status of developed
state.

In lieu of the revenue which is generated by the general taxpayer of the country, the government
is responsible, to develop infrastructure in the country, and on the other hand public or citizens are
also under the obligation to maintain or preserve the well-developed infrastructure of the country.

As we know every citizen have fundamental right to life and personal liberty 2, and it is also well
established that the life doesn’t means a mere animal existence it include the life with human

1
Online Etymology Dictionary. Douglas Harper, Historian. http://dictionary.reference.com/browse/infrastructure
(last accessed on 03/04/2019)
2
Constitution of India, art. 21

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dignity 3, and it is only possible when there is minimum or basic infrastructural development with
bare necessities of life such as adequate nutrition, Clothing, and Shelter over the head and facilities
for Reading etc. 4

Meaning of Infrastructure

There is no standard definition of infrastructure across economic studies. Tinbergen (1962)

introduces the distinction between infrastructure (for example, roads and education) and
superstructure (manufacturing, agricultural and mining activities) without neither a precise
definition nor any theoretic references of these terms. The reason for this unsatisfactory situation
comes from the need for simultaneous realization of three analytic objectives: (i) the formulation
of a concept for the term "infrastructure"; (ii) the incorporation of theoretic approaches (for
example, the theory of public goods), and (iii) the description of the reality of infrastructure
provision. Therefore, in the absence of a standard (precise) definition, various authors model a
variety of different indicators of infrastructure and this fact, in turn, makes challenging any
comparison involving different studies.

As per Oxford dictionary, the basic physical and organizational structures and facilities (e.g.
buildings, roads, and power supplies) needed for the operation of a society or enterprise.

‘The social and economic infrastructure of a country’.

Types of Infrastructure

Infrastructure can be put into several different types including 5:

Soft infrastructure: These types of infrastructure make up institutions that help maintain the
economy. These usually require human capital and help deliver certain services to the

3
Maneka Gandhi vs. Union of India;1978 AIR 597; 1978 SCR (2) 621.
4
Francis Coralie vs. Union Territory of Delhi; 1981 AIR 746; 1981 SCR (2) 516.
5
https://www.investopedia.com/terms/i/infrastructure.asp (last accessed on 08/04/2019)

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population. Examples include the healthcare system, financial institutions, governmental systems,
and law enforcement and education systems.

Hard Infrastructure: These make up the physical systems that make it necessary to run a modern,
industrialized nation. Examples include roads, highways, bridges, as well as the capital/assets
needed to make them operational (transit buses, vehicles, oil rigs/refineries).

Critical Infrastructure: These are assets defined by a government as being essential to the
functioning of a society and economy, such as facilities for shelter and heating,
telecommunication, public health, agriculture, etc. In the United States, there are agencies
responsible for these critical infrastructures, such as Homeland Security (for the government and
emergency services), the Department of Energy and the Department of Transportation.

How to measure infrastructure?

Preliminarily, note that the goal of the measurement of infrastructure is essentially twofold. First,
one could be interested in calculating a measure of infrastructure that aims to quantify the existing
infrastructure in order to insert it into the national statistical system with respect to two sources of
the Italian national statistical system). Second, one could be interested in obtaining a measure of
infrastructure with the purpose to analyses its effects in terms of competitiveness and development
of a territory 6. Certainly, each category of infrastructure introduced in section 3 presents peculiar
difficulties related to both purposes.

For example, the measurement of institutional infrastructure goes deeply in the character of civic
life - involving political stability, quality of government, and, social infrastructure so that its exact
“measurement” is rather ambitious. Another significant example is constituted by human capital
representing crucial factors in endogenous growth models and widely used despite difficulties
regarding its measurement. At this regard it is worth noting just to give the idea that while Easterly
and Rebelo (1993) included “two school enrolment variables as proxies for the initial level of

6
Brancalente, Di Palma et al 2006, cited from Gianpiero Torrisi, public infrastructure: definition, classification and
measurement issues, Munich personal RePEc Archive.

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human capital” 7,with the same purpose, use a 1996-2002 average of public spending on various
categories; namely: education, training, research and development, pension and wage
supplementation, and labour.

Process of Infrastructural Development

Once standards are adopted and made mandatory, the next step in reducing risk is ensuring their
compliance. When developing new infrastructure, there are four broad stages to comply with.

i. Planning: This involves submission of project application to relevant the authority. The
application includes details of who will perform the work and how, plans for construction
and land use etc., as prescribed by the authority 8.
ii. Design: This involves a review to check that all codes and other relevant requirements are
met. This is the first compliance check (at the design stage), and also cover regular on-site
inspections. It can be done by the authority itself or by an accredited third party. Once the
review proves satisfactory, the authority approves the application and issues the permit,
usually with a fee reflective of the costs associated with the time spent in the review
process.
iii. Construction: Inspections by external engineers (either those within the authority or those
appointed by the authority) are critical at each major stage of construction. The number of
inspections required varies by project. A final certificate of compliance can be issued
following a successful final inspection, to certify compliance of construction to all relevant
codes.
iv. Installation and commissioning: This involve installing safety features as per municipal
requirement, such as those to provide for fire; lift; and power safety. Only once these are
met should the infrastructure be commissioned for use.

7
Easterly and Rebelo, 1993, p. 424, The National Bureau of Economic Research available at
https://www.nber.org/papers/w4499
8
Global Facility for Disaster Reduction and Recovery (GFDRR), Annual Report 2016 available at
https://www.gfdrr.org/en/publication/global-facility-disaster-reduction-and-recovery-annual-report-2016

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In India, these steps in the process of construction are clearly defined, in detail, for building large
economic infrastructure. For example, The National Highways Authority of India. Works Manual
gives a well-developed and competitive bidding process for submission of application. Project
preparation and approval processes are also defined, as are the processes for land acquisition and
acquiring environmental and forest clearances.

These key steps are often also detailed by various state and municipal authorities. For example,
The Municipal Corporation Jalandhar Building Bye- Laws, 2010 detail these steps, whereas for
large scale projects in metropolitan cities such as Mumbai, Chennai, Kolkata and Delhi, many
clearances are required in addition to those mandated by relevant bye-laws. These additional
clearances are classified along the same steps. 9 While the process for construction in India is
clearly defined and in line with well-established norms, compliance during implementation may
depend on the capacity of the local governing.

Infrastructural Development and Fundamental Rights

If we try to relate the infrastructural development with fundamental right, first article which come
in light is article 21 of the constitution of India which reads as, no person shall be deprived of his
life and personal liberty except procedure established by law. If we refer to the Meneka Gandhi
and Fransic Coralie case, Supreme Court well observed that the word life does not means the mere
animal existence of human being is not the meaning of the word ‘life’. The word life includes the
life with human dignity.

Human dignity is the recognition that human beings possess a special value intrinsic to their
humanity and as such are worthy of respect simply because they are human beings. 10 We can say
that life in a dignified way is only possible when there is well developed and maintained
infrastructure in the country. If there is no means state have, then it not possible to imagine the
development. Article 21 have wider ambit to cover various aspects of infrastructural development.
Apart from article 21, Article 21 (A) which guarantees the rights of education.

9
Central Public Works Department, Ministry of Urban Development, 2013 available at https://www.cpwd.gov.in/
10
https://cbhd.org/category/issues/human-dignity

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In the case of Mohini Jain v. Union of India 11, In this case, a resident of Uttar Pradesh state
challenged a notification issued by the Karnataka government that permitted private medical
colleges to charge higher fees to students who were not allocated 'government seats'. The Supreme
Court of India held that the charging of a ‘capitation fee’ by the private educational institutions
violated the right to education, as implied from the right to life and human dignity, and the right
to equal protection of the law. In the absence of an express constitutional right, the Court
interpreted a right to education as a necessary condition for fulfillment of the right to life under
Article 21 of the Indian Constitution. In addition, the Court held that private institutions, acting as
agents of the State, have a duty to ensure equal access to, and non-discrimination the delivery of,
higher education.

Further in the case of in the case of Unni Krishnan. J.P and Others. v. State of Andhra Pradesh and
others. 12 The Supreme Court held that the right to basic education is implied by the fundamental
right to life 13 when read in conjunction with the directive principle on education 14. The Court held
that the parameters of the right must be understood in the context of the Directive Principles of
State Policy, including Article 45 which provides that the state is to endeavor to provide, within a
period of ten years from the commencement of the Constitution, for free and compulsory education
for all children under the age of 14. The Court ruled that there is no fundamental right to education
for a professional degree that flows from Article 21. It held, however, that the passage of 44 years
since the enactment of the Constitution had effectively converted the non-justifiable right to
education of children under 14 into one enforceable under the law. After reaching the age of
fourteen, their right to education is subject to the limits of economic capacity and development of
the state.

Quoting Article 13 of the International Covenant on Economic, Social and Cultural Rights, the
Court stated that the state's obligation to provide higher education requires it to take steps to the

11
1992 AIR 1858, 1992 SCR (3) 658.
12
1993 SCR (1) 594; 1993 SCC (1)
13
Constitution of India; art.21
14
Constitution of India; art.41

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maximum of its available resources with a view to achieving progressively the full realization of
the right of education by all appropriate means.

After going through these articles of the constitution, it is clear that state is under obligation to
provide some basic requirements of the life like food, shelter etc. If we again examine the aspect
of article 21-A then it is clear that, again state is under obligation to provide elementary education,
basic education to the children of aged 14 years.

Legal frameworks for development under constitution of India

The Constitution of India details the distribution of legislative powers between the Centre and the
States. 15 While the Parliament of India has exclusive power to make laws on some items (such as
national highways), the legislature of any state can make laws on others (such as water supply). 16
Further, the legislature of a state has power to constitute municipalities and panchayats and may
by law endow them with certain powers and authority. 17 This section highlights the distribution of
legislative powers for infrastructure related items, and shows the development at different level.

Central level

Items on which the Parliament of India has exclusive power to make laws are given under the List
I of (Union list) of seventh schedule:

i. Railways
ii. National highways
iii. Major ports
iv. Airports
v. Telecommunication

15
Part VI chapter I of Government of India, 1949
16
Article 246 of part VI chapter I
17
Item 5 List II (State List) of the seventh schedule (Article 246), and Articles 243W and 243G

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Developing infrastructure under these sectors is the responsibility of the Centre, and is
administered through statutory bodies or through ministries. For example, the National Highways
Authority of India (NHAI) is the nodal agency responsible for developing, maintaining and
managing Indian national highways, and was established through the National Highways
Authority of India Act, 1988. 18 Similarly, the Airports Authority of India Act, 1994 established
the Airports Authority of India (AAI), which is responsible for “establishing or assisting in the
establishment of airports”. 19 Each of these statutory bodies adopts appropriate standards for
design and construction of sector specific infrastructure. These standards are developed by various
bodies, some governmental and some private entities. For example, the Indian Road Congress
(IRC) is a registered society of highway engineers established for developing and updating
standards, codes of practice and guidelines for the road sector. 20

State level

Items on which the legislature of any state has power to make laws include:

i. Roads, bridges, ferries, and other means of transportation not under the Centre’s
jurisdiction.
ii. Water supplies, drainage and embankments, water storage and water power.
iii. Land rights, tenures and revenue.

Within a state, every metropolitan area is required to have a committee to pre-pare a draft
development plan for the area as a whole. 21 Also, states are responsible for the constitution of
municipal corporations and other local authorities for the purpose of local self-government or
village administration. 22 The Constitution of India defines three types of municipalities: 23

18
The Gazette of India: Extraordinary, 1988.
19
The Gazette of India: Extraordinary, 1994.
20
Journals of the Indian Roads Congress, vol. 79, 2018.
21
Article 243-ZE
22
Item 5 List II (State List) of the seventh schedule (Article 246)
23
Article 243Q

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 i. Nagar Panchayats for areas in transition from a rural area to urban area;
ii. Municipal Councils for smaller urban areas; and
iii. Municipal Corporations for larger urban areas.

Establishment of municipalities is done by public notification by the Governor of the state. 24 States
may, by law, endow municipalities with the functions and implementation of certain items within
their jurisdiction, including: 25

i. Urban planning including town planning.

ii. Regulation of land-use and construction of buildings.
iii. Roads and bridges.
iv. Water supply for domestic, industrial and commercial purposes.
v. Slum improvement and upgradation.

Municipal level

Municipalities develop legal tools in the form of “Building Bye-Laws” for structural design and
construction (including that of public infrastructure such as roads), to achieve orderly development
of an area. These bye-laws are developed while keeping the local geography in mind, such as
seismic zones and flooding risk. They incorporate standards developed by the Bureau of Indian
Standards (BIS). This is the national standard setting body in India, established under The Bureau
of Indian Standards Act, 1986. 26 Some BIS standards are made mandatory through building bye-
laws within the jurisdiction of the municipality, though these bye-laws vary with each
municipality.

24
Article 243Q
25
Article 243W
26
The Gazette of India: Extraordinary, 1986.

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Panchayat level

Village panchayats are rural local bodies responsible for some of the governance functions in their
locality, as defined by Article 243B of the Constitution of India. The states may (by law) endow
panchayats with the functions and implementation of 27:

i. Roads, culverts, bridges, ferries, waterways and other means of transportation

ii. Rural electrification, including distribution of electricity
iii. Minor irrigation, water management and watershed development
iv. Drinking water

As a result, the central government is responsible for some of the infrastructure (such as national
highways), which run through municipalities. Other roads within the municipality boundary are
the responsibility of the Corporation. Out-side of the boundary, the The Maharashtra Village
Panchayats Act applies for the construction of public roads. However, there are still many small
and medium sized towns without appropriate bye-laws as they have not formed a municipality. 28
For example, “census towns” are those defined in the 2011 census as places that satisfy the criteria
of a town, but are not statutory towns. 29

Professionals and their accountability

One key element to assure safety standard compliance is the capacity of professionals involved in
the planning, design and construction of infrastructure. In India, many professions are self-
regulated, where the professional group enters into a formal agreement with the government that
allows them to formally regulate the activities of its members. 30 This formal body established
through central legislation is responsible for regulating the profession, allowing for activities such
as:

27
Article 243G
28
Ministry of Urban Development, Government of India, circular, 2016.
29
Places with a minimum population of 5000 and a density of at least 400 per square km, and at least 75% of the male
working population engaged in non-agricultura;l pursuits.
30
Balthazar, 2016. available at https://untappd.com/b/galway-brothers-brewing-balthazar-2016/2714386

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 i. Maintaining a register of professionals;
ii. Standard setting and regulation of professional education;
iii. Prescribing the code of ethics;
iv. Regulating continuous improvement (e.g., through licensing); or
v. Allowing for a dispute resolution mechanism.

The three main professionals involved in developing infrastructure are town planners, engineers
and architects. Architects focus on the design aspects of infrastructure development. In India, they
are regulated by the Council of Architecture, a statutory regulator established through the The
Architect’s Act, 1972. This act defines what constitutes an architect and provides for COA to
maintain a register of architects. This act also allows COA to notify which qualifications (and from
which institutions) are recognised, and provides for a dispute resolution mechanism.

Engineers

For engineering, some of these functions are currently performed by the Engineering Council of
India (ECI). However, ECI is not a statutory body. In 1970, the Committee on Technical
Consultancy Services set up by the Planning Commission recommended developing an All India
Institute or Association of Engineers for regulating the profession of engineering. The Committee
also recommended this body be given the responsibility of laying down “standards for education,
experience, capability, capacity, etc”, and to prepare a code of conduct. 31

Town planners

“Town planning” is a state subject, one that can be (by law) endowed to municipalities. However,
the profession of town planning (and its education) is not regulated in India, and in many places
even the definition of what constitutes a town planner may vary. 32

For example, the Municipal Corporation Jalandhar Building Bye-Laws, 2010 define a town
planner as “a person holding postgraduate degree or equivalent diploma in City or Town Planning
or Regional Planning and recognized by the “Institute of Town Planners” (India) for its associated
membership”, where the Institute of Town Planners is a private (non-statutory) entity, and not a

31
Planning Commission, Government of India, 1970.
32
Item 1 of the 12th Schedule (Article 243W) of Government of India, 1949.

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regulator. In contrast, the Maharashtra Regional and Town Planning Act, 1966 states that “Town
Planning officer means the officer appointed for the time being to be the Town Planning officer
for all or any of the provisions of this Act”.

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 Conclusion and Suggestions

After going through the above discussion, it is clear that; infrastructure is one of the important key
elements for the developed country. In other words, it can be said, that infrastructure is basic
criteria to discuss about the development. Under constitution of India there is distribution of
legislative power by which various level of government is responsible for the development of
infrastructure. Under seventh schedule of constitution, it is well settled that, there is total three
lists, namely Union list, state list and concurrent list, under union list central government is under
obligation to develop the infrastructure, under state list there are several subject matters is
discussed for which state government is under obligation to maintain and develop the
infrastructure. Third and last list of the schedule provides for concurrent list, where both the
government, central as well as state are under obligation and responsible for the development.

Supreme Court of India also by interpretation of some of the article under part III of the
constitution makes the government responsible to provide and develop the infrastructure.

For example, under article 21 and 21- A which talks about the life and personal liberty and right
to education respectively. Under these circumstances, government is responsible for providing
basic standards to the citizen and people.

There are various professionals who plays important role in the development of the infrastructure,
like engineers, social planner etc. they made various efforts for the development, they use their
intellect for the development.

My suggestion in this regard is that people of India or any county should also participate in the
development and it should not be understood by them that, duty of development is only made on
the part of government. The infrastructure which is already developed by the government it should
be protected by the people.

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 Bibliography

Primary Sources

Statutes Referred

i. Constitution of India.
ii. Government of India Act, 1935.
iii. The Gazette of India: Extraordinary, 1984.
iv. The Gazette of India: Extraordinary, 1986.
v. The Gazette of India: Extraordinary, 1994.

Articles referred from Internet Sources

i. https://www.investopedia.com/terms/i/infrastructure.asp
ii. Brancalente, Di Palma et al Gianpiero Torrisi, public infrastructure: definition,
classification and measurement issues, Munich personal RePEc Archive. 2006
iii. Easterly and Rebelo, 1993.https://untappd.com/b/galway-brothers-brewing-balthazar
2016/2714386

Secondary Sources

Books Referred

The following textbooks have been referred to:

i. Chatterji Souvik, Laws of Infrastructure Development in India, Deep and Deep

publications, ed. 1, 2015.

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Reports referred:

i. Ministry of Urban Development, Government of India, 2016.

ii. Indian Roads Congress, 2018
iii. Central Public Works Department, Ministry of Urban Development, 2013
iv. Global Facility for Disaster Reduction and Recovery (GFDRR), 2016

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