DAY 5

CLASS- LL.B. 2ND SEMESTER

SUBJECT- CONSTITUTION
TOPIC- DEFINITION (ARTICLE-12 OF CONSTITUTION OF INDIA)

Introduction:-

Part III of the Indian Constitution from Articles 12 to 35 guarantees certain fundamental rights
and remedies in case of their violation. Article 12 clarifies that the term State occurring in
Article 13 (2) or any other provision concerning fundamental rights has been given quality
meaning. The same definition has been made applicable to Part IV of Article 36. As
fundamental rights have been guaranteed to protect the public from the arbitrary action of
the State.

Article 12- Definition:

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 and other authorities, within the territory of India or under the control of the
Government of India.

Some Case Laws on Other Authorities:

 Rajasthan State Electricity Board v/s Mohanlal, 2:The Supreme Court held that a
State Electricity Board, set up by a statute having some commercial function falls
within the meeting of the authority of Article 12.

 Sukhdev v/s Bhagatram,3:The Supreme Court held that three statutory bodies i.e Life
Insurance Corporation, Oil and Natural Gas Commission and the Finance
Corporation falls within the term of Article 12.

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  R.D. Shetty (Raman Dayaram Shetty) v/s International Airport Authority of
India,4:

 Issue:

o Whether International Airport Authority is a State under Article 12 of the Indian

Constitution?

The Indian Airport Authority is a statutory body created under the State and passed by the
Parliament to carry out commercial functions of aviation. The Supreme Court held that for
determining whether an authority is 'State' under Article 12, the test is whether a particular
corporation i.e public or private can be said to be instrumentality or agency of the government
or not? Determining it is instrumental for the agency of the State, the same principles mentioned
in Ajay Hasia were laid down in this case also.5

Hence Supreme Court held that Indian Airport Authority is a statutory body, an
instrumental or an agency of the State and comes within the definition of Article 12.

 Saabhajit Tiwari v/s Union of India, 6:The Supreme Court ruled that the Indian
Council of Scientific Research, a body registered under the Societies Registration Act,
a non-statutory body, but under the control of the Government of India hence was
not a State.

Again the Supreme Court made an obligation suggesting that a non-statutory body falls
in the purview of Article 12 if it could act as an instrumentality or agency of the
Government the question regarding the status of a non-statutory body was finally
decided in Ajay Hasia, 1987.

 Ajay Hasia v/s Khalid Mujib,7:It is a famous case decided by Justice P.N. Bhagwati,
on Article 12 of the Indian Constitution which defines the expression of a 'State'.

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Weather Judiciary is a State?

Naresh Sridhar Mirajkar v/s The State of Maharashtra8: the judiciary for discharge of
its judicial functions cannot come under the definitions of 'state' and is not amenable to the
writ. Which is over ruled under in case of A.R. Antulay v/s R.S. Naik9.

8
1967 AIR, 1 1966 SCR (3) 744
9
1986 AIR 2045 1986 SCR (2) 621 1986 SCC (2) 716 1986 SCALE (1)745

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Day 6

Class- LL.B. 2ND SEMESTER

Topic- Law inconsistent with or in derogation of the fundamental rights (Article-13 of

Constitution of India)

Introduction:-

‘People believe in law’ and to keep that belief the Drafting committee gave the concept
of Fundamental Rights in Part III of the Indian constitution. It gives liberty to the citizens
of India and protects it from being infringed by the state. It also provides for the remedy if
their fundamental right is violated. And to keep the belief of people in the State, Articles 12
and 13 were introduced. Article 12 gives the definition of state and tells about the
responsibility the state has towards people and their fundamental rights whereas Article 13
of the Indian constitution which presents itself in four parts, makes the concept of
fundamental rights more powerful and gives it a real effect.

Article 13- Law inconsistent with or in derogation of the fundamental rights:

1. All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall,
to the extent of such inconsistency, be void
2. The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of
the contravention, be void
3. In this article, unless the context otherwise requires law includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages having in the territory of India
the force of law; laws in force includes laws passed or made by Legislature or other
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas
4. Nothing in this article shall apply to any amendment of this Constitution made
under Article 368.

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EXPLANATION:

Article 13 aids the court and citizens to keep the powers of the legislature under
preview. Article 13 of the Indian Constitution describes the means for judicial review.
It enjoins a duty on the Indian State to respect and implement the fundamental right. And at the
same time, it confers a power on the courts to declare a law or an act void if it infringes the
fundamental rights.

The judiciary plays a very important role as a protector of the constitutional rights.
The primary responsibility for implementation of the rule of law lies that the judiciary. It is the
significance of judicial review, to ensure that democracy is inclusive and there is accountability
of everyone who wields or Exercises public power. The principle of judicial review
becomes an essential feature of Indian constitution.

Retrospective effect of Article 13:

In the landmark case of Keshavan Madhava Menon v. the State Of Bombay,10 the
issue that came before the 7-judge bench of the Apex Court was whether laws found abridging
the fundamental rights under Article 13 would be void-ab-initio or void with prospective effect.
The Supreme Court supported the latter concept and held that the laws would be void and
ineffectual prospectively. Those who committed an offense under a law infringing the
fundamental rights before the law was declared void would not be protected. However, the
Court noted that where a person committed an offence under a law that was effective at the
time of offence but was subsequently found to be violative of the fundamental right and where
the prosecution has not been concluded, the proceedings under the void law cannot be
continued. Thus, if at any time when the question is raised before the Court whether the person
committed an offense under the concerned law or not, it is found that the law has been declared
void under Article 13, the person cannot be prosecuted under the concerned law.

10
1951 AIR 128; 1951 SCR 228

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Day 7

Class- LL.B. 2ND SEMESTER

Topic- Law inconsistent with or in derogation of the fundamental rights (Article-13 of

Constitution of India)

CONTINUE OF ARTICLE 13:

Laws inconsistent with Fundamental Rights:

Article 13(1) talks about the laws which were present before the constitution came into
force. It says that if they are inconsistent with the provisions of the part of this article will
be void to the extent of the inconsistency.

Article 13(2) talks about the laws which are passed after the constitution came into force. It
renders all the laws void which violates the provisions of this part.

Article 13 of the Constitution of India provide some important doctrine as follow:

1) Doctrine of Severability
2) Doctrine of eclipse
3) Doctrine of waver

DOCTRINE OF SEVERABILITY:

As in article 13(1), it is mentioned that the pre-constitutional law will only be void to
the extent of the inconsistency while in article 13(2) it is mentioned that post-constitutional law
will be void to the extent of the contravention.

The doctrine of Severability says that is if a part of any law is inconsistent then the
rest of the part will remain valid. It applies to both pre and post-constitutional law.

Leading case relating to doctrine of Severability is A.K. Gopalan v. State of Madras11 It

was found that section 14 of the preventive detention Act was violating Article 14 of the
constitution so it was made void but the other parts of the act were separable while still alive
and operative.

10
11
1950 AIR 27, 1950 SCR 88

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DOCTRINE OF ECLIPSE:

Article 13(1) talks about the pre-constitutional law as it says that the laws existing
before the commencement of the constitution if found inconsistent with the provisions present
in article 13 then they will be void.

But the Doctrine of Eclipse says that the inconsistent laws though becomes out of
whack but not completely dead. It is eclipsed by the fundamental rights and can again be alive
through some constitutional amendments.

It is only applicable to citizens as non-citizens do not have fundamental rights so they

can’t challenge the validity of any law.

In the landmark case of Bhikaji Narain Dhakras v. State of Madhya Pradesh,12 a state law
empowering the government to exclude motor transport from business was challenged as being
violative of Article 19(1)(g). Subsequently, by the Constitution (1st Amendment) Act,
1951, the Government was empowered to make any business a monopoly. The Supreme
Court held that after the 1951 Amendment the Act had become operative.

Deep Chand V. State of Uttar Pradesh13 It was ruled out that only the pre-
constitutional law can be brought to life whereas the post-constitutional law which
infringes fundamental right is void from its dawn.

DOCTRINE OF WAIVER:

This doctrine considers that a person is his own judge and will choose what is best
for him. The doctrine of waiver says that a person can put aside his right if he wants to. It
only talks about individual rights and not the rights of the public in general.

In the landmark case of Basheshar Nath v. the Commissioner of Income Tax14,

the court dealt with the issue of whether fundamental rights can be waived or not. The Court
firstly referred to the judgment of Behram Khurshed Pesikaka v. State of Bombay15, where the
Court had indicated a preference for the American position of doctrine of waiver. The Court
in Behram Khurshed had held that if the fundamental rights are for the individual’s benefit,
then

12
1955 AIR 781, 1955 SCR (2) 589
13
1959 AIR 648, 1959 SCR Supl. (2) 8
14
1959 AIR 149 1959 SCR Supl.

11
15
AIR 1955 SC 123, (1955) 57 BOMLR 575, 1955 CriLJ 215, 1955 1 SCR 613

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they can be waived but the fundamental rights aimed at serving the interest of the society cannot
be waived.

However, in this case, the court held that the American position could not be
applied in India. The social economic and political scenario in the United States is very
different from the social political and economic scenario prevailing in India. To determine
the scope of applicability of the doctrine of waiver, the nature of the fundamental rights and
the effect of the violation of these rights on the individual as well as on the society has to be
considered.

Fundamental rights in India are meant for the welfare of society and not for
securing individual benefit. These rights provide social, political and economic rights to the
people.

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Day 8

Class- LL.B. 2ND SEMESTER

Topic- Law inconsistent with or in derogation of the fundamental rights (Article-13 of

Constitution of India)

CONTINUE OF ARTICLE 13:

Applicability of Article 13 to Constitutional Amendments:

One of the most contentious issues in relation to Article 13 has been whether
Constitutional amendments are covered within the expression “law” as used in Article 13.

The Supreme Court firstly decided this issue in the case of Shankari Prasad Singh Deo v.
Union of India16. In this case, the Constitution (1st Amendment) Act, 1951 was challenged as
being violative of fundamental rights and thus void under Article 13 of the Constitution.
However, the Apex Court held that the constitutional amendments made by the Parliament
under Article 368 of the Constitution cannot be subjected to review under Article 13.

However, the Court took a different stand in the case of I.C. Golak Nath v. State of
Punjab17. In this case, the court held that constitutional amendments fall within the scope
of Article 13 and can be declared void if found violating the fundamental rights enshrined
in Part III of the Constitution. The Golak Nath judgment was subsequently overruled in the
case of Kesavananda Bharati v. State of Kerala18 where the Supreme Court upheld the validity
of the 24th Amendment Act and held that any fundamental right can be amended by the
Parliament but the basic structure of the Constitution cannot be altered.

CONCLUSION:

“To no one should the right and justice be delayed, sold or denied” – promises our
constitution but still injustice is been seen.

Fundamental rights were not so fundamental before the ADM Jabalpur case but many
changes have been noticed since then but there are many to still strive for.

Whether it is the prison reforms that are to be changed and the system is to be made
more transparent or the providing of rights against private individuals and not only the
state,

16
1951 AIR 458, 1952 SCR 89
17
1967 AIR 1643, 1967 SCR (2) 762
14
18
(1973) 4 SCC 225; AIR 1973 SC 1461

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the legal mechanism to carry out the functioning of Article 13 which means the whole
definition of law has to be armed till teeth.

In the absence of personal laws being included within Article 13, Article 13(1)
runs the risk of becoming redundant since most of the pre-Constitutional laws have
undergone the test of Part III. However, several personal laws of the pre-constitution era
continue to remain operative without being subjected to judicial review. The true purpose
of Article 13 can be fulfilled only through a wide and flexible interpretation.

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