State

Article -12
 Article - 12

Fundamental Rights are available

only against the state and not against
private bodies
 Importance of term State
Power of the Supreme Court to issue Writ order or
direction in the event of violation of Fundamental
Rights (Art.32)
High Court Issue writ, order or direction when there is

violation of Fundamental Right or otherwise (Art. 226)

Both can issue writs only against persons/bodies falling

within the definition of State

 Meaning of State
As defined in Article 12 of Constitution of India State
Includes :-

Central and State Government

Public Officials
Parliament and State Legislatures
Local Authorities
Other Authorities
 Meaning of Authority
As per websters Dicttionary:

A person or body exercising power to command

In context of Article 12 :

Authority means the power to make laws, orders,

regulations, bylaws, notifications, etc
 Meaning of Local Authority

It is not defined under the Constitution of India

As per Section 3(31) of the General Clauses Act :

Local Authorities includes Municipalities, District

Board, Panchayat, Trust etc

Some Local Authorities Village Panchayat, Hosing

Board, School Examination Board
 Meaning of other Authorities
The meaning of other Authorities has not been defined
in the constitution of India

With the passage of time the meaning of State is

widening.
 Cont.
No Scope of widening the definition of State under
Article -12 in the first four instance

Central and State Government

Public Officials
Parliament and State Legislatures
Local Authorities

Only there is a scope of widening definition of State in

other Authorities
 Other Authorities
1954- Interpretation of Other Authorities by Madras
High Court

Case : University of Madras V. Shantabai ( AIR 1954

Mad.67)
It said other authorities means authorities means

authorities of like nature i.e. ejusdem generis

Authorities exercising govt, or Sovereign functions
University is not a state
 Other Authorities
Ujjambai v. State of U.P (AIR 1962 SC 1621)
View of Madras High Court reversed by the Supreme

Court
Held: ejusdem generis rule could not be applied

interpreting this expression of other Authorities as there

is no common genus among the bodies defined under
Article -12
There is no common things among the categories of

Article -12, i.e. Central and State Government as well

as parliament and state legislature
 Other Authorities
In 1967 the SC further expanded the scope of other
Authorities in the case of
Electricity Board, Rajasthan V. Mohan lal
AIR 1967 SC 1857
It was stated that expression other Authorities is wide
enough to include all authorities created by the
constitution and is discharging governmental/sovereign
functions ie. Powers to male rules or regulations.
 Other Authorities
Sukhdev v. Bhagatram (AIR 1975 SC 1331)

The Supreme Court, by majority of 4:1 upheld the decision of

Rajasthan Electric Board
It expanded the definition of State by including three

statutory corporations viz. ONGC, LIC, IFC within the

meaning of other authorities
Central Government has a control over the activities.It was

further held Rules/ Regulations provides terms and conditions

of services, conditions for appointment termination& pay
scales of employees, disqualification of members etc,
 Other Authorities
R.D. Shetty V. International Airport Authority
(AIR 1979 SC 1628)
While deciding International Airport Authority as State
Justice Bhagwati said :
If a body is an agency or instrumentality of government

it may be an authority under Article 12

Airport Authority was created by an act of parliament

Capital was provided by Central Government

Central Government had power to appoint and terminate

the chairman an other members of airport Authority.

 Airport Authority case
Guidelines given in Airport Authority Case

Financial Resources of the state is the chief funding

source eg. Entire share capital is held by the
government
Existence of deep and pervasive state control
 Ajay Hasias case
Ajay Hasia v. Khalid Mujib ( AIR 1981 SC 212)

- Five judge bench

The Supreme Court held that even a society registered

under the Societies Registration Act is a State within

the meaning of Article 12
Ratio and guidelines of Airport Authority case are

upheld and modified to certain extent

 Ajay Hasias case
Relieved on the judgement of sukhdev vs. Bhagatram
and Airport Authority case
It was observed that there was a deep and pervasive

control of central and state government over the

management and function of a society.
Govt looked after the procedure of appointment, terms

of service and termination of the employees

The entire share capital is held by the Government
 Bharat Petroleum Case
Somprakash v. Union of India
AIR 1981 SC 212 ( three judge bench)
It is considered as one of the landmark case of Justice

Krishna Iyer.
It was held that Bharat Petroleum is a Government

Company is a State under Article 12

Majority of SC judges were keen to declare diff govt

entities as State in the era of 1975-85
 Bharat Petroleum Case cont
Bharat Petrol was statutory taken over by force of the
Burmah Shell ( Acquisition of Undertakings in India)
Act, 1976
It is a Govt. Company having statutory flavour, a limb

of Govt, an agency of State.

Different Statutory Corporation covered
under other Authority

U.P.Warehousing Corporation in the case of

U.P.Warehousing Corporation v. Vijay Narayan (AIR
1980 SC 840)
Air India in case of Air India V. B.R. Age (AIR 1996

Sc 276)
Food Corporation of India in case of Workmen, FCT

v M/s Food Corporation of India.

Different Companies covered under other
Authority

Central and Industrial Development Corporation

(1990)3 SCC 280

Hindustan Steel Works Constructions Ltd (AIR 1997

SC 2275)

Indian Oil Corporation (AIR 1990 SC 1031)

Law inconsistent with fundamental Right
Pre- Constitutional law
Doctrine of Severability/ Separability
Doctrine of Eclipse
Doctrine of Waiver
 Doctrine of Severability
The doctrine of severability is a guardian of our fundamental rights

The doctrine of severability means severing part of a statute which is inconsistent with any of
the constitutional provisions and particularly the provisions contained under the chapter of
fundamental rights in the Indian Constitution. The other part of the severed statute is to
remain valid.

The Supreme Court of India has considered the doctrine of severability in various cases such
as the A.K. Gopalans Case (AIR 1950 SC 27)

wheresection14ofpreventiondetentionAct,wasfoundouttobeinviolationofArticle14of
theconstitution.ItwasheldbytheApexcourtthatitissection14oftheactwhichistobe
struckdownnottheactasawhole.Itwasalsoheldthattheomissionofsection14oftheact
willnotchangetheobjectoftheactandhenceitisseverable.
 Doctrine of Severability
The apex court of India, has summarized the rules relating to doctrine of severability as
follows:

The intention of the legislature is to enacted that law, knowing full well that the rest of the
statute is invalid - to determine whether valid parts are separable or not.

If valid and invalid are so inextricably mixed up, the whole law is declared valid.

If valid and invalid form part of a single scheme, the whole law is declared invalid.

After omitting, the invalid part, if what remain is very thin and what emerges out is
something different, then the entire law is declared invalid.
 Doctrine of Eclipse
The Doctrine of Eclipse in constitutional law stands for over-shadowing any provision of a statute by the
fundamental rights contained in Part-III of the Indian Constitution.

In 1955, Supreme Court of India in the case of B. Narain vs. the State of MP has introduced the Doctrine of
Eclipse and stated that if any law is not consistent with any provision of the fundamental right then such law
would be overshadowed by the fundamental right and it will remain dormant but it will no to be dead
altogether.

This dormant statute whole or any of its part will become operative as a valid law when the shadow cast by the
fundamental right is removed by a subsequent amendment.

The Constitution of India in Article 13(1) states that all laws enforced in India immediately before the
commencement of the constitution, in so far as they are inconsistent with any or all fundamental rights shall be
valid to the extent of such inconsistency.

The Supreme Court of India in its earlier decisions had applied the doctrine of eclipse only to pre-
constitutional laws but later on in the case of the state of Gujarat vs. Shri Ambika Mills (1974). It stated that the
doctrine can be extended to the post constitutional laws as well
 Doctrine of Eclipse
The Doctrine of Eclipse means any law inconsistent with Fundamental Rights is not
invalid. It is not dead totally but overshadowed by the Fundamental Rights. The
inconsistency can be removed by constitutional amendment to the relevant fundamental right
so that eclipse vanishes and the entire law becomes valid.

When a Court strikes a part of law, it becomes unenforceable. Hence, an 'eclipse' is said to be
cast on it. The law just becomes invalid but continues to exist. The eclipse is removed when
another (probably a higher level court) makes the law valid again or an amendment is
brought to it by way of Legislation.

TheSupreme court of India, in P Ratinam case, has held Section 309 Indian Penal
Code unconstitutional. Hence, the section was under eclipse. However, a constitutional
bench in Gian Kaur case reversed this decision and held the section as constitutional
whereby the eclipse was removed and it because operable again.
 Doctrine of Waiver

Waiver means a document that records the waiving of

a legal right.
Article 14 provides that the FR cannot be waived by
any person.
The Supreme Court shall see that the FR are enforced
even if one might have waived it.
 Doctrine of Waiver
The doctrine of waiver of right is based on the premise
that a person is his best judge and that he has the
liberty to waive the enjoyment of such right as are
conferred on him by the state.
However the person must have the knowledge of his

rights and that the waiver should be voluntary.

Distinction Between pre constitutional laws
and post constitutional laws
The laws which were in force before the
commencement of the Constitution are Pre-
Constitutional Laws
The laws enacted by the State after the commencement

of the Constitution are called as Post-Constitutional

laws.
All the doctrine discussed is applicable only in terms

of the Pre-Constitutional Laws.