AMITY UNIVERSITY HARYANA

“ ARTICLE 12 and 13
OF INDIAN CONSTITUION”

SUBMITTED TO: SUBMITTED BY:

Mr. SHIV RAMAN ANUBHAV SINGH
(Asst. Professor 3) BBA LLB (H)
AMITY LAW SCHOOL 4th SEMESTER
ABSTRACT
The concept of State has been discussed by many political thinkers and defined in different ways

under various literatures. This article discusses about the scope of the definition of the State
under article 12 of the Constitution of India. The scope of article 12 has been expanded throughp
judicial decisions from time to time. The term other authorities has been widely interpreted by
the judiciary in a number of cases. The discussion also includes the recent developments and the
role of judiciary in this field. In this paper it is mentioned that how the fundamental rights are
protected through judicial activism. It is important to note that any company or institution and
cooperative societies may also be included within article 12 if they satisfy the test of agency or
instrumentality of the State.

INTRODUCTION

…….It is the business of the State………to maintain the conditions without which a free
exercise of the human faculties is impossible. - T.H. Green

The term ‘State’ has been defined in various ways by different political philosophers. After
making a study on the various ideas and opinions of different classical, medieval and modern
philosophers one can better understand the importance and significance of the relationship
between the individual and the State. The political thinkers from ancient time through middle age
and modern time have provided divergent and sometimes diametrically opposite ideas about the
nature, purpose, functions and relationship with the individuals and the State. The Greeks
mentioned polis for City States because at that ancient time there were City States existing in
Greece. Aristotle’s ‘Polis’ refers to a city community. MacIver was of the opinion that the Greek
city communities were existing as transitional forms rather than a complete State. MacIver said
“perhaps they should not be included within the classification of States any more than the
pithecanthropus is to be included among the races of man .
Professor Gilchrist defines the State as: “The State is a concept of political science and a moral
reality which exist where a number of people living on a definite territory, are unfit under a
Government which in internal matters is the organ for expressing their sovereignty and in
external matters is independent of the Governments.
Robert A. Dahl defined the State as: “The political system made up of the residents of the
territorial area is a State.
In the United States, a judicial decision is included in the concept of state action for the purpose
of enforcement of the fundamental rights conferred by the 14th amendment. In Virginia v. Rives,
the Supreme Court observed that a State acts by its legislative, its executive, or its judicial
authorities. It can act in no other way.

DEFINITION OF THE STATE

UNDER ATRICLE 12

The Constitution of India defines the State under article 12. It is said under this article that State
means and includes the Government and the parliament of India and all the State Governments
as well as the Legislatures of each state in India and all local authority and other authorities
inside the territory of India or under the control of the Government of India. In this definition
everything is clear except the term other authorities. Therefore, for the protection of the
fundamental rights it is important that the definition of the state must be a very comprehensive
one. Therefore, article 12 gives an extended meaning to the words ‘the state’ wherever they
occur in Part III of the Constitution. Under this definition not only the Executive and Legislative
organs of the Union and the States, but also local bodies for example municipality and ‘other
authorities’ which include the instrumentalities or agencies of the State.

According to Article 12, the term ‘State’ includes:

(i) The Government and Parliament of India: the term “State” includes Government of India
(Union Executive) and the Parliament of India (i.e., the Union Legislature)
(ii) The Government and the Legislature of a State i.e., the State Executive and the legislature of
each state.

(iii) All local authorities; and

(iv) Other authorities within the territory of India; or under the control of the Central
Government.

Here three important terms need to be interpreted:

1. Territory of India: Territory of India should be taken to mean territory of India as

defined in Article 1(3). According to Article 1(3) the territory of India shall comprise the
territories of the States, the Union Territories specified in the first schedule and such
other territories as may be acquired.

2. Local Authority: according to sub-section (31) of Section 3 of the General Clauses Act,
1897 “Local Authority” shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the Government within
the control or management of a municipal or local fund. According to Entry 5 of the List
II of 7th Schedule ‘ local government’ includes municipal corporation, improvement trust,
district boards, mining settlement authorities and other local authorities for the purpose of
local self-government or village administration. Village panchayat is also included within
the meaning of the term local authority. In Mohammad Yasin v. Town Area
Committee , the Supreme Court held that the Bye-laws of a Municipal Committee
charging a prescribed fee on the wholesale dealer was an order by the State Authority
contravened Article 19(1) (g). These bye-laws in effect and in substance have brought
 about a total stoppage of the wholesale dealers’ business in the commercial sense. The
Supreme Court has ruled that to be characterized as a ‘local authority’ the authority
concerned must have separate legal existence as a corporate body, it must not be a mere
government agency but must be legally an independent entity; it must function in a
defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the
inhabitants of the area. It must also enjoy a certain degree of autonomy either complete or
partial, must be entrusted by statute with such governmental functions and duties as are
usually entrusted to locally like health and education, water and sewerage, town planning
and development roads, markets, transportation, social welfare services, etc. Finally, such
body must have the power to raise funds for furtherance of its activities and fulfilment of
its objectives by levying taxes, rates, charges or fees.

3. Other Authorities: The term ‘other authorities’ in Article 12 has nowhere been defined.
Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of
India. Therefore, its interpretation has caused a good deal of difficulty, and judicial
opinion has undergone changes over time.

Today’s government performs a large number of functions because of the prevailing philosophy
of a social welfare state. The government acts through natural persons as well as juridical
persons. Some functions are discharged through the traditional governmental departments and
officials while some functions are discharged through autonomous bodies existing outside the
departmental structure, such as, companies, corporations etc. Hence, the term ‘other authorities’
has been interpreted by the following judicial pronouncements in accordance with the facts and
circumstances of different cases.

In the case of University of Madras v. Santa Bai, the Madras High Court held that ‘other
authorities’ could only indicate authorities of like nature, i.e., ejusdem generis. So construed it
could only mean authorities exercising governmental or sovereign functions. It cannot include
persons, natural or juristic. Such as, a university unless it is ‘maintained by the State’.

But in Ujjammabai v. State of U.P., The Court rejected this restrictive interpretation of the
expression ‘other authorities’ given by the Madras High Court and held that the ejusdem generis
rule could not be resorted to the in interpreting tis expression. In Article 12 the bodies
specifically named are the Government of Union and the States, the Legislature of the Union and
States and local authorities. There is no common genus running through these named bodies nor
can these bodies so placed in one single category on any rational basis.

In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that ‘other authorities’
would include all authorities created by the constitution or statute on whom powers are conferred
by law. It was not necessary that the statutory authority should be engaged in performing
government or sovereign functions. The court emphasized that it is not material that some of the
power conferred on the concerned authority are of commercial nature. This is because under Art.
298 the government is empowered to carry on any trade or commerce. Thus, the court observed :
“ The circumstances that the Board under the Electricity Supply Act is required to carry on some
activities of the nature of trade or commerce does not, therefore give any indication that the
‘Board” must be excluded from the scope of the word ‘State’ is used in Article 12.

The next important case relating to the interpretation of the term ‘other authorities’ is, Sukhdev
Singh V. Bhagatram, The Supreme Court, following the test laid down in Electricity Board
Rajasthan’s Case by 4:1 majority has stated that the three statutory bodies viz., LIC, ONCG &
FCI were held to be ‘authorities’ and thus fall within the term ‘State’ in Article 12. These
corporations were created by the statutes, had the statutory power to make binding rules &
regulations and were subject to the pervasive governmental control. These corporations do have
independent personalities in the eyes of law, but that does not mean that “they are not subject to
the control of the government or they are not instrumentalities of the government. The
employees of these statutory bodies have a statutory status and they are entitled to declaration of
being in employment when their dismissal or removal is in contravention of statutory provisions.
The employees are entitled to claim protection of Articles 14 and 16 against the corporations.
Mathew, J., in a separate but concurring judgement, held that the Public Corporations is a new
type of institution which sprang from the new social and economic functions of the government,
and instead of classifying it into old legal category, it should be adopted to the changing time and
conditions. The State being an abstract entity, could undertake trade or business as envisaged
under Article 298 through an agency, instrumentality or juristic person. He preferred a broader
test that if the functions of the Corporation are of public importance and closely related to
governmental functions it should be treated an agency or instrumentality of government and
hence a ‘State’ within the ambit of Article 12 of the Constitution.

In simple terms, Statutory corporations are agencies or instrumentalities of the state for carrying
on trade or business which otherwise would have been carried out by the state departmentally.
Therefore it has to be seen whether a body is acting as an agency or instrumentality of the state.

The approach in Sukhdev Singh case, was reiterated with approval in R D Shetty V.
International Airport Authority, Bhagwati, J., speaking for the Court, pointed out the
corporations acting as instrumentality or agency of government would obviously be subject to
the same limitation in the field of constitutional or administrative as the government itself,
though in the eye of the law they would be distinct and independent legal entities. If the
government acting through its officers is subject to certain constitutional and public law
limitations, it must follow a fortiori, that government acting through the instrumentality or
agency of corporations should equally be subject to the same limitations.

Bhagwati, J., discussed in detail various factors relevant for determining whether a body is an
instrumentality or agency of the state. These factors as they were finally summarized by him
in Ajay Hasia V. Khalid Mujib, are:
1. if the entire share capital of the corporation is held by the government, it would go a long way
towards indicating that the corporation is an instrumentality or authority of the government.

2. Where the financial assistance of the state is so much as to meet almost entire
expenditure of the corporation it would afford some indication of the corporation being
impregnated with government character.

3. Whether the corporation enjoys monopoly status which is state conferred or state
protected.

4. Existence of deep and pervasive state control may afford an indication of that the
corporation is a state agency or instrumentality.
 5. If the functions of the corporation are of public importance and closely related to
government functions it would be relevant factor in classifying a corporation as an
instrumentality or agency of government.

6. If a department of the government is transferred to corporation it would be a strong factor

supporting the inference of the corporation being an instrumentality or agency of
government.
The Supreme Court ruled in the instant case that where a corporation in an
instrumentality or agency of the government, it must be held to be an authority under
Article 12.However, these tests are not conclusive or clinching, and it must be realised
that it would not be stretched so far as to bring in every autonomous body which has
some nexus with the government within the sweep of the expression. Following this
approach, it was held that the international Airport Authority constituted under the
International Airport Agency Act, 1971 was an authority and, therefore, ‘State’ within the
meaning of Article 12.

“The concept of the instrumentality or agency of the government is not limited to a corporation
created by statute but is equally applicable to a company or society.”

This line of approach to the meaning of other authorities has been finally confirmed in Som
Prakash Rekhi V. Union of India. Applying the criteria laid down in the International Airport
Authority case, the Supreme Court reached the conclusion that there is enough material to hold
that the Bharat Petroleum Corporation registered as a company under the Companies Act, is
State within the enlarged meaning of Art. 12. Consequent upon takeover of Burmah Shell under
the Burmah Shell (Acquisition of Undetakings in India) Act, 1976, the right, title and interest of
the company stood transferred and vested in the Government of India. Thereafter, the Central
Government took necessary steps for vesting the undertaking in the BPC Ltd. which became the
statutory successor of the petitioner employer. Krishna Iyer, J., speaking for himself
and Chinnapa Reddy. J., Pathak, J.concurring, observed that the various provisions of the Act
of 1976 have transformed the corporation into an instrumentality of the Central Government with
a strong statutory flavour super-added are clear indicia of power to make it an ‘authority’.
Although registered as a company under the Companies Act, the BPC is clearly a creature of the
statute, a limb of government, an agency of the State and is recognized and clothed with rights
and duties by the Statute.

In Ajay Hasia v. Khalid Mujib, the question arose whether the Regional Engineering College,
Srinagar, established, administered and managed by a society registered under the J & K
Registration of Societies Act, was a State within the meaning of Article 12. Bhagwati,
J., speaking for the unanimous five judge-bench, reiterated that the tests for determining as to
when a corporation falls within the definition of State in Article 12 is whether it is an
instrumentality or agency of government. The enquiry must be not how the juristic person is born
but why it has been brought into existence. It is, therefore, immaterial whether the corporation is
created by the statute or under a statute. The concept of instrumentality or agency of government,
is not limited to a corporation created by the statute but is equally applicable to a company or
society considering the relevant factors as explained in the International Airport Authority
case. Applying this criterion, it was held that the Society registered under the J&K Registration
of Societies Act was an instrumentality or agency of the State and the Central Government, for
the reason that these governments had full control of the working of the society and the society
was merely a projection.

Following the law laid down in the Ajay Hasia case, the Indian Statistical Institute, Indian
Council of Agricultural Research, Sainik School Society, U.P. State Cooperative Land
Development Bank Ltd., all societies registered under the Societies Registration Act; Project
and Equipment Corporation of India Ltd., a Government of India Undertaking; Food Corporation
of India, a statutory corporation; the Steel Authority of India Ltd., a public limited company
owned, controlled and supervised by the Central Government; the Indian Oil Corporation, a
company registered under the Companies Act of 2013, a State-aided school, whose employees
enjoy statutory protection and which is subject to regulations made by the State education
department; a medical college run by a municipal corporation; several electricity boards created
on the lines of Rajasthan Electricity Board; Central Government and two State Governments; a
Government Company constituted as a development authority under a State town Planning
Act; regional rural banks established under the Regional Rural Banks Act, 1976; port trusts
created under the Major Port Trusts Act, 1889 or 1963 have been held to be “other authorities”
within the meaning of Article 12.
In this expansive trend, there have been some discordant notes as well. One such example is
furnished by Tekraj Vasandi v. U.O.I., where the Supreme Court held the ‘Institute of
Constitutional and Parliamentary Studies’, a society registered under the Societies Registration
Act, 1860, as not being an ‘authority’ under Article 12, The Institute is a registered society
receiving grants from the Central Government and having the President of India, Vice-President
and the Prime Minister among its honorary members. The Central Government exercises a good
deal of control over the Institute. Inspite of the government funding and control, the court has
refused to hold it as an authority.

On the same basis, in the case of Chandra Mohan Khanna v. NCERT, NCERT, has been held
to be outside the scope of Article 12. NCERT is a society registered under Societies Registration
Act. It is largely an autonomous body; its activities are not wholly related to governmental
functions; governmental control is confined mostly to ensuring that its funds are properly
utilized; its funding is not entirely from government sources.
Another example of the expansive interpretation of the expression ‘other authorities’ in Art. 12 is
furnished by the decision of the Supreme Court in Pradeep Kr. Biswas V. Indian Institute of
Chemical Biology. In this case, the Supreme Court held that the Council of Scientific and
Industrial Research (CSIR) is an authority under Art. 12 and was bound by Art. 14. The Court
has ruled that the “Control of the Government in CSIR is ubiquitous. The court has now laid
down the following proposition for identification of ‘authority’ within Art. 12.

The question in each case would be – whether in the light of the cumulative facts as established,
the body is financially, functionally and administratively dominated by or under the control of
the government. Such control must be particular to the body in question and must be pervasive.
If this is found then the body is a state within Article 12. On the other hand, when control is
merely regulatory whether under statute or otherwise it would not serve to make the body a state.
IS JUDICIARY INCLUDED IN THE WORD ‘STATE’?

Unlike in U.S.A, where the judicial decision implies ‘ State action’ for the purposes of
enforcement of fundamental rights, in India the ‘judiciary’ is not specifically mentioned in Art.
12. The judicial view is that the judgements of courts cannot be challenged on the ground that
hey contravene fundamental rights. Now, the question arises does it mean that the term judiciary
is not be included in the concept of ‘state’? The answer depends upon the distinction between the
judicial and non-judicial functions of the courts. In the exercise of the non-judicial functions, the
courts fall within the definition of the ‘State’. The exercise of judicial functions will not occasion
the infringement of fundamental rights and, therefore, the question of bringing the courts within
the definition of the ‘state’ would not arise.

In Naresh v. State of Maharashtra, it was held that even if a court is thee State a writ under
Art. 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders,
because such orders cannot be said to violate the fundamental rights. What the judicial decisions
purports to do is to decide the controversy between the parties and nothing more. The court said
that the ‘judiciary’ while exercising its rule-making power under Art. 145 would be covered by
the expression ‘State’ within the meaning of Art. 12, but while performing its judicial functions,
it is not so included.

In Rupa Ashok Hurra v. Ashok Hurra, the apex court has re-affirmed and ruled that no
judicial proceeding could be said to violate any of the fundamental rights. It was said to be
settled position of law that the superior courts of justice did not fall within the ambit of ‘State’ or
‘other authorities’ under Art. 12.

In A. R. Antulay v. R.S. Nayak, it was held that the court could not pass an order or issue a
direction which would be violative of the fundamental rights, thus, it can be said that the
expression ‘state’ includes judiciary also.

It is submitted that the judiciary, though not expressly mentioned in Art. 12, it should be
included so, since the courts are set up by statute and exercise power conferred by law. It is so
suggested that discrimination may be brought about… even (by) judiciary. The courts, like any
other organ of the state, are limited by the mandatory provisions of the Constitution.

SCOPE OF ARTICLE 12
The term “State” has been very widely defined with a view to securing the guarantee of
fundamental rights in respect of all possible institutions. The scope of this definition has been
further expanded by judicial interpretation of the term ‘other authorities’. This expansive
interpretation promotes the expansion of administrative law as more bodies are covered under its
scope. It helps in the expansion of judicial review as many more bodies become subject to the
writ jurisdiction, and it also makes bodies amenable to the restrictions of fundamental rights.
For better understanding the expanded meaning of the term “other authorities” in article 12, it is
necessary to trace the origin and scope of article 12 in the Indian Constitution. Present article 12
was introduced in the Draft Constitution as article 7. The Court quoted with approval the
observation of Dr. Ambedkar in the Constituent Assembly. While initiating a debate on this
article in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar Described the Scope
of this article and the reasons why this article was placed in the Chapter on fundamental rights as
follows:
“The object of the fundamental rights is twofold. First, that every citizen must be in a position to
climb those rights. Secondly, they must be binding upon every authority. I shall presently explain
what the word ‘authority’ means – upon every authority which has got either the power to make
loss or the power to have discretion vested in it. Therefore, it is quite clear that if the
fundamental rights are to be clear, then they must be binding not only upon the Central
Government, they must not only be binding upon the Provincial Government, they must not only
be binding upon the Governments established in the Indian States, they must also be binding
upon District Local Boards Municipalities, even village panchayats and taluk boards, in fact,
every authority which has been created by law and which has got certain power to make laws, to
make rules or make bye-laws.
………………….. There are two ways of doing it. One way is to use a composite phrase such as
‘the State’, as we have done in article 7; or, to keep on repeating every time, the Central
Government, the Provincial Government, the State Government, the Municipality, the Local
Board, the Port Trust, or any other authority. It seems to me not only most cumbersome but
stupid to keep on repeating this phraseology every time we have to make a reference to some
authority. The wisest course is to have this comprehensive phrase and to economise in words.
This definition of State under article 12 of the Constitution of India applies only for the purpose
of provisions mentioned under Part III of the Constitution. So if a body of persons not coming
under the definition but still a writ under article 226 may lie against it on non-constitutional
grounds or on the ground of contravention of any provision of the Constitution outside Part III
that means where such body has some public duty to perform or where its acts are supported by
the State or Public Officials.

Under article 12 the word ‘includes’ indicates that this definition of the ‘State’ is not confined to
a Government Department and the legislature but extends to any administrative action which
may be either statutory or non-statutory, judicial or quasi-judicial. And those actions can be said
to be the State action in case of violation of fundamental rights . Hence in this way the scope of
the State has been widened by interpretation of words mentioned under article 12.

The expression local authorities include a ‘Panchayat’ a ‘Port trust’ or other bodies coming
within the definition of ‘local authority’ in S.3 (31) of the General Clauses Act, 1897.
A local authority is a representative body. Merely because the Housing Board, constituted under
S.3 of Haryana Housing Board Act, 1971, is authority under article 12 and it cannot be treated as
a local authority. So also are Calcutta State Transport Corporation and U.P. Forest Corporation.
The expression other authorities has different dimensions and, thus, must be a liberal
interpretation.
In Concise Oxford English Dictionary the word ‘authority’ has been defined as under:
“1,the power or right to give orders and enforce obedience.2, a person or organization exerting
control in a particular political or administrative sphere.3, the power to influence others based on
recognized knowledge or expertise.”
Broady, there are three different concepts which exist for determining the question which fall
within the expression “other authorities”:
1. The corporations and the societies created by the State for carrying on its trading activities in
terms of article 298 of the Constitution wherefrom the capital infrastructure, initial investment
and financial aid etc. are provided by the State and it also exercises regulation and control
thereover.
2. Bodies created for research and other developmental works which is otherwise a governmental
function but may or may not be a part of the sovereign function.
3. A private body is allowed to discharge public duty or positive obligation of public nature and
furthermore is allowed to perform regulatory and controlling functions and activities which were
otherwise the job of the government.

The rule of ejusdem generis cannot be applied to interpret this expression in as much as there is
no common feature running through the named bodies.

The expression “other authorities” also includes instrumentalities or agencies, of the Government
and Government Departments. But every instrumentality of the Government is not necessarily a
Government Department, The instrumentalities or agencies, even though performing some of the
functions of the State, cannot be equated with a government department and if they have an
independent status distinct from the State e.g. government companies and public undertakings
though for the purpose of enforcing fundamental rights, they could be held to be State.

In determining whether a corporation or a Government Company or a private body is an

instrumentality or agency of the State, the following tests would be applicable:
1. Whether the entire share capital is held by the Government.
2. Whether the corporation enjoys monopoly status conferred by the State.
3. Whether the Functions of the corporation are governmental functions or functions closely
related thereto.
4. If a department of the government has been transferred to the corporation.
5. The volume of financial assistance received from the State .
6. The quantum of State Control.
7. Whether any statutory duties are imposed upon the corporation .
8. The character of the corporation may change with respect to its different functions.

Any private educational institution cannot become the instrumentality of the State just because of
the reason that it received the recognition or affiliation from the State.

Regarding Judiciary it can be said that while the inclusive definition of the State includes
judiciary, in some earlier cases, it was observed that a judicial order could not possibly violate
fundamental right and no remedy under article to can be enforced on the ground that a judicial
order violated a fundamental right.

JUDICIAL ACTIVISM
Judicial activism has no statutory definition. It means the function of the judiciary representing
its active role in promoting justice. It is the assumption of an active role on the part of the
judiciary. In the words of Justice J.S.Verma, Judicial Activism must necessarily mean “the active
process of implementation of the rule of law, essential for the preservation of a functional
democracy”.
The judiciary operates as a mechanism for correction and judicial activism serves as strong
trendsetter to correct as far as possible, malfunctioning in violation of the Constitutional
mandates and to stimulate the State organs to function in the right direction. Balanced judicial
activism is necessary for establishing the rule of law in a welfare state .
In a series of cases like S.P. Gupta v. Union of India , The Supreme Court through public interest
litigation, has liberalized the locus standi and inspired the public spirited citizens to invite
judicial intervention against abuse of power or misuse of power or inaction of the government.
The Apex Court has come to the rescue a grossly under –paid workers , bonded labour, prisoner,
pavement dwellers , under-trial detenues, inmates of protection homes, Victims of Bhopal Gas
disaster and many other cases from time to time.
The Courts through judicial activism are encroaching upon the exclusive domain of the other
instrumentalities because the ultimate goal of the Court is to render justice. It is the primary duty
of the executive to provide a fair and just government. It is not for the Courts to function as an
extended arm of the executive.
Judicial activism is not just a matter of serial affirmation of judicial power over other domains
and instrumentalities of State power; it is as much a narrative of evolution of new constitutional
culture of power.

RECENT IMPORTANT
JUDGEMENTS
In the course of time, the Supreme Court has been expanding the horizon of the term “other
authority” in article 12. A large number of bodies statutory and non-statutory, have been held to
be ‘authorities’ for the purpose of article 12. Even if the entire share capital of a company is subs
cribbed by the government, it cannot yet be treated as a government department. The company
has its own corporate personality distinct from the government. But such a government company
can still be treated as an authority under article 12. Government Companies, such as Bharat Earth
Movers Ltd., Indian Telephone Industries Ltd., in which the government holds 51% share
capital, and which are subject to government conrol have been held to be “other authorities”
under article 12 of the Constitution of India .

In U.P. State Coop. Land Development Bank Ltd. V. Chandra Bhan Dubey , the Court held that,
U.P. State Cooperative land development Bank Ltd. Was a cooperative society but it was under
the control of the State Government and was an extended arm of the government. So it was an
instrumentality of the State. In Biman Kishore Bose v. United India Insurance Co. Ltd. The
Court was of the opinion that a company enjoying the monopoly of carrying on a business under
an Act of Legislature is an authority under article 12. Mysore paper mills, a government
company was held to be an instrumentality of the State Government and therefore decided as an
authority under article 12 .
The expansive interpretation of the expression “other authorities” in article 12 is furnished by the
recent decision of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology . In this case The Supreme Court has overruled Sabhajit Tewary and held that the
Council of Scientific and Industrial Research is an authority under article 12.
In Zee Telefilms Ltd. V. Union of India [46], a five-judges bench of the Supreme Court examined
the question whether BCCI comes under the definition of the State or not. It was contended
before the Court that the BCCI should be treated as “State” because it controlled and regulated
cricketers right guaranted under article 19 (1) (g). Rejecting the contention outright, the Court
held that this right could be claimed only against the State. Article 19(1) (g) applied only when it
was established that the regulating authority in question fell within the scope of ‘State’ under
article 12.
In Punjab Water Supply and Sewerage Board v. Ranjodh Singh the Court held that the Punjab
Water Supply and Sewerage Board was a ‘State’ as per the definition given under the
Constitution of India. The statutory bodies are bound to apply the rules of recruitment mentioned
under statutory rules. Therefore this body is bound to follow the constitutional scheme of
equality.

In the year 2014 the Supreme Court observed in K.K. Saxena v. International Commission on
Irrigation and Drainage (ICID) case that it was not discharging any public duty. ICID is a
private body which has no State funding. Functions are voluntary in nature and no statutory duty
was imposed on that body. Hence it held not to be the ‘State’ or ‘other authority’ as per article 12
of the Constitution.

ARTICLE 13
“Laws 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 Right of Equality.”

Article 13 is the key provision as it gives the teeth to the fundamental rights and makes them
justiciable. The effect of Article 13 is that Fundamental Rights cannot be infringed by the
government either by enacting a law or through administrative action.

EXISTING LAWS INCONSISTENT

WITH THE CONSTITUTION
This clause provides that all “laws in force” at the commencement of the Constitution which
clash with the exercise of the Fundamental Rights, conferred by Part II of the Constitution shall,
to that extent, be void. A pre constitution law, after the commencement of the Constitution, must
conform to the provisions of Part III of the Constitution. However, infringement of a
fundamental right cannot be founded on a remote or speculative ground.

But this does not make the existing laws which are inconsistent with the fundamental rights
void ab initio.The entire Part III of the Constitution including Art. 13(1) is prospective. Hence,
existing laws which are inconsistent with any provision of Part III are rendered void only with
effect from the commencement of the Constitution, which for the first time created the
Fundamental Rights. The inconsistency referred to in Art. 13(1), therefore, does not affect
transactions past and closed before the commencement of the Constitution or the enforcement of
rights and liabilities that had accrued under the ‘inconsistent laws’ before the commencement of
the Constitution.

On the other hand, it does not mean that an unconstitutional procedure laid down be a pre-
Constitution Act is to be followed in respect of ‘pending’ proceedings or in respect of new
proceedings instituted with regard to pre-Constitution rights or liabilities. Just as there is no
vested right in any course of procedure, there is no vested liability in matter of procedure in the
absence of any special provision to the contrary.

But if the proceedings had been completed or become final before the commencement of the
Constitution, nothing in the Fundamental Rights Chapter of the Constitution can operate
retrospectively so as to affect those proceedings. For the same reason, it is not possible to
impeach the validity of that part of the proceedings which had taken place under the inconsistent
law, prior to the commencement of the Constitution.

The effect of Art. 13(1) is not to obliterate the inconsistent law from the statute book for all times
or for all purposes or for all people. The effect is that the inconsistent law cannot, since the
commencement of the Constitution stand in the way of exercise of fundamental rights by persons
who are entitled to those rights under the commencement of the Constitution, as regards persons
who have not been given fundamental rights, e.g., aliens.
DOCTRINE OF ECLIPSE

1. It follows, therefore, that if at any subsequent point of time, the inconsistent provision is
amended so as to remove its inconsistency with the fundamental rights, the amended
provision cannot be challenged on the ground that the provision has become dead at the
commencement of the Constitution and cannot be revived by the amendment. All acts
done under the law since the amendment will be valid notwithstanding the fact of
inconsistency before the amendment. It is known as the doctrine of eclipse.
2. For the same reason, if the Constitution itself is amended subsequently, so as to remove
the repugnancy, the impugned law becomes free from all blemishes from the date when
the amendment of the Constitution takes place.

Although a pre-constitutional law is saved in terms of Art. 372 of the Constitution, challenge to
its validity on the touchstone of Arts. 14, 15 and 19 of the Constitution is permissible in
law. Validity of a statute may be subject to changes occurring in societal conditions in domestic
as well as in international arena with time.

Post-Constitution Laws, which are

inconsistent, shall be void ab initio
Art. 13(2) provides that any law made by any legislature or other authority after the
commencement of the Constitution, which contravenes any of the fundamental rights included in
Part III of the Constitution shall, to the extend of the contravention, be void.

As distinguished from Cl. (1), Cl. (2) makes the inconsistent laws void ab initioand even
convictions made under such unconstitutional laws shall have to be set aside. Anything done
under the unconstitutional law, whether closed, completed or inchoat, will be wholly illegal and
the relief in one shape or another has to be given to the person affected by such unconstitutional
law. Nor it is revived by any subsequent event.

This does not mean that the offending law is wiped out from the statute book altogether. It
remains in operation as regards to persons who are not entitled to the fundamental rights in
question (e.g., a non-citizen in respect of a right guaranteed by Art. 19). Nor does Cl. (2)
authorize the Courts to interfere with the passing of a bill on the ground that it would, when
enacted, be void for contravention of the Constitution. The jurisdiction of the Court arises when
the bill is enacted into law.

DOCTRINE OF SEVERABILITY
It is not the whole Act which would be held invalid by being inconsistent with Part III of the
Constitution but only such provisions of it which are violative of the fundamental rights,
provided that the part which violates the fundamental rights is separable from that which does
not isolate them. But if the valid portion is so closely mixed up with invalid portion that it cannot
be separated without leaving an incomplete or more or less mingled remainder the court will
declare the entire Act void. This process is known as doctrine of severability or reparability.

The Supreme Court considered this doctrine in A.K. Gopalan v. State of Madras, and held that
the preventive detention minus Section 14 was valid as the omission of Section 14 from the Act
will not change the nature and object of the Act and therefore the rest of the Act will remain
valid and effective. The doctrine was applied in D.S. Nakara v. Union of India, where the Act
remained valid while the invalid portion of it was declared invalid because it was severable from
the rest of the Act. In State of Bombay v. F.N. Balsara, it was held that the provisions of the
Bombay Prohibition Act, 1949 which were declared as void did not affect the validity of the
entire Act and therefore there was no necessity for declaring the entire statute as invalid.
The doctrine of severability has been elaborately considered by the Supreme Court and the
following rules regarding the question of severability has been laid down:
(1) The intention of the legislature is the determining factor in determining whether the valid
parts of a statute are severable from the invalid parts.
(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated
from the other, then the invalidity of a portion must result in the invalidity of the Act in its
entirety. On the other hand, if they are so distinct and separate that after striking out what is
invalid what remains is itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest had become unenforceable.
(3) Even when the provisions which are valid, are distinct and separate from those which are
invalid if they form part of a single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.
(4) Likewise when the valid and invalid parts of a Statute are independent and do not form part
of a Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of legislature, then also it will be
rejected in its entirety.
(5) The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the substance of
the matter that is material and that has to be ascertained on an examination of the Act as a whole
and of the setting of the relevant provisions therein.
(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be struck down
as void as otherwise it will amount to judicial legislation.
(7) In determining the legislative intent on the question of severability, it will be legitimate to
take into account the history of legislation, its object, the title and preamble of it.

DEFINITION OF LAW
Art. 13(3)(a) defines ‘law’ very widely by an inclusive definition.[xcix] It does not expressly
include a law enacted by the legislature, for such an enactment is obviously law. The definition
of law includes:

(i) an Ordinance, because it is made in the exercise of the legislative powers of the executive;

(ii) an order, bye-law, rule, regulation and notification having the force of law because ordinarily
they fall in the category of subordinate delegated legislation and are not enacted by the
legislature;

(iii) custom or usage having the force of law because they are not enacted law at all. This
extended definition appears to have been given to ‘law’ in order to forestall a possible contention
that law can only mean law enacted by the legislature.

CONCLUSION
The provisions of Part III of the Constitution should not be treated as mere legal precepts. They
form part of the conscience of the Constitution. It can safely be assumed that the framers
intended the provisions to be instrumental in spreading a new constitutional culture. If we
exclude the rapidly expanding private sector from the enforcement of these rights, this
constitutional culture will have only a limited and truncated domain for its spread. After having
argued for the enforcement of fundamental rights, it remains to sort out an incidental problem. It
can be persuasively argued that the gist of the relevant fundamental rights can be enforced
against the private sector by ordinary legislation instead of bringing the private sector directly
within the purview of the Constitution. This argument can further be reinforced with the
assertion that the suggestions made in the research paper would only result in further flooding
the Supreme Court and high courts with writ petitions, thereby making the court system almost
unworkable.
State through Constitution secures fundamental rights, help achieve ideals given in directive
principles and expect citizens to perform certain fundamental duties. All these cane only be done
by the State, through the State and for the State respectively. Article 12 of the Constitution of
India is of greatest importance as it defines what is State. Further, Article 13 of the Constitution
of India specifies which acts of the State are regulated by the Constitution so that State does not
abuse the powers given to it by the Constitution.