Maansarovar Law Centre CLASS NOTES

ARTICLE 12 – DEFINITION OF STATE

Article 12 provides that in Part III, the term ‘State’ includes
1. The Government and Parliament of India
2. The government and Parliament of each State
3. All local or other authorities within the territory of India or under the
control of Government of India.

MEANING OF ‘LOCAL AUTHORITIES’

It refers to other authorities like municipalities, district boards, panchayats, mining
settlement boards.

INTERPRETATION OF ‘OTHER AUTHORITIES’

EARLIER TREND PRESENT TREND

1. Restrictive/narrow approach 1. Broader approach

2. State includes only the 2. State includes anybody which is an agency or

authorities created by the instrumentality of government
Constitution or statute
TEST- Whether a body is an agency or instrumentality as
laid down in AJAY HASIA V. KHALID MUJIB
a) State chiefly contributed to the financial resources
b) Deep and pervasive state control e.g. appointment and
removal of members
c) Functions of body are of public importance etc.

LOGIC – With the changing role of state from merely

being a police state to welfare state, it was necessary to
expand the scope of the expression ‘authorities’ in Article
12 so as to include all those bodies which are, though not
created by the Constitution or by the statute are acting as
agencies or instrumentalities of government. In modern
times, a government has to perform manifold functions.
For this purpose it has to employ various agencies to
perform these functions.

EXAMPLES/ILLUSTRATIONS

WHAT IS STATE WHAT IS NOT STATE

ONGC, LIC, SAIL, FCI, Indian Oil Corporation, • BCCI (Zee Telefilms Ltd. v. Union of
judiciary etc. India)
• NCERT (C.M. Khanna v. NCERT)

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ARTICLE 13
Article 13(1) declares that all laws in force in India immediately before the
commencement of the Constitution shall be void to the extent to which they are
inconsistent with the provisions of Part III of the Constitution.

Article 13(2) provides that the State shall not make any law which takes away or
abridges the rights conferred by Part III and any law made in contravention of
fundamental rights shall, to the extent of contravention, be void.

Ques. Article 13 applies to

(a) Pre-constitutional laws
(b) Post-constitutional laws
(c) Both (a) and (b)
(d) None of the above

PRE-CONSTITUTIONAL LAWS POST-CONSTITUTIONAL LAWS

1. Pre-constitutional laws were valid 1. Post-constitutional laws are void

when initially made but later from the very inception i.e. from
became void when the the time they were made.
Constitution came into force.

2. Pre-constitutional laws are not 2. Post-constitutional laws are void

void ab initio rather they later ab initio. They were never valid.
become void.

DOCTRINE OF ECLIPSE
1. It is based on the principle that a law which violates fundamental rights is not
nullity or voidab initio but becomes only unenforceable i.e. remains in
moribund condition. It is over-shadowed or eclipsed by the fundamental rights
and becomes dormant.
2. The doctrine of eclipse applies to pre-constitutional laws and even to post-
constitutional laws.

DOCTRINE OF SEVERABILITY
1. According to the doctrine of severability, if any provision of a particular law is
violative of fundamental rights and that provision can be separated from rest
of law, then that particular provision will be separated, severed and will be
declared unconstitutional. However, the rest of the law will continue to remain
unaffected and valid.
2. However, if entire law is against fundamental rights, then the whole of it will
be declared to be unconstitutional.

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DOCTRINE OF WAIVER
The fundamental rights have been embodied in the Constitution not merely for the
benefit of a particular individual but also as a matter of constitutional policy and for
public good. Hence, it is well settled that the doctrine of waiver or acquiescence
cannot be applied to fundamental rights.

DOCTRINE OF JUDICIAL REVIEW

1. MEANING It means the power of the judiciary to check or examine the

laws made by the Parliament.

2. PURPOSE To ensure that such laws do not violate the fundamental

rights under Part III of the Constitution.

3. POWER GIVEN a) Supreme Court – Article 32

TO b) High Court – Article 226

4. POWER GIVEN Article 13

BY

5. CONCEPT USA
PICKED FROM

6. PART OF In the case of Minerva Mills v. Union of India 1980, it was

BASIC held that judicial review is a part of basic structure of the
STRUCTURE Constitution.

ARTICLE 13 CLAUSE (3)

Article 13(3) gives the term ‘law’ a very broad connotation and includes any
ordinance, by-law, rule, regulation, notification, custom or usage having the force
of law.

DOES THE WORD ‘LAW’ IN ARTICLE 13 INCLUDE

CONSTITUTIONAL AMENDMENT?
1. SHANKARI PRASAD V. UNION OF INDIA 1951
This question arose for the first time in this case in which it was held that the word
‘law’ in Article 13 means the statutes made in exercise of ordinary legislative
procedure. It does not include constitutional amendments made under the special
procedure of Article 368. Hence, the parliament can take away the fundamental
rights by constitutional amendment.

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2. SAJJAN SINGH V. STATE OF RAJASTHAN 1965

The decision in Shankari Prasad’s case was upheld by the Supreme Court.

3. GOLAK NATH V. STATE OF PUNJAB 1967

The Supreme Court overruled its earlier decisions and held that fundamental rights
are sacrosanct and have been given a ‘transcendental and immutable’ position, and
hence, parliament has no power to amend part III of the constitution so as to take
away or abridge the fundamental rights. The word ‘law’ in Article 13 includes the
word amendment. Had the intention of Constitution makers be to exclude the
amendment from purview of Article 13, they would have explicitly mentioned it.
Moreover, Article 13(3) has been designed in a very broad fashion. In absence of
any exception for amendment, it is indeed included in Article 13 and a constitutional
amendment cannot abridge the fundamental rights of people.

4. 24TH AMENDMENT ACT 1971

The Parliament reacted to the Supreme Court judgment in the Golak Nath case by
enacting the 24thAmendmentwhich circumvented the decision. The amendment
added Clause (4) in Article 13 which expressly declared that the word ‘law’ in
Article 13 does not include constitutional amendment.

5. KESHAVANAND BHARTI V. STATE OF KERALA 1973

In this case, the constitutional validity of 24th Amendment was challenged. The
Supreme Court overruled its judgment in the Golak Nath Case and it upheld that
validity of the 24th Amendment and stated that the parliament is empowered to
abridge or take away any of the fundamental right. At the same time, the Supreme
Court fulfilled its role as the guardian of fundamental rights of citizens and it
formulated the classical‘Doctrine of Basic Structure’ of the Constitution.
According to it, the parliament can amend fundamental rights but it cannot touch
those fundamental rights which form a part of the ‘basic structure’ of the
constitution.
Basic structure denotes the basic pillars upon which the Constitution stands. This
concept was picked up from the Weilmer Constitution (Germany) to guarantee basic
rights to all citizens and to prevent its encroachment by the state.

CONCLUSION – The net result of Keshavanand Bharti’s judgment was that it

over-ruled Golaknath Case and it upheld Shankari Prasad subject to the doctrine of
basic structure.

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