PART – II

FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION

Origin and development of Fundamental Rights :

 In 1215, the English people extracted an assurance from their king, John, for the respect of their liberty. The
written document of this is said to be the Magna Carta, which served as evidence for their success. Later, in 1689, the
Bill of Rights was written consolidating all the important rights and liberties.

 In 1789, the France, introduced the Declaration of Rights of Man and the Citizen, declaring the natural, inalienable
and sacred rights of Man.

 The Americans were the first to incorporated the Bill of Rights in the constitution. The Indian Constitution framers
took inspiration from the Americans and included the Fundamental Rights in the constitution.

Aim of declaring Fundamental Rights in Indian Constitution :

 These fundamental rights should be regarded as inviolable under all circumstances and the shifting majority should not
interfere with these Fundamental rights.

Need for the Fundamental Rights :

 The danger of encroachment on citizen’s liberties is particularly great in Parliamentary system, where the Government
is formed by the leaders of the majority.

 Thus, to protect these fundamental rights – freedom, liberty, equality, justice, etc., - becomes possible only when
these are made a part of the Constitution such that it can’t be violated at any condition. The negotiation of these
rights may keep the moral and spiritual life of the people to be stunted and his potentialities undeveloped.

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  In the historical judgement of Menaka Gandhi v. Union of India, Justice Bhagwati, has mentioned that the
fundamental rights represent the basic values cherished by the people of India in the Vedic periods which maintain
the dignity of humans and create situations to develop their personalities to the fullest.

Absolute and unrestricted individual rights – do not exist :

 Absolute and unrestricted rights and freedom for the individuals do not exist in any modern state. Because this may
lead to jeopardizing the liberties of one individual by the other. It is very obvious that complete and absolute rights in
the hands of people without a social control would lead to chaos, ruin and an anarchy.

 On the other hand, if the state has complete control over the public, it would become tyranny. Thus, reasonable
restrictions are implied on both sides.

Salient features of Fundamental Rights :

1. Integral part of the Constitution: Fundamental Rights have been made an integral part of the Constitution and hence cannot
be taken away by ordinary legislation. Any law passed by any legislature in the country would be declared null and void if it is
derogatory to the rights guaranteed by the Constitution.

2. Comprehensive and detailed: The rights enumerated in the Part III of the Constitution are very elaborate. Each Article
has been described with its scope and limitations.

3. Lack of social and Economic Rights: The Constitution guarantees only civil rights and freedoms. Rights like Rights to work ,
Right to Health, and Right to Social Security have not been included in the Fundamental Rights.

4. Rights are qualified: The fundamental rights of the people are not absolute except the right against untouchability. They
are qualified with limitations and reasonable restrictions in the collective interest of the society. While describing the scope
of each right, the Constitution also describes its limitations. These have been laid down for protecting public health, public
order, morality and security of India. Some exceptions are also provided to Fundamental Rights through their non-
applicability to members of security and law and order related forces, during martial law and, for certain laws necessary for
socio-economic reforms.

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5. Enforceability of Rights: Fundamental Rights have been made Justiciable. Justiciable rights means if any of these rights
are violated by the government or anyone else, the individual has the right to approach the Supreme Court or High Courts for
the protection and enforcement of his/her Fundamental Rights. Thus, the Constitution not only grants but also guarantees
these rights. There are elaborate instruments to protect these rights, such as Right to Constitutional remedy, Public
Interest Litigation, Human Rights Commissions.

6. Fundamental Rights are amendable: Fundamental Rights are not sacrosanct and permanent. Parliament has the power to
amend any part of the Constitution including Fundamental Rights. The Fundamental Rights, despite having inviolable nature,
can be amended by the Parliament, subject to the ‘basic structure’ of the Constitution. The Parliament has, in practice,
exercised this power on several occasions.

7. Provision for the Suspension of Rights: The Constitution provides for suspension of all or any of the Fundamental Rights
during an emergency. However, such a suspension automatically ends when the emergency ceases or when the President
withdraws it.

8. Constitutional superiority of Fundamental Rights: The Fundamental Rights of the citizens are superior to ordinary laws and
the Directive Principals of State when the President withdraws it.

9. Special Rights for the minorities: The Fundamental Rights guarantee some special rights to the minorities of various kinds.
This is apart from the guarantee of the secular nature of the Constitution. Cultural and educational rights have been granted
to them. It abolishes untouchability and makes it a crime. It has also granted special protections to women, children and the
weaker sections of society.

10. No natural rights: The chapter on Fundamental Rights is not based on theory of ‘natural rights’. Natural rights are said to
belong to man by ‘nature’ and are inalienable from him. It is claimed that man possessed these rights even before the
(concept of) State came into existence. Accordingly, natural rights do not owe their existence to their enumeration in the
constitution. The Constitution of India does not give any recognition to natural or un-enumerated rights. People of India are
guaranteed only those rights which are mentioned in Part III of the Constitution.

11. Right to Property not a Fundamental Rights: Right to property which is a feature of particularly liberal democracies is not
guaranteed by the Constitution of India. Actually, the original Constitution as in 1949 granted to the citizens the fundamental

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right to property. However, because of the hindrances posed by this rights in the way of implementation of some socio-
economic reforms, right to property was deleted from the list of Fundamental Rights. It was made a legal right under Article
300A. Thus, now right to property is a legal right and not a Fundamental Right of the people.

Exceptions to Fundamental Rights :

By subsequent amendments, the area of Fundamental Rights has been narrowed down by introducing certain exceptions
to the operation of Fundamental Rights, namely, Articles 31A, 31B, 31C, 31D.

 Of these, Arts. 31A, 31C are exceptions to the fundamental right enumerated in Articles 14 and 19; this means that
any law falling under the ambit of Art. 31A (e.g., a law for agrarian reform), or Art. 31C (a law for the implementation
of any of the Directive Principles contained in Part IV of the Constitution), cannot be invalidated by any Court on the
ground that it contravenes any of the fundamental rights guaranteed by Art. 14 (equality before law); Art. 19
(freedom of expression, assembly, etc,).

 Art. 31B, however, offers almost complete exception to all the fundamental rights enumerated in Part III. If any
enactment is included in the 9th Schedule, which is to be read along with Art. 31B, then such enactment shall be
immune from constitutional invalidity on the ground of contravention of any of the fundamental rights. But shall be
open to challenge on the ground of damage to the basic structure of the Constitution subsequent to 24-4-1973 (ie. the
date of decision in Kesavananda’s case).’

Amendment of Fundamental Rights :

 The question of whether an amendment to the constitution can be considered as a ‘law’ within the meaning of Article
13(2) was considered by the supreme court of India in the case of Shankari Prasad v. Union of India. Article 13(2)
states that any law made violative of the fundamental rights will be declared to be void. The court held that, the term
‘law’ under Art 13(2) doesn’t cover constitutional amendments under Art 368. On this basis, the insertion of Articles
31A and 31B were held valid.

 Later, in Golaknath vs. state of Punjab, the Supreme court overruled the earlier decisions and held that while amending
the fundamental rights under Art 368, it comes under the definition of ‘law’ under Art 13(2) and no such amendment

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 could take away the fundamental rights guaranteed under the constitution. In order to nullify the effect of the
Golaknath case, the Parliament sought to insert Art 13(4) in the constitution, by the 24 th constitutional amendment
act, 1971,

 This 24th amendment was challenged in the case of Keshavananda Bharti vs. State of Kerala. The court held that
though the Parliament by overruling the earlier judgement in the Golaknath case, it has the power to amend the
fundamental rights such that the basic structure of the Constitution doesn’t losses its identity.

Classification of Indian Fundamental Rights!

The Constitution classified the Fundamental Rights under seven groups as follows:

(i) Right to Equality;

(ii) Right to Freedom;

(iii) Right against Exploitation:

(iv) Right to Freedom of Religion;

(v) Cultural and Educational Rights;

(vi) Right to Property; and

(vii) Right to Constitutional Remedies.

Of these, the Right to Property has been eliminated by the 44th Amendment Act, so that only six freedoms now remain, in
Article 19(1).

Classification of Fundamental Rights Based on the Citizenship Status as an Indian Citizen:

Fundamental Rights that are granted only to citizens are—(a) Protection from discrimination on grounds of religion, race,
caste, sex or place of birth (Article 15); (b) Equality of opportunity in matters of public employment (Article 16); (c) Freedom
of speech, assembly, association, movement, residence and profession (Article 19) and (d) Cultural and educational rights of
minorities (Article 30).
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(ii) Some Fundamental Rights are available to all people in India—citizens or foreigners (a) Equality before the law and equal
protection of the people by law (Article 14); (b) Protection in respect of conviction against ex post facto laws, double
punishment and self-incrimination (Article 20); (c) Protection of life and personal liberty against action without authority of
law (Article 21); (d) Right against exploitation (Article 23); (e) Freedom of religion (Article 25); (f) Freedom for the payment
of taxes for promotion of any particular religion (Article 27); (g) Freedom to attend any religious program or worship and
study in State educational institutions (Article 28).

Negative and Positive Rights:

Some of the Fundamental Rights are negatively worded, as prohibitions to the State (e.g., Article 14 says “The State shall not
deny to any person equality before the law…”). There are others, which positively confer some benefits upon the individual
(e.g., the rights to religious freedom, and the cultural and educational rights).

Classification of Fundamental Rights based on Extent of Limitation:

A classification can also be made from the standpoint of the extent of limitation imposed by the different Fundamental
Rights upon legislative power. On the one hand, we have some Fundamental Rights, such as under Article 21, which are
addressed against the Executive but impose no limitation upon the Legislature at all.

On the other hand, some Rights are intended as absolute limitations upon the legislative power, such as Article 15, 17, 18, 20
and 24. In between are the rights given in Article 19 upon which reasonable restrictions may be imposed by the Legislature In
public interest.

ARTICLE 12 :

Article 12 of the Indian Constitution states that,

“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 or other authorities within the territory of India
or under the control of the Government of India.”

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In other words, for the purposes of Part III of the constitution, the state comprises of the following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union

2. Government and Legislature of each State i.e the Executive and Legislature of the various States of India

3. All local or other authorities within the territory of India

4. All local and other authorities who are under the control of the Government of India

Key terms discussed under the article

1. Government (Union and state)

2. Parliament and state legislature

3. Local authorities

4. Other authorities

5. Territory of India

6. Control of the government of India

The above-mentioned terms are better explained in the following section along with relevant cases.

Government (Union and state), Parliament and State Legislature

 Parliament: The parliament comprises of the President of India, the lower house of the parliament that is the Lok
Sabha as well as the upper house of the Parliament, that is the Rajya Sabha.

 Executive: It is that organ which implements the laws passed by the legislature and the policies of the government.
The rise of the welfare state has tremendously increased the functions of the state, and in reality, of the executive.
In common usage, people tend to identify the executive with the government. In contemporary times, there has taken
place

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A big increase in the power and role of the executive in every state. The executive includes the President, Governor, Cabinet
Ministers, Police, bureaucrats, etc.

 Legislature: The legislature is that organ of the government which enacts the laws of the government. It is the
agency which has the responsibility to formulate the will of the state and vest it with legal authority and force. In
simple words, the legislature is that organ of the government which formulates laws. Legislature enjoys a very special
and important in every democratic state. It is the assembly of the elected representatives of the people and
represents national public opinion and power of the people.

 Government: The law-making or legislative branch and administrative or executive branch and law enforcement or
judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the
legislative branch. Indian President is the head of the state and exercises his or her power directly or through
officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal and family courts at the district
level form the Judiciary.

 State Legislature: The legislative body at the state level is the State Legislature. It comprises of the state
legislative assembly and the state legislative council.

Local Authorities

Before understanding what a local authority is, it is important to define Authorities. According to Webster’s Dictionary;
“Authority” means a person or body exercising power to command. When read under Article 12, the word authority means the
power to make laws (or orders, regulations, bye-laws, notification etc.) which have the force of law. It also includes the power
to enforce those laws

Local Authority: As per Section 3(31) 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.”

The term Local authority includes the following:

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 1. Local government: According to Entry 5 of the List II of VII Schedule ‘local government’ includes a municipal
corporation, improvement trust, district boards, mining settlement authorities and other local authorities for the
purpose of local self-government or village administration.

2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the meaning of the term local
authority, village panchayat is also included.

Test to determine Local Authorities

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be characterized as a ‘local authority’ the
authority concerned must;

1. Have a separate legal existence as a corporate body

2. Not be a mere government agency but must be legally an independent entity

3. Function in a defined area

4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area

5. Enjoy a certain degree of autonomy (complete or partial)

6. Be entrusted by statute with such governmental functions and duties as are usually entrusted to locally (like health,
education, water, town planning, markets, transportation, etc.)

7. Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives by levying taxes,
rates, charges or fees

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.

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The functions of a government can be performed either the governmental departments and officials or through autonomous
bodies which exist outside the departmental structure. Such autonomous bodies may include companies, corporations etc.

So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several
judgements as per the facts and circumstances of different cases.

In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like
nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental
or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities.

In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope and held that the ‘ ejusdem
generis’ rule could not be resorted to the in interpreting ‘other authorities’. The bodies named under Article 12 have no
common genus running through them and they cannot be placed in one single category on any rational basis.

Lastly, in Rajasthan Electricity Board 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. Such statutory authority need not
be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power
conferred on the body is of a commercial nature or not.

The breakthrough however, came with R.D Shetty v. Airport Authority of India which gave us the 5 Point test as
propounded by Justice P.N Bhagwati. This is a test to determine whether a body is an agency or instrumentality of the state
and goes as follows
1. Financial resources of the State is the Chief funding source i.e. the entire share capital is held by the government.
2. Deep and pervasive control of the State
3. Functional character being Governmental in its essence, meaning thereby that its functions have a public importance or are
of a governmental character
4. A department of Government transferred to a corporation
5. Enjoys Monopoly status which is State conferred or protected by it.

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This was elucidated with the statement that the test is only illustrative and not conclusive in its nature and is to be
approached with great care and caution.

Territory of India

Article 1(3) of the Constitution of India states that;

“The territory of India shall comprise- (a) the territories of the States;(b) the Union territories specified in the First
Schedule; and (c) such other territories as may be acquired.”

In the case of Masthan Sahib v. Chief Commissioner, the court held that the territory of India for the purposes of Article
12 means the territory of India as defined in Article 1(3).

Control of the government of India

Under Article 12, the control of the Government does not necessarily mean that the body must be under the absolute
direction of the government. It merely means that the government must have some form of control over the functioning of
the body. Just because a body is a statutory body, does not mean that it is ‘State’. Both statutory, as well as non-statutory
bodies, can be considered as a ‘State’ if they get financial resources from the government and the government exercises a
deep pervasive control over it.

For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but does not include NCERT as
neither is it substantially financed by the government nor is the government’s control pervasive.

The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls within them, then it must be considered
to be a State within the meaning of Article 12. It was discussed in the case that– “ whether in the light of the cumulative
facts as established, the body is financially, functionally and administratively dominated by or under the control of
Government. Such control must be particular to the body in question and must be pervasive.

Whether State includes Judiciary?

Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial authorities the power to
pronounce decisions which may be contravening to the Fundamental Rights of an individual. If it was taken into the head of

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‘State’, then as per the article, it would be by the obligation that the fundamental rights of the citizens should not be
violated. Accordingly, the judgements pronounced by the courts cannot be challenged on the ground that they violate
fundamental rights of a person. On the other hand, it has been observed that orders passed by the courts in their
administrative capacity (including by the Supreme Court) have regularly been challenged as being violative of fundamental
rights.

The answer to this question lies in the distinction between the judicial and non-judicial functions of the courts. When the
courts perform their non-judicial functions, they fall within the definition of the ‘State’. When the courts perform their
judicial functions, they would not fall within the scope of the ‘State’.

So, it can be noted that the judicial decision of a court cannot be challenged as being violative of fundamental rights. But,
an administrative decision or a rule made by the judiciary can be challenged as being violative of fundamental rights, if that
be supported by facts. This is because of the distinction between the judicial and non-judicial functions of the courts.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, a 9-judge bench of the Supreme Court
held that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him
for adjudication cannot affect the fundamental rights of the citizens since what the judicial decision purports to do is to
decide the controversy between the parties brought before the court and nothing more. Therefore, such a judicial decision
cannot be challenged under Article 13.

Whether BCCI is a State or not?

Due to this question surfacing frequently in LLB Exams, it has to be dealt with separately. The relevant Judgement in this
regard is Zee Telefilms v. Union Of India AIR 2005 SC 2677 as BCCI is not created by a statute, not dominated by
government either financially, functionally or administratively. Hence, it cannot be called a State as under Article 12 of The
Constitution.

Whether unaided minority school comes under the definition of state ?

In the absence of statuary provision or the administrative control by the government, the unaided minority schools cannot
become a state. Therefore, teachers working in unaided minority school cannot claim equal payment of salary as being paid for
teachers working in recognized private schools.

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 Whether private universities come under the definition of state ?

Private University —S.R.M. University Madras, declared "Deemed University’ by the Central Government under Section 3 of
the UGC Act, the Management of which was in the private trust was held to be an authority provided under Article 12 of the
Constitution and amenable to the writ jurisdiction because :-

(1) it imparted education in higher studies to the students at large.

(2) it discharged public functions by way of imparting education

(3) it was notified as a deemed university under Section 3 of the UGC Act.

(4) being a deemed university by the Central Government under Section 3 of the a UGC Act, all the provisions of the UGC Act
were made applicable to it which, inter alia, provided for effective discharge of public function, namely, education for benefit
of public.

(5) Once it was declared as "deemed university” whose all functions and activities were governed by the UGC Act, like other
universities, it was “other authority” within the meaning of Article 12 of the Constitution.

(6) Once it was held to be an authority as provided in Article 12 then as a necessary consequence, it was amenable to writ
jurisdiction of High Court under Article 226 of the Constitution.

Ruling of courts under Article 12 :

YEAR CASE LAW NAME RULING REASON

1954 University of Madras vs. Other authorities include only authorities State includes only authorities that involve in
Shantha Bai of like nature – ejusdem generis . so, exercising the governmental or sovereign functions.
university not considered as state
1962 Ujjammbai v. state of UP Overruled the Madras high court The named bodies which under the definition of
decision on ejusdem generis. state as per Art 12 are, legislature and governments
of the state and the union and local authorities.
These don’t have a common genus nor can be placed
under a single group based on a criterion. Hence,

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 authorities of similar character can’t be accepted.
1967 Electricity board Rajasthan electricity board comes under The word other authorities should include
Rajasthan v. Mohan Lal the definition of state authorities created under a statute whether, they
perform a governmental or sovereign function, or
not.
1968 Umesh v. V N Singh The Patna University comes under state Based on Rajasthan Electricity Board case
1975 Sukhdev Singh v. The Oil and Natural Gas Commission, Life Based on Rajasthan Electricity Board case
Bhagatram Insurance Corporation and Industrial
Finance Corporation are state
1979 Ramana Dayaram Shetty The test for finding the agency or
v. the International instrumentality of government. (Refer pg.
Airport Authority of no. 10)
India
1981 Som Prakash v. Union of The government company, Bharat The expression ‘other authorities’ includes all the
India Petroleum Corporation comes under state statutory or constitutional authorities who have
powers for the purpose of carrying out commercial
activities.
1980 UP Warehousing The UP Warehousing Corporation comes Made under statute, owned and governed by the
Corporation v. Vijai Narain under the definition of state government
1981 Ajai Hasia v. Khalid Mujib A society registered under the Societies Its composition determined by the representatives
Registration Act, 1898, is an agency or of the govt. The laws made by the society needs
instrumentality of the state state and central government’s approval. It is
controlled by the government. The government have
power to appoint and remove the members of the
society.
1984 Manmohan Singh Jaitla v. Aided school which receives 90% grant Based on Aja Hasia’s case
Commissioner, Union from govt. is a state
territory of Chandigarh
1993 SM Ilyas v. ICAR Indian council of agriculture research in Justice Bhagwati’s test
a state

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1987 Mehta v. Union of India The question whether private corporation
come under the definition of state was
stated before the court but the court
haven’t decided it.
1988 Tekraj Vasandi v. Union of The institute of constitutional and It is a voluntary organization. Its object is not
India parliamentary studies, which was related to government business. No deep and
registered under the Societies pervasive control of the govt., though minister
Registration Act, 1860, is not a state exercises his authority in the matter of making
grants.
1990 Sri kona seema The cooperative bank under the AP The bank main object was to raise funds to finance
cooperative central bank Cooperative Societies Act is not a state its members. It is not of public importance and not
ltd. V. N. Seetharama closely related to governmental functions.
Raju
2017 M/s Pearson drums and RBI is held to be a state under article 12 The work of the bank is of public nature.
barrels pvt. Ltd. V. the
general manager,
consumer education and
protective cell of RBI
1992 Chandra Mohan Kanna v. NCERT is not a state Tekraj Vasanji v. Union of India
NCERT It is an autonomous body. Its main object is to assist
and advice the ministry of education and social
welfare. Not a government function.
2005 Pradeep Kumar Biswas v. CSIR is a state The government of India has a dominant role in the
Indian Institute of governing body of CSIR. Except the ex-officio
Chemical Biology members, the rest are directly nominated by the
President. Prime minister is the ex-officio president.
The by-laws of CSIR, can be amended or repealed by
the governing body only under the sanction of the
Indian govt.
2003 G. Bassi Reddy v. ICRI is not a state Non-profit research and training center, which

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 International Crops serves for many countries across the world
Research Instt.
2003 General Manager Kisan The cooperative sugar mill is not a state It has 50% of share from UP govt. and the rest is
Sahkari Chini Mills Ltd. v. self-generated finances. Nominee of state is 1/3rd
Satrughan Nishad whereas non-government nominees are dominant with
2/3rd. . the state makes to direction for the mill.
2007 Governor of Delhi v. k. SCERT is not a state It is an autonomous body. It has its own control over
sodhi administration, finance and functions.
( Administration, finance and functions must be
under the control of govt. to come under state )

List of ‘other authorities’ coming under Art. 12:

There is no common feature running through the various bodies, which have been held to be covered by the expression ‘other
authorities’.

The expression refers to –

1. Instrumentalities or agencies of the Government and Government Departments. But every instrumentality of
Government is not necessarily a ‘Governmental Department.

2. Every type of public authority, exercising statutory powers, whether such powers are governmental or quasi-
governmental or non-governmental, and whether such authority is under the control of government or not, and even
though it may be engaged in carrying out some activities in nature of trade or commerce, e.g., A board, a
University, the Chief Justice of High Court, having the power to issue rules, bye-laws or regulations having the force
of law or the power to make statutory appointments; a public corporation, a government undertaking. An authority set
under a statute for the purpose of administering a law enacted by the legislature, including those vested with a duty
to make decisions in order to implement them.

3. A private body or a company,

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 4. Society registered under the Societies Registration Act.

5. Corporation set up under the State Financial Corporation Act, 1951.

But a non-statutory body, exercising no statutory powers is not a ‘State’, e.g.,

1. A company.

2. Private bodies having no statutory power, not being supported by a state act.

3. A society registered under the Societies Registration Act, unless it can be held that the society was an
instrumentality or agency of the State, or exercises statutory powers to make rules, bye-laws or regulations having
statutory force.

4. An autonomous body, which is controlled by the Government only as to the proper utilization of its financial grant.

Even a private body or a corporation or an aided private school may however, be included within the definition of ‘State’ if it
acts as an ‘agency’ of the Government.

Article 13 Of The Constitution Of India

Article 13 of the Indian Constitution States that:

“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

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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

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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 initio and even convictions made under such
unconstitutional laws shall have to be set aside. Anything done under the unconstitutional law, whether closed, completed or

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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

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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.

The expression ‘law’ which is used in Article 13

The expression ‘law’ which is used in Article 13 has been given a wider connotation so as to include any ordinance, order, bye-
laws, rule, regulation, notification, custom or usage having in the territory of India the force of law. This means that not only
a piece of legislation but any of the things mentioned here can be challenged as infringing a Fundamental Right.

It is clear from the wordings of clause (3)(a) of Article 13 of the Constitution that it includes both the law made by
legislature as well as those orders or notification which abridges or takes away any of the Fundamental rights given in Part Ill
of the Constitution would be void. According, inter alia the Following have been held to be ‘law’ under Article 13, the validity
of which can be tested on the touchstone of Fundamental Right:

1.a resolution passed by a State Government under Fundamental Rule 44 of the State

2.a government notification under the Commissions of Inquiry Act setting up a commission of inquiry

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3.A notification or an order under a statute

[Link] administrative order, but administrative instruction is not law within the meaning of Article 13

5. A custom or usage

6. Bye-laws of municipal or a statutory body

[Link] made by a statutory corporation life the Life Insurance Corporation.

The validity of the above can be questioned under the Fundamental Rights. The co-operative society frames any bye-laws
under the Cooperative Society Act then it does not fall within the purview of Article 13. Parliament, while making an Act
cannot be deemed to have into consideration an earlier law Found to be in contravention of Article 13. Such a law may not be
said to be invalid but the order under it might be challenged on the ground of being inconsistent with Fundamental rights
because one cannot presume that law authorizes anything that is unconstitutional.

One point needs to be emphasized. A restriction on a Fundamental Right can be imposed only through a statute, statutory rule
or regulation. A fundamental right cannot be put under restraint merely by an administrative direction not having the force of
law.

Applicability of Article 13 to law for amendment of Constitution:

Clause (4) was inserted by the Constitution (24th Amendment) Act, 1971, with effect from 5-11-1971, to override the view
taken by Subha Rao, C.J., for the majority, in Golak Nath v. State of Punjab, that a Constitution Amendment Act, passed
according to Art. 368, is a ‘law’ within the meaning of Art. 13 and would, accordingly, be void if it contravenes a fundamental
right. This amendment was declared void in Minerva Mill’s Case.

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.

OLGA TELLIS V BOMBAY MUNICIPAL CORPORATION

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Some pavement dwellers took an undertaking to allow the government to set up huts on pavement and to not hinder the
demolishing of the huts.

But during the demolishing of the huts he dwellers filed a petition under Article 21. The Supreme Court ruled out that no one
can relinquish their fundamental rights as they are for the public utility given to an individual for his own benefit.

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