Fundamental Rights: The Concept of State and Article 13 notes — Unit 2

Part III of the Indian Constitution (Articles 12 to 35) contains the Fundamental Rights. These rights are often described as the 'Magna Carta' of India.

⇒1.1 Why are they 'Fundamental'?

• They are guaranteed and protected by the Constitution itself, which is the supreme law of the land.
• They are justifiable; a citizen can directly approach the Supreme Court (Article 32) or High Court (Article 226) if they are violated.
• They act as negative obligations on the State. They dictate what the State cannot do to an individual.

⇒1.2 Against Whom are they Available?

This is a crucial concept: Fundamental Rights are generally available ONLY against the 'State'.

If a private company fires you unfairly, you cannot file a writ petition claiming violation of Fundamental Rights (you must file an ordinary civil suit). But if a government department fires you unfairly, your Fundamental Rights are violated. Therefore, before claiming a Fundamental Right, one must prove that the violator falls under the definition of 'State'.

Since Fundamental Rights are claimed against the State, Article 12 defines what the 'State' is for the purposes of Part III.

⇒2.1 Breakdown of the Definition

• Government and Parliament of India: The Executive (President, PM, Ministers, IAS officers) and Legislature (Lok Sabha, Rajya Sabha) at the central level.
• Government and Legislature of States: The Executive (Governor, CM) and Legislature (Vidhan Sabha) at the state level.
• Local Authorities: Municipalities, Panchayats, Improvement Trusts, Port Trusts, Mining Settlement Boards.
• Other Authorities: This is the most ambiguous and fiercely litigated term in Article 12. Does it include ONGC? LIC? BCCI? Universities? Private hospitals?

The Supreme Court has vastly expanded the definition of 'Other Authorities' over the decades to prevent the government from violating fundamental rights by creating corporations or agencies to do its dirty work.

⇒3.1 Evolution of the Interpretation

⇒4.1 Ajay Hasia v. Khalid Mujib (1981)

In this landmark case, a registered society running an engineering college was held to be a 'State'. The Supreme Court summarized the tests (derived from R.D. Shetty) to determine if a body is an instrumentality or agency of the State:

• 1. Financial Control: If the entire share capital of the corporation is held by government, or if the government provides massive, unusual financial assistance.
• 2. State Monopoly: If the corporation enjoys a monopoly status conferred or protected by the State.
• 3. Deep and Pervasive Control: If the government has deep and pervasive control over the management and policies of the body.
• 4. Public Importance: If the functions of the corporation are of public importance and closely related to governmental functions.
• 5. Department Transfer: If a department of the Government is transferred to a corporation.

Note: No single factor is conclusive. The court looks at the cumulative effect of these factors.

⇒4.2 Is BCCI a 'State'?

Article 12 explicitly mentions the Executive and Legislature, but is completely silent on the Judiciary. Can a judge violate your fundamental rights while delivering a judgment?

⇒5.1 The Dual Role of the Judiciary

The Supreme Court (in cases like Naresh Shridhar Mirajkar v. State of Maharashtra and A.R. Antulay v. R.S. Nayak) has clarified the position by dividing the functions of the judiciary into two categories:

If Article 12 defines who cannot violate fundamental rights, Article 13 provides the shield against such violations. It gives teeth to Part III by expressly establishing the doctrine of Judicial Review.

⇒6.1 Pre-Constitutional Laws (Article 13(1))

Deals with laws that were already in force in India before the Constitution commenced (26 Jan 1950). If any old British-era law clashes with a Fundamental Right, it becomes void from Jan 26, 1950, to the extent of such inconsistency.

⇒6.2 Post-Constitutional Laws (Article 13(2))

Deals with laws made after the Constitution commenced. It commands the State: 'The State shall not make any law which takes away or abridges the rights conferred by this Part.' If the Parliament or State Legislature passes such a law, it is void ab initio (from the very beginning).

⇒6.3 The Meaning of 'Law' (Article 13(3))

The term 'law' in Article 13 is extremely wide. It includes:

• Permanent laws passed by Parliament or State Legislatures.
• Temporary laws like Ordinances issued by the President or Governor.
• Statutory instruments like orders, bye-laws, rules, regulations, and notifications (Delegated Legislation).
• Non-legislative sources of law like custom or usage having the force of law.

The Supreme Court has evolved several vital jurisprudential doctrines to interpret Article 13.

⇒7.1 Doctrine of Severability

When a statute is challenged, the court does not automatically strike down the entire Act. It applies the Doctrine of Severability (separability).

• If the unconstitutional part of the law can be separated (severed) from the constitutional part, only the offending provision is declared void.
• The rest of the Act remains valid.
• Exception: If the valid and invalid parts are so tightly intertwined that separating them destroys the entire legislative intent, the whole Act is struck down.
• Case Law: A.K. Gopalan v. State of Madras (1950) - The SC struck down only Section 14 of the Preventive Detention Act, keeping the rest of the Act alive.

⇒7.2 Doctrine of Eclipse

This doctrine applies primarily to Pre-Constitutional laws under Art 13(1).

• If an old law clashes with a new Fundamental Right, it is not wiped out of the statute book permanently. It merely becomes dormant or 'eclipsed' by the shadow of the Fundamental Right.
• It remains valid for all past transactions (before 1950) and against non-citizens (if the right belongs only to citizens).
• If, in the future, the Constitution is amended to remove that specific Fundamental Right, the shadow is lifted, and the old law becomes fully active again without needing to be re-enacted.
• Case Law: Bhikaji Narain v. State of M.P. (1955) - A pre-constitution law giving the state a monopoly over motor transport was eclipsed by Art 19(1)(g). Later, an amendment to Art 19(6) allowed state monopolies, removing the eclipse and reviving the law.

⇒7.3 Doctrine of Waiver

In the USA, a citizen can voluntarily waive (give up) their constitutional rights. Can an Indian citizen do the same?

⇒8.1 Article 13 vs Article 368 (The Great Battle)

Article 13 says the State cannot make any 'law' that violates Fundamental Rights. Article 368 gives Parliament the power to 'amend' the Constitution.

The Big Question: Is a Constitutional Amendment under Art 368 considered a 'law' under Art 13? If YES, then Parliament cannot amend the Constitution to take away Fundamental Rights. If NO, Parliament can completely destroy Fundamental Rights.

The legal battle over this question is the most dramatic saga in Indian constitutional history.

⇒Summary of Key Takeaways

• Article 12: Defines 'State'. The most litigated part is 'Other Authorities'. The Supreme Court uses the Instrumentality/Agency Test (Ajay Hasia) to determine if a body is a State.
• Judiciary as State: Administrative functions = State. Judicial functions = NOT State (A.R. Antulay).
• Article 13: The shield of Judicial Review. It renders any law violating Part III void.
• Doctrines: Severability (separating the bad from the good), Eclipse (dormant pre-constitutional laws), and Waiver (Indians cannot waive fundamental rights).
• Amendability: Resolved by Kesavananda Bharati. Fundamental rights can be amended, provided the Basic Structure is not destroyed.

⇒University Exam Tips for this Unit

• Article 12 Question: If asked 'Is XYZ Corporation a State?', you must list the 5 points of the Ajay Hasia Instrumentality test (financial control, monopoly, deep pervasive control, etc.) and apply it to the facts.
• Article 13 Doctrines: These are usually 5-mark or 10-mark short notes. Always mention Bhikaji Narain for Eclipse, A.K. Gopalan for Severability, and Basheshar Nath for Waiver.
• Amendability Essay: A 20-mark question on 'Can Fundamental Rights be amended?' requires the chronological story: Shankari Prasad -> Golaknath -> 24th Amendment -> Kesavananda Bharati. Writing this sequence guarantees top marks.