ARTICLE 12

As per Article 12 of the Indian Constitution ‘the State includes 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’.

Meaning of Article 12

Article 12 of the Indian Constitution gives us an overview as to what elements of our democracy can come under the terminology of the ‘State’, which has been used in various Articles under Part III of the Indian constitution, which comprises of our fundamental rights. So, as per Article 12, State comprises of:

1)    The Government at the centre and the Parliament of India

2)    The Governments in State level and the respective State Legislatures.

3)    All local or other authorities which are present in the territorial boundaries of India.

4)    All local or other authorities which are controlled by the Central Government.

Explanation of Article 12

When one analyses the broad categories one finds under the purview of Article 12 as State, the first two categories include the organs of Executive and Legislative of the Central and the States.The terminology ‘Government’ which has been used in the first two categories also includes the various departments under the Control of the Government like the Income-Tax Department[1], Forest Research Institute[2] etc.

The difficulty arises with the third category as there is no inference in the Article as to what ‘local authorities’ are. Section 3(31) of the General Clauses Act, 1897 states that authorities refers to Municipalities, Panchayats, Improvement Trust, District Boards and Mining Settlement Boards. The characteristics required by be a local authority has been explained in the case Union of India v. R.C. Jain[3], as:

1)    There should be separate legal existence as a corporate bodyfor the authority.

2)    It must perform the functions which are entrusted to it in a specific area, where the people who have elected and composed such bodies reside.

3)    The authority must enjoy autonomy either absolute or to a limited extent with respect to its functioning, administration and the policies to be adopted by it.

4)    Functions entrusted by it through a Statute must be in the category of functions which are entrusted to municipal bodies.

5)    The authority must also have power to raise funds for performing activities and projects either by levy of taxes, charges or any kind of fees. This levy must be in addition to amount given by the concerned State Governments, and the authority must have control and management over the fund raised by it.

By applying the above principles, in P.Srinivastava v. Union of India[4], the Court held that Ramgarh Cantonment Board, created by the Cantonments Act is a local authority and is therefore included in the term ‘State’.

The term ‘Other authorities’, mentioned in the fourth category has not been defined in any Statute or Constitution. The Courts have interpreted this term in many precedents. In University of Madras v. Shantha Bai[5], for the first time ‘other authorities’ were interpreted by the Court.  By applying the principle of esjudem generis the Court held that the Madras University was not funded by the State and did not come under the purview of Article 12.But this restricted interpretation of ‘other authorities’ was over ruled in the case of Ujjambai v. State of U.P[6], where Sales Tax officer was held to be ‘State’as the authority exercised functions vested to it by the Government and was one of the instruments working under the Government. In Rajasthan State Electricity Board v. Mohan Lal[7], the court had arrived at a conclusion that  the term ‘other authorities’ was large enough to encompass all authorities created by Actsand working in India, or under the power of Government of India.

By applying this principle, in many cases different authorities like Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation[8], International Airport Authority[9], Regional Engineering College[10], Food Corporation[11], Mysore State Road Transport Corporation[12], National Agricultural Co-operative Federation of India[13]etc, have been interpreted to be within the purview of State under Article 12.

Need and Importance of Article12

When one analysis our fundamental rights in, we can find that the term ‘State’ has been used repeatedly. In order to avoid confusion as to what constitutes ‘State’ or not, our constitution framers have incorporated this provision. There may be various incidents where citizens have approached the Court alleging the violation of their fundamental rights by different authorities, and in order for the court to arrive at a justful decision as to whether the liability is vested upon the Government or not, it is important to first analyze whether the said authority is within the purview of Article 12.

ARTICLE 13

Article 13(1) of the Indian Constitution declares that all laws in force in the territory of India immediately before the commencement of this Constitution shall be void to the extent to which they are inconsistent with the provisions of part III of the Constitution. Clause (2) of this Article enshrines that the State shall not make any law which takes away or abridges the fundamental rights conferred by part III of the Constitution and any law made in contravention of fundamental rights shall, to the extent of contravention, be void.

Meaning of Article 13

As per clause (1), all pre-constitutional laws which are inconsistent with the fundamental rights shall be null and void once the constitution of our country commences. While clause (2) deals with the post-constitutional laws, whereby this Article mandates that the legislature shall not make any laws which is in violation to the fundamental rights.

Explanation of Article 13

Article 13 makes the fundamental rights enforceable through the court of law. This provision secures the Supremacy of the Constitution especially with respect to fundamental rights. This Article provides the power of Judicial review upon the Courts whereby by virtue of Article 32 and Article 226, the Supreme Court and the High Court can declare any law void and unlawful if such law infringes the fundamental rights in our Constitution.Article 13 is observed by the Courts as charter for judicial review[14]. This feature of judicial review is one of the basic and integral structures of our Constitution[15].

When cases come before the Courts where the provisions of a particular act which is inconsistent with the provisions of constitution are separable from the valid portions, the Courts applies the Doctrine of Severability to repeal away the inconsistent portions and to retain the valid portions. In R.M.D.C v. Union of India[16], the constitutionality of the Prize Competitions Act, 1955 was challenged as being violative of Article 19(1) (g). The court applied the Doctrine of Severability and repealed away the competitions which were of gambling nature and retained the competitions where skill was involved. While in the case of A.K. Gopalan v.State of Madras[17], when the Court repealed away the Section 14 of Preventive Detention Act, 1950, the Court observed that the rest of the Statute would remain constitutional.

But when cases come where the parts of Statute are inconsistent with the fundamental rights, the doctrine of Eclipse will be applied by the Courts. As explained by the Court in Bhikanji Narayan v. State of Madya Pradesh[18],when the provisions of a Statute is inconsistent with the fundamental rights , those provisions are considered to be overshadowed by the fundamental rights and remains dormant, but are not dead. Through an amendment the inconsistency of the provisions as to the fundamental rights can be changed and it would revive itself to be a valid law. This doctrine is only applicable to those statutes which were formulated and were in existence before the commencement of the Constitution[19]. In Keshava Madhava Menonv. State of Bombay[20],Court observed that a law in force before the commencement of constitution does not become null and void if it found to be inconsistent with the fundamental rights. Such laws would only be void up to which it is invalid to the fundamental rights, and such inconsistency can be rectified through amendments while applying the Doctrine of Eclipse.

Another Doctrine which is discussed with respect to Article 13 is the Doctrine of Waiver. According to this doctrine, any person who is entitled to any kind of right can relinquish his/her right voluntarily. Once he/she waives the individual right, they would not be able to claim it afterwards. In Suraj Mall Mehto v. A.V. VisvanathSastri[21] and Muthiah v. Commissioner of Income-Tax[22], the court held that doctrine of waiver is not applicable to fundamental rights. No person can waive any of his rights enshrined under Part III of the constitution.

Need and importance of Article 13

The importance of Article 13 lies in the fact that in a democracy set-up like ours, where every five years a different political party would form the Government and be part of our law making and executing process, it is essential to have a mechanism which would not allow them to enact laws to suit their ideologies and be inconsistent with our constitution. Article 13 ensures the supremacy of the Constitution and alsotakes care of the fact that the people of this country would not be deprived of their fundamental rights through any legislation.

ARTICLE 14

Article 14 provides that ‘the State shall not deny to any person equality before law or equal protection of law within the territory of India’.

Meaning of Article 14

This Article of our Constitution establishes the concept of ‘Rule of Law’ and ‘equal protection of laws’. It means that no human being should be placed above law and that every person irrespective of gender, rank or position should be subjected to the law of the land. No discrimination shall be between persons when they come before a court of law, based on any criteria.

Explanation of Article 14

The phrase ‘equality before law’ somewhat has a negative concept as it implies absence of any kind of special privileges in favour of any class of individuals, while  the expression ‘equal protection of laws’ is positive in nature and ensures that each individual shall be treated equally in all circumstances. In Srinivasa Theatre v. Government of Tamil Nadu[23], the Court observed that the expressions ‘equality before law’ and ‘equal protection of law’ did not mean same thing. The term ‘law’ in the former expression was used in a philosophical sense, while in the latter expression ‘law’ denotes specific laws which are in force.

Article 14 permits reasonable classification but prohibits class legislation- Though the Article states that same laws should be applied to every persons, it allows classification. The said classification must not be arbitrary, artificial or evasive; it should be reasonable classification[24].In Charanjit Lal Chowdhury v. Union of India[25], the court while upholding the constitutionality of Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance, 1950, observed that law should be constitutional, even if it is applicable to one person or class of persons. Class legislation is prohibited by Article 14. Class legislation is when a particular Statute differentiates between people belonging to same class unequally. In D.S. Nakara v. Union of India[26], the Supreme Court struck down a Pension rule which classified government pensioners retiring before March 31, 1979 and those retiring on or after that date, as violative of Article 14, since they belonged to the same class with respect to computation of pension.

To verify whether legislationis reasonable or not, the Courts have evolved the test of reasonable classification in R.K.Dalmia v. Justice Tendolkar[27]:

1)    The classification must be founded on an Intelligible Differentia, which distinguishes persons or things which are grouped together from others left out from the group.

2)    The differentia must have a rational relation or nexus tothe object sought to be achieved by the Statute.

Instances of Classification

1.    In Ajay Hasia v. Khalid Mujib[28],when for the oral interview a high percentage of the total markswere allotted for the admission to the Engineering College, the Court said that awarding more than 15 percentage of the total marks for oral interview is an arbitrary action which violates Article 14.

2.    In Mithu v. State of Punjab[29], Supreme Court struck down Section 303 of Indian Penal code as violative of Article 14 as there was no rationale in differentiating between persons who commit murder while serving life imprisonment and persons who commit murder when not serving life imprisonment for the purpose of awarding death penalty.

3.    In Air India v. NargeshMeerza[30],Air India and Indian Airlines Regulations which provided for the air hostess to retire upon the attainment of the age of 35 or on marriage or pregnancy, if it took place on the first four years of marriage was struck down as it is violative Article 14.

4.    In P. Rajendra v. State of Madras[31], the provision for allotment of seats in medical colleges in the State amongst the various districts in the State in the ratio of the population of each district to the total population of the State was struck down as unconstitutional.

Need and importance of Article 14

 Article 14 is one of the fundamental rights provided in our Constitution. This Article is important as if there was no such provision available in our Constitution it would have led to many arbitrary classifications persisting in our country. Whenever legislation or a provision is challenges before the Court, the prime aspect the judiciary looks into is whether the said Statute or its provision has any arbitrary classification in it. If there is any arbitrary provision, then that provision or Act would be struck down as unconstitutional.

[1] Bidi Supply Co. v. Union of India, AIR 1956 SC 479

[2]Purushottam Lal v. Union of India, AIR 1973 SC 1088

[3] AIR 1981 SC 951

[4] AIR 1981 Patna 212

[5] AIR 1954 Mad. 67

[6] AIR 1962 SC 1621

[7] AIR 1967 SC 1857

[8] Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331

[9]R.D.Shetty v. International Airport Authority, AIR 1979 SC 1628

[10] Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487

[11] State of Punjab v. Raja Ram, AIR 1981 SC 1694

[12] Mysore S.R.T.C v. Devraj Urs, AIR 1976 SC 1027

[13]A.M.Ahamed and co v. Union of India, AIR 1982 Madras 247

[14]S.S Bola v. B.D.Sardana, AIR 1997 SC 3127

[15]Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

[16] AIR 1957 SC 628

[17] AIR 1950 SC 27

[18] AIR 1955 SC 781

[19] Deep Chand v. State of U.P, AIR 1959 SC 648

[20] AIR 1951 SC 128

[21] AIR 1954 SC 545

[22] AIR 1956 SC 269

[23] AIR 1992 SC 999

[24] State of West Bengal v. Anwar Ali, AIR 1952 SC 75

[25] AIR 1951 SC 41

[26] AIR 1983 SC 130

[27] AIR 1958 SC 538

[28] AIR 1981 SC 487

[29] AIR 1983 SC 473

[30] AIR 1981 SC 1829

[31]AIR 1968 SC 1012

[32]Writ Petition (Criminal.)No.194 of 2017