Articles 12 and 13
Articles 12 and 13 are the Fundamental Rights under Part III of the Constitution of India. A State is defined by the Indian Constitution’s Article 12 while Article 13 deals with the laws that are inconsistent with or in derogation from Fundamental Rights.
Article 12 of Indian Constitution
Most of the Fundamental Rights guaranteed to citizens are asserted against the State and its agencies rather than against private organisations. The term “state” has a wider meaning as a result of Article 12. It is crucial to establish which entities constitute states in order to establish who is responsible for fulfilling obligations.
The Constitution’s framers of the constitution used the term “the State” in a broader sense than what is typically or narrowly interpreted. The State under Article does not refer merely to the states of the Union. The phrase “includes” in the article indicates that the definition is not exhaustive, and the court has broadened the scope of the Article through judicial interpretations much beyond what even the authors of Article 12 may have had in mind when the constitution was being drafted. The definition of state in Article 12 is only for the purpose of application of the provisions contained in Part III.
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Definition of State under Article 12
The state is made up of the central government, the parliament, the governments and legislatures of each state, as well as any local or other authority operating on Indian territory or under the control of the government. In other words, the State includes:
- Government and Parliament of India i.e the Executive and Union Legislature.
- Government and Legislature of each State i.e the Executive and Legislature of the various States of India.
- All the local authorities such as municipalities, panchayats, district boards, port and improvement trusts, etc.
- All other authorities that are present in Indian territory or are operating under the supervision of the Government of India i.e., statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.
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Article 12 Importance
Ordinary laws are sufficient to safeguard against individual rights infringement. However, because the state has been given illimitable power and authority, citizens must be protected by the constitution from the actions of the state. A precise definition of state must be provided in order to provide this protection.
Though Article 12 gives a clear definition of the state, controversies arise due to the 4th category i.e. ‘’other authorities’’. The inclusion of an organisation in the definition of state would make it amenable to the writ jurisdiction of the Supreme Court under Art. 32.
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Article 12 Other Authorities Meaning
In Article 12 of the Indian Constitution, the term ‘other authorities’ has been mentioned. Still, we find no definition of the term, “other authorities” either in the Constitution or in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone many changes over time.
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Article 12 include Judiciary or Not?
Article 12 of the Constitution does not define “judiciary” in any particular way. Thus, to answer whether Judiciary comes under the definition of the state we have to look at the functions of the Judiciary. The functions of the Judiciary can be divided into judicial and non-judicial functions.
Functions Performed by the Judiciary
The functions of the Judiciary can be divided into judicial and non-judicial functions.
- Non – Judicial Functions: When the courts perform their non-judicial functions, they fall within the definition of the ‘State’. Thus, an administrative decision or a rule made by the judiciary can be challenged as being violative of the fundamental right
- Judicial Function: When the courts perform the judicial functions, they will not fall within the scope of the ‘State’. Thus, the judicial decision of a court cannot be challenged as being violative of fundamental rights.
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Article 13 of Indian Constitution
Article 13 of the Indian constitution, addresses all those laws which are inconsistent with or in derogation of fundamental rights. As per Article 13, all such laws in force in the territory of India immediately before the commencement of this Constitution, to the extent as they are inconsistent with the provisions of Part III of the Indian Constitution, shall be void.
Hence, Article 13 forms the basis of the doctrine of judicial review and aids the court and citizens to check the misuse of powers by the legislature and executive. Article 32 and Article 226 confer the power to the Supreme Court and the High Courts through which they can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights. This places the judiciary as the guardian, protector, and interpreter of fundamental rights. Article 13 constitutes law as:
- Permanent laws enacted by Parliament or state legislatures.
- Temporary laws such as ordinances by the president or the governors of the state.
- Statutory instruments in the nature of delegated legislation i.e. executive Legislation as regulation or notification, order, bye-law, rule.
- Non-legislative sources of law i.e. custom or usage having the force of law.
- Even a constitutional amendment act can be challenged.
Article 13 Provisions
|Article 13 Clause||Provisions of the Article|
|Article 13 Clause 1||All laws that were in effect on Indian territory prior to the implementation of this Constitution shall be void to the extent that they are incompatible with the provisions of this Part.|
|Article 13 Clause 2||The State shall not make any law which takes away the rights conferred under Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void|
|Article 13 Clause 3||Laws in force include laws passed or made by the legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, regardless of the fact that any such law or any part thereof may not be then in operation either|
|Article 13 Clause 4
|Nothing under this article shall apply to any amendment of this Constitution made under Article 368 of the constitution Right of Equality|
Constitutional Amendment under Article 13
Though the definition of law given under Article 13 didn’t include the constitutional amendment, during the Kesavananda Bharati vs. the State of Kerala, (1973), the Supreme Court held that a constitutional amendment can be challenged on the ground that it violates a fundamental right which is the part of the basic structure of Indian constitution and can declare any law void
Provision outside Article 13: It should be noted that though Article 13 deals with the statutory laws; it doesn’t include the laws declared by the courts, or the directions or orders issued by the supreme court in accordance with Article 142.