File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Article 12 and 13 of the constitution of India

Article 12: Article 12 of the Indian Constitution defines a State.
A state includes:
  1. The government and parliament of India.
  2. The government and legislature of each state.
  3. The local or other authorities within the territory of India.
  4. The local or other authorities under the control of Govt. of India.

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 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:

  1. Local government: According to Entry 5 of the List II of VII Schedule 'local government' includes a munici
  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.

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.

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.

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 '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.

ARTICLE 13 : 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 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

The doctrine of eclipse

This doctrine simply states that any law which is contrary to fundamental rights enshrined in Part III of the constitution is not void but becomes unenforceable i:e it becomes dormant for an infinite period of time until the inconsistency is removed from it.

The apex court of India evolved this doctrine in the case of Bhikaji v. State of Madhya Pradesh in this case court held that any law existing before the commencement of the constitution which is inconsistent with any of the provisions mentioned in Part III of the constitution is simply not void but becomes unenforceable.

The doctrine of Severability

From the word severability, it is clear that it means to separate. According to this doctrine, not the whole act is considered void but only the impugned part which is contrary to the provisions of Part III is considered void provided that the impugned act is separable.

Supreme Court in A.K Gopalan Case used this doctrine to decide the matter. Where Section 14 of the Preventive Detention Act, 1950 was declared as void and the rest of the act was valid. In the RMDC v. UOI, the apex court laid down following rules regarding the use of Doctrine of severability:
  • The intention of the legislature behind enacting the ACT is important to decide whether the impugned part is separable from the whole act or not.
  • If the impugned provision is not separable from the whole act then the whole act will be considered as void.
  • If the impugned provision is separable from the whole Act but the whole of the act forms a part of a single scheme which was intended to operate as a whole then also the whole act will be considered as void.

    Written By: Ms.Ishika Jain

    Awarded certificate of Excellence
    Authentication No: AG30820603582-17-820

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Constitution of India-Freedom of speech ...

Titile

Explain The Right To Freedom of Speech and Expression Under The Article 19 With The Help of Dec...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly