PART II – STATE AND LAW

Prepared by –Bhargabi Baruah

ISBR LAW COLLEGE
• STATE (ARTICLE – 12)
• Most of the fundamental rights are claimed against the state and its instrumentalities and not
against private bodies. According to art. 12, the term ‘state’ includes—
• (i) The Government and Parliament of India:
• (ii) The Government and the Legislature of a state;
• (iii) All local authorities; and
• (iv) Other Authorities within the territory of India, or under the control of the central government.
the most significant expression used in art. 12 is “other authorities”. This expression is not defined
in the constitution. it is, therefore, for the supreme court, as the apex court, to define this term. it is
obvious that wider the meaning attributed to the term “other authorities” in art. 12, wider will be
the coverage of the fundamental rights, i.e., more and more bodies can be brought within the
discipline of the fundamental rights
• (a) other authorities the interpretation of the term ‘other authorities’ in Art. 12 has
caused a good deal of difficulty, and judicial opinion has undergone changes over
time. Today’s government performs a large number of functions because of the
prevailing philosophy of a social welfare state. The government acts through
natural persons as well as juridical persons some functions are discharged
through the traditional governmental departments and officials while some
functions are discharged through autonomous bodies existing outside the
departmental structure, such as, companies, corporations etc. while the
government acting departmentally, or through officials, undoubtedly, falls within
the definition of ‘state’ under art. 12, doubts have been cast as regards
• the character of autonomous bodies. whether they could be regarded as
‘authorities’ under art. 12 and, thus, be subject to fundamental rights? an
autonomous body may be a statutory body, i.e., a body set up directly by a
statute, or it may be a non-statutory body, i.e., a body registered under a general
law, such as, the companies act, the societies registration act, or a state
cooperative societies act, etc. questions have been raised whether such bodies
may be included within the coverage of art. 12. For this purpose, the Supreme
Court has developed the concept of an “instrumentality” of the state. any body
which can be regarded as an “instrumentality” of the state falls under art. 12. the
reason for adopting such a broad view of art. 12 is that the constitution should,
whenever possible, “be so construed as to apply to arbitrary application of power
against individuals by centre’s of power. The emerging principle appears to be
that a public corporation being a creation of the state is subject to the
constitutional limitation as the state itself
• In University of Madras v. Santa Bai the principle of ejusdem generis or things of
like nature was applied and this meant that authorities exercising governmental
or sovereign function would only be covered under other authorities. The liberal
interpretation came when the apex court in Ujjambai v. State of U.P rejected the
interpretation on the basis of ejusdem generis and held that no restriction can be
assigned to the interpretation of the term.
• In Rajasthan State Electricity Board v. Mohanlal, the Supreme Court ruled that
the expression other authorities is wide enough to include all authorities created
by the constitution or Statute on whom powers are conferred by law.It is not
necessary that the Statutory authority should be enagaged in performing
governmental or Sovereign functions.
• In Sukhdev v. Bhagatram, three statutory bodies, viz., life insurance corporation, oil and
natural gas commission and the finance corporation, were held to be “authorities” and,
thus, fall within the term ‘state’ in Art. 12. These corporations have power to make
regulations under the statute for regulating conditions of service of their employees. The
rules and regulations framed by the above bodies have the regulation framed by the have
bodies have the force of law. The terms of contract with a particular employer is
prescribed by the Statute itself The employees are entitled to claim protection of Art 14
and 16 against the Corporation.
• Mathew J in a separate but concurring judgement preferred a broader test preferred a
broader test that if the functions are of public importance and closely related to govt
functions it should be treated as an agency or instrumentality of govt and hence State
within the ambit of Art 12 of the Const.
• Airport Authority’s case Bhagwati J preferred and rightly the boarder test as
suggested by Mathew J in Sukhdev Vs Bhagatram case. In this case the court has
held that if a body is an agency or instrumentality of government it may be an
authority within the meaning of Art 12 whether it is a statutory corporation, a
government company or even registered society.Accordingly it was held that
International Airport Authority which has been created by an Act of Parliament
was the “State” within the meaning Art12.
• The question regarding the status of a non-statutory body was finally clinched in Ajay hasia,
where a society registered under the societies registration act running the regional engineering
college, sponsored, supervised and financially supported by the government, was held to be an
‘authority’. Money to run the college was provided by the state and central governments. The
state government could review the functioning of the college and issue suitable instructions if
considered necessary. Nominees of the state and central governments were members of the
society including its chairman. the supreme court ruled that where a corporation is an
instrumentality or agency of the government, it must be held to be an authority under art. 12.
“The concept of instrumentality or agency of the government is not limited to a corporation
created by a statute but is equally applicable to a company or society….” thus, a registered
society was held to be an ‘authority’ for the purposes of art. 12. Ajay Hasia has initiated a new
judicial trend, viz., that of expanding the significance of the term “authority”. In ajay hasia, the
supreme court laid down the following tests to adjudge whether a body is an instrumentality of
the government or not:
• (1) if the entire share capital of the body is held by the government, it goes a long
way towards indicating that the body is an instrumentality of the government.
• (2) where the financial assistance given by the government is so large as to meet
almost entire expenditure of the body, it may indicate that the body is
impregnated with governmental character.
• (3) it is a relevant factor if the body enjoys monopoly status which is conferred
or protected by the state.
• (4) existence of deep and pervasive state control may afford an indication that the
body is a state instrumentality.
• (5) if the functions performed by the body are of public importance and closely
related to governmental functions, it is a relevant factor to treat the body as an
instrumentality of the government.
• The law appears to be now settled in view of the judgment of a seven constitution
bench of the supreme court in pradeep kumar biswas where, after considering the
authorities it concluded that the tests formulated in ajay hasia were not a rigid set
of principles so that if a body falls within any of those tests, ex hypothesi, it must
be considered to be a state within the meaning of article 12. The court suggested
a general guideline observing: “the question in each case would be whether in the
light of the cumulative facts as established, the body is financially, functionally
and administratively dominated by or under the control of the government. Such
control must be particular to the body in question and must be pervasive. If this is
found then the body is a state within article 12. On the other hand, when the
control is merely regulatory whether under statute or otherwise, it would not
serve to make the body a state.”
 ARTICLE 13
• Article 13 of the constitution talks about the four principles relating to
fundamental rights. Fundamental rights do exist from the date on which the Indian
Constitution came into force i.e on 26th January 1950 hence fundamental rights
became operative from this date only.
• Article 13(1) talks about the pre-constitutional laws i.e the day from which the
constitution came in existence there were many laws in the country and when the
constitution came into existence fundamental rights came later, therefore the laws
before the existence of the constitution must prove their compatibility with the
fundamental rights, only then these laws would be considered to be valid
otherwise they would be declared to be void
• For example article 15 of the constitution do gives the right to education to all
without any discrimination on the basis of caste, sex, religion, etc, but an
Education act which came in existence in 1930 says that a particular group of
kids would not be provided education on the basis of their caste'. As this
particular clause of the act is inconsistent with that of the fundamental rights
therefore it is declared to be null and void.
• Article 13(1) refers to pre-constitution laws: according to clause (1) of article 13
all pre constitution or the existing laws, i.e. Laws which were in force
immediately before the commencement of the constitution shall be void to the
extent to which they are inconsistent with fundamental rights from the date of the
commencement of the constitution
• Art. 13(1) is prospective and not retrospective. Therefore, a pre constitution law inconsistent with
a fundamental right becomes void only after the commencement of the constitution. Any
substantive rights and liabilities accruing under it prior to the enforcement of the constitution are
not nullified.
• A person was being prosecuted under a law before the constitution came into force. After the
constitution came into force, the law became void under art. 19(1)(a). Keshva Madhav enon v.
State of Bombay, in this case the petitioner published a pamphlet according to the pre
constitutional laws in 1949 but as the Indian constitution came in effect from 1950 it gave the
freedom of speech and expression under article 19 of the Indian constitution, therefore the apex
court said that the petitioner's trial must go on as the benefit of article 13 would not be given to
him because article 13 is not retrospective in nature. It was held that art. 13(1) could not apply to
him as the offence had been committed before the enforcement of the constitution and, therefore,
the proceedings against him were not affected.
• But the procedure through which rights and liabilities were being enforced in the
pre constitution era is a different matter. A discriminatory procedure becomes
void after the commencement of the constitution and so it cannot operate even to
enforce the pre-constitution rights and liabilities, Lachmandas v. State of
Maharashtra. A law inconsistent with a fundamental right is not void as a whole.
It is void only to the extent of inconsistency. This means that the doctrine of
severability has to be applied and the offending portion of the law has to be
severed from the valid portion thereof, sub-inspector Rooplal v. Lt. Governor.
• Doctrine of severability
• According to art. 13, a law is void only “to the extent of the inconsistency or
contravention” with the relevant fundamental right. The above provision means
that an act may not be void as a whole; only a part of it may be void and if that
part is severable from the rest which is valid, then the rest may continue to stand
and remain operative. The act will then be read as if the invalid portion was not
there. 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
• A.K gopalan v. State of madras
• In this case section 14 of preventive detention act,1950 was challenged. Section
14 of the act says that if any person is being detained under this act then he or she
may not disclose the grounds of his or her detention in court of law, this
particular statement is inconsistent with that of fundamental rights as per article
22 of the indian constitution, thus if we do apply the doctrine of severability here
so the whole act (preventive detention act,1950) would not be declared as void
but only section 14 of the act would be declared as void as it is inconsistent with
the fundamental rights
• Doctrine of eclipse
• The prospective nature of art. 13(1) has given rise to the doctrine of eclipse. The
doctrine of eclipse is based on the principle that a law which violates
fundamental rights is not nullity or void ab initio but becomes only
unenforceable. It is over-shadowed by the fundamental rights and remains
dormant, but it is not dead. They exist for all post transactions and for the
enforcement of the rights acquired and liabilities incurred before the
commencement of the constitution. The doctrine of eclipse envisages that a pre-
constitution law inconsistent with a fundamental right was not wiped out
altogether from the statute book after the commencement
• Of the constitution as it continued to exist in respect of rights and liabilities
which had accrued before the date of the constitution. Therefore, the law in
question will be regarded as having been ‘eclipsed’ for the time being by the
relevant fundamental right. It was in a dormant or moribund condition for the
time being. Such a law was not dead for all purposes. If the relevant fundamental
right is amended then the effect would be “to remove the shadow and to make the
impugned act free from all blemish or infirmity
• A legal provision enacted in 1948, authorising the state government to exclude all
private motor transport business, became inconsistent with Art. 19(1)(g) when
the constitution came into force in 1950. In 1951, art. 19(1) (g) was amended so
as to permit the state government to monopolise any business. What was the
effect of the constitutional amendment of 1951 on the law of 1948? Whether the
law having become void was dead once for all and so could not be revitalised by
a subsequent constitutional amendment without being re-enacted, or whether it
was revived automatically? It was to solve this problem that the Supreme court
enunciated the doctrine of eclipse in Bhikaji v. State of Madhya Pradesh
• He doctrine of eclipse has been held to apply only to the pre-constitution and not
to the post constitution laws. The reason is that while a pre-constitution law was
valid when enacted and, therefore, was not void ab initio, but its voidity
supervened when the constitution came into force, a post-constitution law
infringing a fundamental right is unconstitutional and a nullity from its very
inception.
• Post- constitutional law: article 13 (2) talks about the post
constitutional laws i.e it says that once the constitution is framed and
came in effect then any of the state may not make laws that takes
away or abridges the fundamental rights of an individual and if done
so then it would be void till the extent of contravention. Does the
doctrine of eclipse apply to a post- constitutional law? In Deep chand
v. State of U.P., SC held that a post constitutional law made under
A.13(2) which contravenes a fundamental right is nullity from its
inspection and a still- born law. It is void ab initio. The doctrine of
eclipse does not apply to post-constitutional laws and therefore, a
subsequent constitutional amendment cannot revive it
• State of Gujrat v. Ambika mills here a certain Labour welfare fund act was challenged, as certain
sections in it were against the fundamental rights. Since the fact that the laws made by the state
after the constitution is framed would be declared void if those laws are against the fundamental
rights, but here the question arose that fundamental rights are only granted to citizens but what
will happen in the case of non-citizens or a company (company here is the respondent i.e ambika
mills). It was held by the apex court that since the fundamental rights are only granted to the
citizens but not to the company or any non-citizen, therefore the labour welfare fund act is valid.
In this case SC modified its view as expressed in Deep Chand case.
• In case the law contravenes a fundamental right limited to the citizens only, it will operate with
respect to the non-citizens. Such a law will be regarded as ‘still-born’ vis-à-vis the citizens even
though it may be operative qua the noncitizens, and so it will have to be re-enacted if it is desired
to make it valid qua the citizens.
• ‘LAW’ AND ‘LAW IN FORCE’
• The term ‘law’ in art. 13 has been given a wide connotation so as to include any
ordinance, order, bye-law, rule, regulation, notification, custom or usage having
in the territory of India the force of law [art. 13(3)(a)]. The definition of ‘law’ in
this article is wider than the ordinary connotation of law which refers to enacted
law or legislation. It includes even the administrative order issues by an
executive officer, but does not include administrative directions or instructions
issued by the government for the guidance of its officers. Accordingly, inter alia
the following have been held to be ‘law’ under art. 13, the validity of which can
be tested on the touchstone of fundamental rights
• (i) a resolution passed by a state government under fundamental rule 44 of the
state;
• (ii) a government notification under the commissions of inquiry act setting up a
commission of inquiry;
• (iii) a notification or an order under a statute;
• (iv) an administrative order; but administrative instruction is not law within the
meaning of article 13.
• (v) a custom or usage;
• (vi) bye-laws of a municipal or a statutory body;
• (vii) regulations made by a statutory corporation like the life insurance
corporation