Analysis of Art 12 of Constitution of India

The constitution of India has defined the word STATE for the purpose of Part –III and Part IV.

In  STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC observed that the object of Part III is to provide protection to the rights and freedoms guaranteed under this part by the invasion of State.

Part III and Part IV  carry a theme of Human Rights, Dignity of Individual and also of the unity and dignity of the nation.

These parts respectively as a Negative Obligation of the State and not to Interfere with the Liberty of the Individual, and Positive Obligation of the State to take steps for the welfare of the Individual.

Sate under Art 12 of the constitution has Four Components:

1. 1. The Government and Parliament of India

Government means any department or institution of department; Parliament shall consist of the President, the House of People and Council of State.

1. The Government and Legislature of each State.

State Legislatures of each State consist of the Governor, Legislative Council, and Legislative Assembly or any of them.

1. All Local Authorities  and;

It means, Municipal boards Panchayats, Body of Port Commissioner, and other legally entitled to or entrusted by the government.

1. Other Authorities within the territory of India or under the control of Government of India.

The first two categories included the legislative and executive wings of the Union and State in all their possible varieties. They are quite specific and self explanatory.

Judicial Scrutiny

The letter two categories, particularly the last are not so specific and require some explanation. To give a wider dimension to FR the Judiciary has interpreted "State" in different context at different time.

Principle of Ejusdem Generis:

In University of Madras v/s Santa Bai ,the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities which perform governmental or sovereign functions.

In Ujjam Bai v/s Union of India the Supreme Court rejected the principle of ejusdem generis .It observed that there is no common genus between the authorities mentioned in Article 12. And by giving the reference of Art 19 (1) (g), and Art 298 which contemplated engagement of state in the performance of commercial activity, and Art 46 promotion of education or economic interest.

In Rajasthan State Electricity Board v/s Mohan Lals it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions .It should- 
( i ) Be created by the Constitution of India; 
(ii ) Have power to make laws;

In R.D.Shetty  v/s International Airport Authority, the Court laid down five tests to be an other authority- 
( i ) Entire share capital is owned or managed by State. 
( ii ) Enjoys monopoly status. 
( iii ) Department of Government is transferred to Corporation. 
( iv ) Functional character governmental in essence. 
( v ) Deep and pervasive State control.

( f ) Object of Authority 
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.

( g ) Clearance of five tests
In Union of India v/s R.C.Jain , to be a local authority, an authority must fulfill the following tests- 
( i ) Separate legal existence. 
( ii ) Function in a defined area. 
( iii ) Has power to raise funds. 
( iv ) Enjoys autonomy. 
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.

In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that when rule making power of judiciary is concerned, it is State. 
Other jurists say that since judiciary has not been specifically mentioned in Article 12, it is not State, therefore if the Judge or magistrates are not note State while there are functioning  as a Judiciary. But if they are also functioning as Administrator then they will be treated as State within the meaning of Art 12.  The Chief Justice of High court shall have functions in dual role :

1. Chief Justice of High Court
2. Chief Administrative of High Court.

If any citizen aggrieved by the act of the Chief Justice , while he was function as chief administrator of the high court then that chief justice has no remedy and he shall be treated as a State under the Art 12.

Conclusion
The word ‘State' under Article 12 has been interpreted by the courts as per the changing times .It has gained wider meaning which ensures that Part-III can be applied to a larger extent. We hope that it would continue to extent its width in coming times.

Doctrines of Severability

Art 13 provides that Act is void which is inconsistent with the Part III of the constitution. Art 13 is having a flexible nature; it does not make the whole Act inoperative. It makes inoperative only such provisions of it as are inconsistent with or violative of fundamental right. Sometimes valid and invalid portion of the Act are so intertwined that they cannot be separated from one another. In such cases, the invalidity of the portion must result in the invalidity of the Act in its entirety, the reason is that the valid part cannot survive independently. In determining whether the valid parts of a statue are severable from the invalid parts. In intention of the Legislature is the determining factor. In other words it should be asked whether the legislature would have enacted at all that which survive without the part found ultra virus.

The rule of severability applies as much clause (2) as to Clause (1) of Art 13

Jia Lal v/s Delhi Administration AIR 1962

The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact, section 29 of this Act provides that in certain area in which the petitioner did not obtain any license in which the petitioner was residing, it was not necessary to obtain the said license for possession fire arm. Section 29 was challenged as ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the Arms Act 1878 on the ground that two sections were not severable, on the question of severability the SC held that the section 29 of  the Arms Act 1878 was ultra virus.

Doctrine of Eclipse

some laws are held unconstitutional by the courts.now in this scenario, the legal position that remains is that though the law exists in statute books, because of a court decision they are inoperable. therefore in law there is an eclipse cast upon their implementation. Doctrine of eclips deals with pre constitutional law Art 13(1).

Art 13 provides that  any law which made before the commencement of constitution  must be consistent with  the part III of the constitution . if any statue is inconsistence with the provisions of part III of the constitution such statue shall become void. At the same time such statue shall not be treat as Dead unless it is abolish by Parliament. It will be treated as dormant or remains eclipsed to the extent it comes under the shadow of the fundamental rights.

Regarding the doctrine of eclips few points need to be consider.

It is held to be applied only the Pre Constitutional Laws, and not to be post constitutional laws.

Bhikaji   v/s State of MP AIR 1955

The MP Government passed an Act in the year 1950 for nationalizing the motor transport before commencement of the constitution. The statue was challenge by the petitioner under Art 19(1)(g).  The Center Govt. Amended Act 1955 on 27-4-1955 enabling the state to nationalize the motor transport. That SC held that the statue of MP sate State nationalizing the motor transport 1950 was cured by the 4th Amendment Act 1955 and therefore the Doctrine of Eclipse has been applied and the such Act is valid.

Doctrine of Waiver

The Fundamental rights (FR) under Part III Art 12 to 35 of the constitution are conferred to every citizen of India by the constitution. These constitutional rights are not absolute. There are reasonable restriction impose by the constitution. The primary objective of these FR are based on public policy. Therefore no individual can waive off  such RF rights.

The doctrine of waiver of right is based on the premise that a  person is his best judge and that he has the liberty to waive the enjoyment of such right as are conferred on him by the state. However the person must have the knowledge of his rights and that the waiver should be voluntary.

In Basheshr Nath v/s  Income Tax commissioner AIR 1959 SC 149, Held

In this case the petitioner whose matter had been referred to the Investigation commissioner u/s 5(1) of the Taxation of Income Act 1947 was found to have concealed a settlement u/s 8 A to pay Rs 3 Lakhs in monthly  installments, by  way of arrears of tax and penalty. In the meanwhile the SC in another case held that section 5(1) is ultra vires the constitution, as it was inconsistence with Art 14.  So the appellant cannot his waive off his FR.

Conclusion-  It means "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied.

Basic Structure of Constitution of India

Amendments in constitution at time become necessary to adapt to the changing needs of national development and strength, to overcome the difficulties which may encounter  in future in working of the constitution and to realize any popular demand for changing the political system e.g State reorganization, provisions of ST SCs, lowering of age for voting etc.

However the amendment of constitution often been used to achieve political purposes or to override judicial verdicts.

For providing the compatibility of Constitution with the changing society needs , constitution maker provide the  Art 368- Power of Parliament to amend the Constitution and procedure therefor

for the purpose of amendment the provisions of constitution fall under 3 categories.

(a)  Amendment by Simple Majority.

(b)  Amendment by special Majority.

(c)   Amendment by special majority and rectification by states.

Sankari parsad V/s Union of India AIR 1951 SC 455

This is the case which in route the theory of Basic Structure, in this case SC held that

• The power to amend the Constitution including the fundamental rights is contained in the Art 368,
• And that the world Law in Art 13 includes only an ordinary law and does not include constitutional amendment which is made in exercise of constituent power.

In Sajjan Singh v/s State of Punjab, SC held that the world amendment of constitution means amendment of all the provisions of constitution.

Golak Nath V/s State of Punjab AIR 1971 SC 1643

• SC held that Parliament cannot amend the FR,
• Rejection of argument- Amendment of Constitution was a Sovereign Power and that did not permit any implied limitation.

Keshavanand Bharti's V/s State of kerela AIR 1973  SC 1461

This is the case which emerge the theory of Basic Structure first time.

• The Golak Nath Case  was overruled in this case, and SC held that Art 368 ever before 24th Amendment contained the power as well as procedure of amendment.
• The Parliament has a wide powers of amending the constitution but these powers has not the unlimited nature, and does not include the power to destroy or abrogate the "Basic feature of constitution under article 368.

Basic Structure Theory-

Ac to Sikri , CJ, the basic structure was build on the basic foundation i.e. the freedom and dignity of the individual, the feature of BS T are:

1. a. Supremacy of Constitution.
2. b. Republican and Democratic form of Government and sovereign of the country.
3. c. Secular and federal character of Constitution and
4. d. Separation of power between Legislature, executive and Judiciary.

Ac to Shelat and Grover, J.J also included :

1. a. Fundamental Right
2. b. Directive Principle.

Indira Gandhi V/s Raj Narain AIR 1975 SC 2299

In this case 39th Amendment 1975 was passed by parliament for validating with retrospective effect the election of PM Indira Gandhi which was declared invalid by Allahabad High Court on the ground of having committed corrupt practice. Anew article 329 A has been added  that provided that the election of a person who hold the office of PM can be challenged only before such a body or forum as may be established by Parliament by law and not in court.

The SC in this case enhance the list of Basic Structure which was emergence in Keshavanand Bharti's Case :

1. a. Sovereign democratic republic status
2. b. Equality of status and opportunity of an individual
3. c. Secularism and freedom of conscience and religion
4. d. 'government of laws and not of men' i.e. the rule of law

Minerva Mills V/s  Union of India AIR 1980 SC  1789

Struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution

L. Chandra Kumar case

"That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".

Conclusion
Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different judge keep different views regarding to theory of basis structure. No law can be enacted or amended in a manner that violates the spirit of the preamble.