MODULE 2[B]: ANALYSING ARTICLES

12, 13 AND 14 TO THE CONSTITUTION

1. ARTICLE 12
1.1. Introduction
The Constitution of India had followed the U.S. precedent and enacted Fundamental Rights in
the Constitutionitself. The United States Constitution has defined its legislative and executive
powersin two Articles, which makes it easier to define their correlation. However, the Indian
Constitution being an elaborative one, it is difficult to correlate the legislative and executive
powers because those powers are to be found in widely separated parts of our Constitution.

1.2. Meaning of State

The term “State” is defined under Article12 of Part III(Fundamental Rights) of the
Constitution of India. The definition in Article 12 is only for the purpose of application
of the provisions contained in Part III. Hence, even though a body of persons may not
constitute ‘State’ within the instant definition, a writ under Article 226 may lie against it
on non-constitutional grounds or on grounds of contravention of some provision of the
Constitution outside Part III, e.g., where such body has a public duty to perform or where
its acts are supported by the State or public officials.

In Ujjain Bai v. State of U.P the Supreme Court observed that Article 12winds up the list of
authorities falling within the definition by referring to “other authorities” within the territory of
India which cannot, obviously, be read as ejusdem generiswith either the Government or the
Legislature or Local authorities. The word “State” is of wide amplitude and capable of

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comprehending every authority created under the statute and functioning within the territory of
India.

The preponderant considerations for pronouncing an entity as a State agency or instrumentality

are:

1. financial resources of the state being the Chief finding source;

2. the functional character being governmental in essence;

3. plenary control residing in government; prior history of the same activity having been
carried on by the government and made over to the new body;

4. some element of authority or command. Whether the legal person is a corporation created
by a statute, as distinguished from under a statute, is not an important criterion although it
may be an indicium.

The definition of State under Article 12 of the Constitution does not explicitly mention the
Judiciary.Hence, a significant amount of controversy surrounds its status vis-a-vis Part III of the
Constitution. Bringing the Judiciary within the scope of Article 12 would mean that it is deemed
capable of acting in contravention of Fundamental Rights. It is well established that in its non-
judicial functions, the Judiciary does come within the meaning of State.

2. ARTICLE 13:

2.1. Meaning and Explanation of Article 13

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Article 13 deals with the laws that are inconsistent and in derogation with the Fundamental
Rights granted under Chapter III of the Constitution of India. 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. 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.

 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 for the power of Judicial review upon the Courts whereby by virtue
of Article 32 and Article 226, the Supreme Court and the High Courts can declare any
law void and unlawful if such law infringes any fundamental right.
 Article 13 is observed by the Courts as charter for judicial review 1. This feature of
judicial review is one of the basic and integral structures of our Constitution2.

Judicial Review under Article 13

 Over the years, to uphold the principle of Natural Justice, the judicial review has evolved
as a norm. Both the Supreme Court and High Courts of India have given the authority to
rule on the constitutionality of administrative as well as legislative actions. The power of
this judicial review in several cases is exercised for the protection as well as enforcement
of fundamental rights. The scope of judicial review has been expanded by Article 13 of
the Indian Constitution.

1
S.S Bola v. B.D.Sardana, AIR 1997 SC 3127
2
KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461
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In the case of A.K Gopalan vs. State of Madras3 the Hon’ble Supreme Court observed that
Section 14 should be valid by removing preventive detention and when it is removed, it will not
affect the whole act and it will remain valid as well as effective.In the case of D.S Nakara vs.
Union of India4 , the whole act remained valid and the specific portion which was inconsistent
with the fundamental rights was declared as invalid and this was done because it was quite easy
for the court to separate from the consistent part.

2.2. Conundrum over Personal Laws being in the ambit of Article 13

Any "law in force" at the time of commencement of the Constitution of India or enacted after
that which is in conflict with the fundamental rights will be void to that extent. In particular, if
personal laws are covered by Articles 13 and 372 of the Constitution, they will be void to the
extent that they are in contravention of fundamental rights provided in the Constitution. Just like,
Article 14 guarantees equality before law and equal protection of laws. Article 15 prescribes that
no law can discriminate only on the grounds of sex, caste, etc. And Article 21 provides the
fundamental right of life and personal liberty.

2.3. Need and importance of Article 13

 The importance of Article 13 lies in the fact that in a democracy set-up like ours, 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 also takes care of the fact that
the people of this country would not be deprived of their fundamental rights through any
legislation.

3
1950 AIR 27
4
1983 AIR 130

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 3. ARTICLE 14

3.1. Introduction

Articles 14 to 18 of Part III of Indian Constitution provides for a) equality before law, and b)
equal protection of law. One is an affirmative action to be taken, and the other one is a negative
duty imposed upon duty to refrain from discriminating arbitrarily and irrationally. This is
applicable to all persons, 5 citizens, corporations and foreigners. 6

Under Article 14 the State cannot discriminate against persons through state action; else such an
action becomes void in the light of fundamental rights guaranteed under the article. Right to
equality is a restriction on the powers of the state. It defines the boundaries within which state
action has to be confined.

3.3. Meaning and Explanation 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.
 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

5
General Clauses Act, 1897, Section 3, clause 42 defines person to include any company or association or body of
individuals, whether incorporated or not.[
6
"The Citizenship (Amendment) Bill, 2019".PRSIndia. 9 December 2019. Retrieved 12 December 2019.; "Birds to
holy rivers: A list of everything India considers 'legal persons'". Quartz India. 6 June 2019. Retrieved 14 December
2019
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 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 Nadu7, 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.

3.3. Equal Protection Before Law

This part has been derived from the Constitution of America. The following provisions are given
in it.

a) The similar application of the same laws to all persons who are similarly situated.
b) Equal treatment under equal circumstances, both in terms of the privileges
conferred, and liabilities imposed by laws.8
c) All persons should be equally treated without any discrimination.

 Equal protection of laws means that no one should be favored or no one should be
subjected to any additional disadvantage, in situations that do not warrant any reasonable
justification for such a classification for differential treatment. Unjustifiable favour or
individual or class privilege on the one hand, and a hostile discrimination or the
oppression of equality on the other hand is the denial of the concept of equal protection of
laws According to the Supreme Court: ― “……it implies an equal protection to all
persons situated in like circumstances.”9

7
AIR 1992 SC 999
8
Satish Chandra v.Union of India, AIR 1953 SC 250, 252.
9
Chiranjit Lai vs. Union of India, AIR 1951 SC 41
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In other terms it refers to safety or sanctuary under the laws to everyone: under similar terms, in
her/his life, property, freedom and pursuit of happiness. It implies that laws shall be enforced
equally against all without any distinctions on the grounds whatsoever. Article 13(2) lucidly
states that the States shall not make any laws that takes away or abridges Rights conferred by
Part III of the Constitution. Consequently, any infringement of fundamental rights is void to the
extent it is violative of such a right.

3.4. Reasonable Classification and Non-Arbitrariness

 In the case of Ram Krishna Dalmia v Justice RS Tendolkar the scope and meaning of Art.
14 was reiterated as follows. Article 14 permits classification, as long as it is ‘reasonable’
but it forbids class legislation. Such a classification is considered reasonable when the
following requirements are complied with:
1. The classification is based on intelligible differentia that distinguishes persons or
things that are grouped from others that are left out of the group,10and ,
2. Such a differentia has a rational relation with the objective of the Act. It should
have a nexus with the objective sought to be achieved by the state action, and
differentiation must be necessary to achieve that objective.
 In addition to the above requirements, such a classification must have been non-arbitrary,
Supreme Court in the case of E. R Royappa11laid down the conditions for non-
arbitrariness of the Act.
"Equality is a dynamic concept with many aspects and dimensions and it cannot be
‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. From the
positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and

10
D.S Nakara&Ors v Union of India 1983 AIR 130

11
E. P. Royappavs State Of Tamil Nadu &Anr1974 AIR 555, 1974 SCR (2) 348
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 arbitrariness are sworn enemies… Where an act is arbitrary, it is implicit that it is
unequal both according to political logic and constitutional law and is therefore violative
of Article 14."

3.5. Conclusion

 The doctrines of equality before law and equal protection of law under Article 14 have
evolved over the period of time since the drafting of the constitution; and through various
judicial and quasi-judicial measures it is upheld time and again in the spirit of rule of law
as was envisaged by Sir A.V Dicey, the English Jurist.
 For, it is not mathematical equality that is to be imposed or enforced, but equal treatment
to equals and reasonable classification.
 No rights can be enforced perfectly, yet it is the awareness of the persons concerned, and
the sovereign authority to be conscious of their duties, obligations and rights that they
mutually hold towards each other for an effective functioning of democracy by being
subjected to the laws of the land as they are, barring exceptions as was stated in the
article.

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