Part III of the Constitution of India, titled as 'Fundamental Rights' secures to the people of India, certain basic,

natural and inalienable rights. These rights have been declared essential rights in order that human liberty may be
preserved, human personality developed and an effective social and democratic life promoted. Part III of the
Constitution of India does not confer fundamental rights, it confirms their existence and gives them protection.
MEANING OF STATE UNDER ARTICLE 12 OF THE Constitution OF India

It states that: In this Part, unless the context otherwise requires, “The State” includes the Government and
Parliament of India and the Government and the Legislature of each States and all local or other authorities within
the territory of India or under the control of the Government of India.
It says that unless the context otherwise requires the term ‘State’ includes the following :

The Government and Parliament of India

The term 'State' includes Government of India i.e. Union Executive and Parliament of India i.e. Union Legislature.
The term Government stands to include a Department of Government or any institution under the control of a
Department of Government e.g. the Income-Tax Department. The President while acting in his official capacity
must be included in the term Government and be regarded as the State for the purposes of Part III.

The Government and Legislature of each State

The term 'State' includes Government of each State i.e. State Executive and Legislature of each state i.e. state
legislature. It includes Union Territories as well.

Local Authorities
The expression 'Local Authorities' has been defined in Section 3(31) of the General
Clauses Act 1897 as follows -
"local authority" shall mean a municipal committee, district board, body of port commissioners or other authority
legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund."

In Union of India vs. R.C. Jain, to be considered a “local authority”, an authority must fulfill the following tests -

1) The authority must have separate legal existence as corporate bodies.

2) It must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the
inhabitants of the area.
3) It must have the power to raise funds for the furtherance of its activities and the fulfilment of its projects by
levying taxes, rates, charges or fees. It may be, in addition to moneys provided by Government or obtained by
borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority.
4) It must enjoy certain degree of autonomy, with freedom to decide for itself, questions of policy affecting the area
administered by it.
5) It must be entrusted by a statute with such Government al functions and duties which are usually entrusted to
municipal bodies.

OTHER AUTHORITIES
The expression other authorities has neither been defined in the Constitution nor in any statute. Literally ‘authority’
means a person or body exercising power or having a legal right to command and be obeyed. In the context of
Article 12, the term authority means the power to make laws orders regulation and bye-laws etc. having the force of
law and also the power to enforce them.

For the first time the expression other authorities was interpreted by Madras High Court in the case of University
of Madras vs. Shantha Bai
Where its was held that the words local or other authorities must be construed ejusdem generis with the Government
or legislature and so construed, can only mean authorities exercising Government al functions. The university of

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 madras, the Court held was a body-corporate created by the madras university act , 1923. Though state aided the
university was not maintained by the state and hence did not come within the scope of Article 12.

In the case of R.D.Shetty vs. International Airport Authority,

The International Airport Authority was a corporate body constituted under the International Airport Authority Act
of 1971. The chairman and members of the IAA are nominated by the central Government , who is vested with
power to terminate their appointment or to remove them in specified circumstances. The central Government is also
vested with the power to take away the management of any airport from the IAA and to entrust it to any other
person or authority. It can give binding directions in writing to the IAA on questions of policy. The capital needed
for carrying out its functions by the IAA is wholly provided by the central Government . The IAA is to manage the
administration of the airports and air navigation services which were earlier performed by the central Government .
The IAA is vested with power to frame regulations and provide that contravention of certain specified regulations
shall entail penal consequences.

Finally the Court laid down the following tests to be applied in determination if whether or not a body is an
instrumentality or agency of the Government :

• If the entire share capital of the corporation is held by the Government , it would go for long way towards
indicating that the corporation is an instrumentality or agency of the Government

• Whether the corporation enjoys monopoly status which is state conferred or state protected.

• Existence of deep and pervasive state control may afford an indication that the corporation is a state agency
or instrumentality.

• If the function of the corporation are of public importance and closely related to Government functions, it
would be relevant factor in classifying a corporation as an instrumentality or agency of the Government .

• If a department of Government is transferred to corporation, it would be strong factor supporting this

inference of the corporation being an instrumentality or agency of the Government .

Referring to relevant provisions of the International Airport Authority Act, 1971, whereunder the said authority was
constituted, the Court held that the tests so determined, were satisfied by the authority and thus it was observed that
International Airport Authority was an instrumentality or agency of the Government and fell within the definition
of Article 12.

WHETHER ‘STATE’ INCLUDES JUDICIARY ?

In USA it is well-settled that the judiciary is within the prohibition of the 14th Amendment. The
judiciary, it is said, though not expressly mentioned in Article 12 it should be included within the
expression ‘other authorities’ since Courts are set up by statute and exercise power conferred by law.
Judiciary in India to be included under the ambit of ‘State’ arose in the case

Rupa Ashok Hurra vs. Ashok Hurra

In this case, it was observed that "while exercising the rule making powers the judiciary is covered by
the expression state with Art.12 but while performing its judicial functions it is not so included."
Thereby a Court may be sued for a violation of the fundamental right to the extent only till it is
performing its administrative function.

Article 13 is the key provision as it gives teeth to the fundamental rights and makes them justiciable.The effect
of Article 13 is that Fundamental Rights cannot be infringed by the Government either by enacting a law or through
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administrative action. In fact, it provides for the judicial review of all laws, whether past or future. It is said to be
the charter for judicial review. This power is exercisable by the Supreme Court as well by the High Courts.

Doctrine of Void Ab Initio - Application Thereof

Fundamental rights are secured by the Constitution when it came into force on 26th January, 1950. Thus, no
fundamental right was available to the people of India prior to the commencement of the Constitution. It follows
that, as regards the acts done or transactions. completed before the commencement of the Constitution, fundamental
rights cannot be invoked and their validity cannot be determined at the touchstone of the fundamental rights, but
according to the laws which were in force at the time of the of the acts or completion of the transactions. To this
effect Clause (1) of Article 13 provides that the laws, which were valid and enforceable prior to the commencement
of the Constitution, shall become void if they are inconsistent with the fundamental rights. Those laws have not
been declared void ab initio. The effect of the commencement of the Constitution on those laws is that those laws, if
inconsistent with any fundamental right, shall become void prospectively. Hence, fundamental rights are
prospective and not retrospective in operation.
In Keshavan Madhava Menon vs. State of Bombay

DOCTRINE OF SEVERABILITY
Clauses (1) and (2) of Article 13 declare that laws inconsistent with or in contravention of the fundamental rights,
shall be void to the extent of inconsistency or contravention, as the case may be. It means that, where only a part of
the law is inconsistent with or contravenes the fundamental right, it is only that part which shall be void under
Article 13 and not the whole of the law. The Courts apply the doctrine of severability or separability to separate the
valid portion of the law from the invalid portion.

The doctrine of severability has been elaborately considered by the Supreme Court in R.M.D.C. vs.
Union of India, and the following rules regarding the question of severability has been laid down:

(1) The intention of the legislature is the determining factor in determining whether the valid part of a
statute are severable from the invalid parts.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from
the another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the
other hand, if they are so distinct and separate that after striking out what is invalid what remains is itself
a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become
unenforceable.

(3) Even when the provisions which are valid, are distinct and separate from those which are invalid if
they form part of a single scheme which is intended to be operative as a whole, then also the invalidity
of a part will result in the failure of the whole.

(4) Likewise when the valid and invalid parts of a Statute are independent and do not form part of a
Scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance
different from what it was when it emerged out of legislature, then also it will be rejected in its entirety.

(5) The severability of the valid and invalid provisions of a Statute does not depend on whether
provisions are enacted in same section or different section, it is not the form but the substance of the
matter that is material and that has to be ascertained on an examination of the Act as a whole and of the
setting of the relevant provisions therein.

(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced without
making alterations and modifications therein, then the whole of it must be struck down as void as
otherwise it will amount to judicial legislation.
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(7) In determining the legislative intent on the question of severability, it will be legitimate to take into
account the history of legislation, its object, the title and preamble of it.

Doctrine of Eclipse
In Keshavan Madhava Menon vs. State of Bombay, the Supreme Court held that a law in force before the
commencement of the Constitution if inconsistent with a fundamental right, did not become void "in toto" or for all
purposes or for all times or for all persons. Such law became void only to the extent of its inconsistency with the
fundamental right. The law became void qua persons, whose fundamental right, it violated.
It followed that the existing law, because of its inconsistency with a fundamental right, was not completely
obliterated or wiped out altogether from the Statute Book. But, such law existed for all past transactions and for
enforcement of rights and liabilities accrued before the date of the Constitution. The law continued in force even
after the commencement of the Constitution with respect to persons whose right it did not violate.

Therefore, if by an amendment of the fundamental right, enacted subsequent to the commencement of the
Constitution, the shadow cast on that law was removed, the law would get revived and operative. To achieve this
effect, Courts apply the doctrine of eclipse. The doctrine means that the inconsistent law did not become a dead law
but was eclipsed, for the time being by the fundamental right. The effect of the subsequent amendment was to
remove the shadow and to make the law free from all blemish or infirmity.

Doctrine of Waiver and Fundamental Rights

The "Doctrine of Waiver" explains that a person, entitled to a right or privilege, is free to waive that right or
privilege. It is a voluntary relinquishment or abandonment of a known existing legal right or privilege. Waiver is an
agreement between the parties ands a Party fully knowing Of its rights agrees not to assert a right for a
consideration. Once a person has so waived his right, he would not be allowed to claim it afterwards.

Definition of the terms "Law" and "Laws in Force" [Article 13(3) & (4)]
Article 13(3)(a) provides that the term law "includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law." Like the definition of the term "State" contained in
Article 12, the term "law" has been given a wide connotation. The "law" in words of justice Frankfuter, is a tool,
which is intended to provide solutions for the problems of human being, in a society. The object is to ensure that
fundamental rights should not be infringed or violated, not only by the State, its legislative or executive organs, but
also by its instrumentalities or agencies.It is to ensure that instruments, emanating from any source Of law'
permanent or temporary, legislative or judicial or any other source, pay homage to the Constitutional provisions
relating to Fundamental Rights.

Article 13(3)(b) provides that the expression "laws in force" used in Clause (1) thereof, includes "laws passed or
made by a 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." It, therefore, includes laws which were on the Statute Book, though not
in operation. The expression "laws in force" includes the laws passed by the British Parliament and applicable to
India, like the Fugitive Offenders Act, 1881.
Whether an amendment of the Constitution enacted under Article 368, would be included in the term "law"
under Article 13.
In Shankari Prasad vs. Union of India, the Court held that an amendment under Article 368 was enacted by
Parliament. in the exercise Of its constituent power, while the term "law" used in Article 13 referred to the exercise
of ordinary legislative power, conferred on Parliament by provisions of the Constitution, other than Article 368. As
a result an Amendment was held not included in the term "law" under Article 13.

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