Unit 3

Concept of State, Instrumentality of State, Constitutional Limitations

Presented by:
Dr. Daksha Sharma
Assistant Professor (Law)
School of Law, Bennett University,
Times of India Group, Greater Noida, Delhi (NCR)
 Article 12
• According to Art. 12, State includes the following:
1. The Government and Parliament of India
2. The Government and the Legislature of each
State
3. All local or other authorities within the territory
of India
4. All local and other authorities under the control
of the Government of India
 Article 12 (Cont…)
• Authorities- It means a person or body exercising
power to command.
• Local Authorities- S. 3 (31) of the General Clauses Act:
It refers to authorities like Municipalities, District
Boards, Panchayats and the Mining Settlement Boards.
• Other Authorities
- University of Madras v. Santa Bai, AIR 1954 Mad 67: It
comprises of authorities exercising governmental or
sovereign functions.
 Article 12 (Cont…)
- Electricity Board Rajasthan v. Mohan Lal, AIR
1967 SC 1857: Other authorities include
Rajasthan Electricity Board, Co-operative
Society etc. which have the power to make
laws under Co-operative Societies Act, 1911.

- Umesh v. V.N.Singh, AIR 1968 Pat 3: Held that,

Patna University is a state.
 Article 12 (Cont…)
- Airport Authority’s Case, AIR 1979 SC 1628,
[Ramana Dayaram Shetty v. The International
Airport Authority of India]
Following tests have been laid down to
determine whether whether a body is an agency
or instrumentality of the Government-
1. Financial Resources of the State is the chief
funding source
2. Existence of deep and pervasive state control
 Article 12 (Cont…)
3. Functional character being governmental in
essence
4. Whether the corporation enjoys a monopoly
status which is state conferred.
- Tekraj Vasandi v. Union of India, (1988) 1 SCC
236: Institute of Constitutional and
Parliamentary Studies is not a state within the
meaning of Art. 12.
 Article 12 (Cont…)
• Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487
- Share Capital
- Financial Assistance given by the government
- Existence of deep and pervasive State control
- Functions performed by the body are of public
importance.
 Article 12 (Cont…)
- Chandra Mohan Khanna v. NCERT, AIR 1992 SC
76: NCERT is not a ‘State’ within the meaning of
Article 12.
• Is Judiciary included in the word ‘State’?
- Naresh v. State of Maharashtra, AIR 1967 SC 1
Held, that even if a Court is the state a writ under
Art. 32 cannot be issued to a High Court against
its judicial orders because such orders cannot be
said to violate the fundamental rights.
 Article 12 (Cont…)
- Jurists like H.M.Seervai, V.N.Shukla consider
judiciary to be State. Their view is supported by
Articles 145 and 146 of the Constitution of India.
( i ) The Supreme Court is empowered to make
rules for regulating the practice and procedure of
Courts.
( ii ) The Supreme Court is empowered to make
appointments of its staff and servants; decide the
its service conditions.
 Article 12 (Cont…)
- In A.R.Antulay v. R.S.Nayak, AIR 1988 SC 1531
 , it has been observed that when rule making
power of judiciary is concerned it is State but
when exercise of judicial power is concerned it
is not State.
 Article 12 (Cont…)
- National Federation of the Blind, Maharashtra & Anr v. The High Court of
Judicature of Bombay 2018 SCC Online Bom 931
 Judgment:
1. On the Respondent's contention regarding applicability of the provisions
of Act of 2016, the Court held that it was not consistent with the
administrative decisions taken by the Respondent.

2. That the judgments of the High Court and the Supreme Court cannot be
subjected to writ jurisdiction and for want of requisite governmental
control, judiciary cannot be a State under Article 12, the Court held
that while acting on the judicial side the Courts are not included in the
definition of the State. Only when they deal with their employees or act in
other matters purely in administrative capacity, the Courts may fall within
the definition of the State for attracting writ jurisdiction against their
administrative actions only.
 Article 12 (Cont…)
- Unni Krishnan v. State of Andhra Pradesh, AIR
1993 SC 2178
Held, that the private educational institution
even if it is recognised by, or affiliated to a
university cannot be regarded as an
instrumentality of the government for the
purposes of Art. 12.
 Article 12 (Cont…)
• For identification of ‘Authorities’, the Court
has laid down the following proposition:
- Whether 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.
 Article 12 (Cont…)
• Local Authorities
- Unit of local self- government
- Eg: Delhi Development Authority
- Calcutta State Transport Corporation v.
Commr. Of Income Tax, West Bengal, AIR 1996
SC 1316: Held that Corporation is not a local
authority.
 Article 12 (Cont…)
• Horizontal v. Vertical Application of Fundamental
Rights
• The instance of it horizontal applicability can be seen
in case Consumer Education and Research Centre v
Union of India, 1995 SCC (3) 42 where the court held
that right of the employees to health lies against
private employer.
• Private actors are bound by this decision and
direction under Article 32 of the Indian Constitution. 
 Article 12 (Cont…)
• The Supreme Court in many places has deliberately
divided the private public sphere into writ petition and
PIL which create a bar on private individual to enforce
rights which led to lessening of effect of fundamental
right in private sphere.
• Privacy rights- According to Indian constitution the
right to privacy can be enforced only against the
government.
• If Indian legal system any how adopts the horizontal
application of Fundamental Right then it have to face
many problems like it will increase the flood gate of
cases in courts.
 Article 12 (Cont…)
• Karmanya Singh Sareen v. Union of India, 2016 : The
WhatsApp-Facebook privacy case
- Judgement delivered by the High Court of Delhi is that the
contention of the Petitioners that the proposed change in the
Privacy Policy of WhatsApp amounts to infringement of the
Right to Privacy guaranteed under Article 21 of the Constitution
of India.
- Be that as it may, since the terms of service of “WhatsApp” are
not traceable to any statute or statutory provisions, it appeared
that the issue sought to be espoused in the present petition is
not amenable to the writ jurisdiction under Article 226 of the
Constitution of India.
 Article 12 (Cont…)
- However, the judgment directed that:
1. The information/ data and details of non-existent
members as of 25/09/2016 shall be deleted and,
2. The information of existing members up to
25/09/2016 shall not be shared with the
Facebook thereof.
3. And directed the state and TRAI to make a
regulatory framework for the working of such
applications like WhatsApp at earliest.
 Article 12 (Cont…)
• A Special Leave Petition was filed with the Supreme Court seeking
the following issues to be considered by petitioners.
- whether the privacy policy infringes the right to privacy of its user
groups, 
- whether the failure of the user to share their data with Facebook
is impermissible, 
- whether the way in which Whatsapp obtains user assent is
misleading, and
- the Internet networking systems that allow users to share
text/audio/video messages, data and render audio/video calls
constitute ‘telecommunication’ systems and are subject to
regulation by the competent authorities?
 Article 12 (Cont…)
• On 17th March 2017, facebook duly filed the affidavit
stating the following reasons as to why the petition is not
maintainable against them-
- A consensual contract.
- Facebook and WhatsApp are private entities and are thus
not subject to the jurisdiction of the High Court.
Consequently, this Special Leave Petition is therefore not
preserved as it is the product of that writ petition only. 
- WhatsApp assures the confidentiality of messages with the
support of “End to End Encryption” and hence neither
Facebook nor WhatsApp has access to information.
 Article 12 (Cont…)
• Article 12 and the Company
- Som Prakash v. Union of India, AIR 1981 SC
212
 The Company was held to fall under Art. 12.
 The key factor was “the brooding presence of
the state behind the operations of the body,
statutory or other.”
 Article 12 (Cont…)
- A company enjoying the monopoly of carrying
on a business under an Act of Legislature has
the “trappings” of state and is an authority
under Art.12
 Article 12 (Cont…)
• Some non-statutory bodies which have been
held to be ‘authorities’ within the meaning of
Art. 12 are:
1. The Council for the Indian School Certificate
Examinations
2. An aided school receiving 95% of its expenses
by way of government grant and subject to
regulations made by the department of
education.
 Article 12 (Cont…)
3. The Indian Council of Agricultural Research
4. Government Companies, in which the
Government holds 51% share capital.
5. Regional Rural Banks
6. Sainik School Society
 Article 12 (Cont…)
7. The Children’s Aid Society
8. National Agricultural Cooperative Federation
of India (NAFED)
9. Projects and Equipment Corp. of India
10. U.P. State Co-operative Land Development
Bank Ltd.
 Article 13
• Laws inconsistent with the Fundamental Rights
- Art. 13 (1): All pre-Constitution laws shall be
void to the extent of their inconsistency with
the Fundamental Rights.
- Art. 13 (2): The state shall not make any law
which abridges the Fundamental Rights and a
law contravening a Fundamental Right is, to the
extent of contravention is void.
 Article 13 (Cont…)
- Art. 13 deals with the statute law and not with the law declared by the
courts or with the directions or orders made by the Supreme Court
under Art. 142.
• ‘Law’ under Article 13 (3)
In this article, unless the context otherwise requires
a) law includes any Ordinance, order, bye law, rule, regulation,
notification, custom or usages having in the territory of India the force
of law;
b) 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
 Article 13 (Cont…)
- Following have been held to be ‘law’ under Art. 13
1. Custom or a Usage
2. An Administrative order
3. Bye-laws of a municipal or a statutory body
4. Notification or an order under a Statute
5. Regulation made by a Statutory Corporation
• Personal Laws
- Ahmedabad Women Action Group v. Union of India,
AIR 1997 SC 3614
 Article 13 (Cont…)
- PIL was filed to declare the Muslim Personal
Law which allows polygamy as void as offending
Arts. 14 and 15. The Court refused to take
cognizance of the matter.
• Custom
- Gazula Rama Rao v. State of Andhra Pradesh,
AIR 1961 SC 564: If there is a custom which has
been recognised by law, that custom must yield
to a Fundamental Right.
 Article 13 (Cont…)
• Art. 13 (4): Nothing in this article shall apply to any
amendment of this Constitution made under Article
368.
• Is Constitutional Amendment a ‘law’ under Article 13
(2)?
- Shankari Prasad v. Union of India, AIR 1951 SC 458: First
Amendment Act, 1951 was challenged.
Held that the word ‘law’ in clause (2) did not include
law made by the Parliament under Art. 368.
- Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
 Article 13 (Cont…)
• Golak Nath v. State of Punjab, AIR 1967 SC
1643: Held, that the word ‘law’ in Article 13
(2) included every branch of law and hence, if
an amendment to the Constitution took away
the fundamental right of the citizens, the
amendment would be declared void.
 Article 13 (Cont…)
• Issues before the Court 
The issue which came before the court was
whether the parliament has the absolute
power and the power to amend the
fundamental rights enshrined under the
constitution or not?
 Article 13 (Cont…)
• Contention of the parties : Petitioner’s arguments
1. No one can change or can try to bring change in the constitution of
India.
2. The word “amendment” in question only implies a change in
accordance with the basic structure but not altogether a new idea.
3. The fundamental rights enshrined under part III of the constitution
cannot be taken away by the parliament.
4. Article 368 defines the procedure for amending the constitution
and does not give the power to the parliament to amend the
constitution.
5. Article 13(3)(a) in its definition of “law” covers all types of law i.e.
statutory and constitutional etc.
 Article 13 (Cont…)
• Respondent’s arguments 
1. Constitutional amendment is a result of the
exercise of its sovereign power.
2. Constitution to be flexible in its nature.
3. No such thing of basic structure and non-basic
structure.
4. All the provisions are equal and of equal
importance. There is no hierarchy in the
constitutional provisions. 
 Article 13 (Cont…)
• Judgment
The majority said that the parliament has no
right to amend the fundamental rights. 
• Constitution (24th Amendment) Act, 1971 –
Art. 13(4) was added- constitutional
amendments passed under Art. 368 shall not
be considered as ‘law’ within the meaning of
Art. 13
 Article 13 (Cont…)
- The Parliament in order to remove any kind of
ambiguity added clause 3 to Article 368 which reads
as follows, “Nothing in article 13 shall apply to any
amendment made under this article.”
- Article 368 was amended and the word power was
added in the Marginal Note.
- The Parliament tried to draw a distinction between
the procedure in an amendment and an ordinary
law through an amendment in Article 368(2).
 Article 13 (Cont…)
• Kesavananda Bharati v. State of Kerala, AIR
1973 SC 1461
- Validity of (24th Amendment) Act, 1971 was
considered by the Supreme Court.
- The Court overruled the Golak Nath Case and
upheld the validity of such amendment.
 Article 13 (Cont…)
• Petitioner’s contentions
- The Parliament cannot exercise its power to amend
the constitution by changing its basic structure
- Fundamental Rights are rights available to citizens
of India to ensure freedom and if any Constitutional
amendment takes away such right then the
freedom which is ensured under the Constitution to
its citizens will be deemed to be taken away from
them.
 Article 13 (Cont…)
• Respondent’s Contention
- The State contended that Supremacy of
Parliament is the basic principle of the Indian
Legal System and so the Parliament has the
power to amend the Constitution unlimitedly. 
 Article 13 (Cont…)
• Judgment
- It was held by the apex court by a majority of
7:6 that Parliament can amend any provision
of the Constitution to fulfill its socio-economic
obligations guaranteed to the citizens under
the Preamble subject to the condition that
such amendment won’t change the basic
structure of the Indian Constitution.
 Article 13 (Cont…)
• 42nd Amendment Act, 1976 and Article 368:
- 42nd Amendment Act, 1976 was passed by the
Parliament soon after.
- Amendment added clause 4 and clause 5 to Article 368.
- Article 368(4) provided that no Constitutional
Amendment shall be called in any court on any ground.
- Article 368(5) provided that there shall be no limitation
whatsoever on the constituent power of the
Parliament.
 Article 13 (Cont…)
• Minerva Mills V. Union of India (AIR 1980 SC
1789)

Supreme Court struck down clauses (4) and (5)

of Article 368 inserted by the 42nd
amendment. Limitation on the amending
power of the Parliament is a part of the Basic
Structure explained in Kesavananda’s case.
 Article 13 (Cont…)
• Unconstitutionality of a Statute
- Void Statute is unenforceable, non-est and
devoid of any legal force.
- Art. 13 (1) is prospective and not
retrospective.
- A law inconsistent with the Fundamental Right
is not void as a whole, it is void only to the
extent of inconsistency.
 Doctrine of Severability
• The Doctrine of Severability means that when
some particular provision of a statute offends
or is against a constitutional limitation, that
provision is severable from the rest of the
statute, only that offending provision will be
declared void by the Court and not the entire
statute.
 Doctrine of Severability
• The 'Doctrine of Severability' in Article 13 of the
Constitution of India can be understood as follows:
- Article 13 (1) validates all Pre-Constitutional Law and,
thereby, declares that all Pre-Constitutional laws in force
before the commencement of the Constitution of India
shall be void, if they are inconsistent with the fundamental
rights.
- Article 13 (2) mandates the State that it shall not make any
law which takes away or abridges the fundamental rights
conferred in Part III of Constitution of India and any law
contraventions this clause shall be void.
 Doctrine of Severability
• Nordenfelt Vs. Maxim Nordenfelt Guns & Ammunition
Company Ltd, 1894
• Salient Features of the Doctrine
- Widens the Scope for Judicial Review on Unconstitutional
Parts of any Law
- Enables the Supreme Court and High Court to interpret laws
and to review the pre-constitutional and existing laws
through a contemporary approach of law.
- The Parliament and State Legislatures are restrained from
enacting laws that may curtail the fundamental rights
guaranteed for the citizens of the country.
 Doctrine of Severability
• Doctrine of Severability makes the law void ab initio. 
• R.M.D.C. Vs. Union of India, AIR 1957 SC 628]

“The doctrine of severability rests, as will presently be shown, on a

presumed intention of the legislature that if a part of a statute
turns out to be void, that should not affect the validity of the rest
of it, and that that intention is to be ascertained from the terms of
the statute. It is the true nature of the subject-matter of the
legislation that is the determining factor, and while a classification
made in the statute might go far to support a conclusion in favour
of severability, the absence of it does not necessarily preclude it.”
 Doctrine of Severability
The Supreme Court laid down the following propositions:
1. The Intention of the legislature is the determining factor
whether the valid part of a law is severable from the
invalid parts
2. If the valid and invalid portion of an act is closely
amalgamated in a way that it cannot be separated, the
invalidity of a portion may result in invalidity of the entire
Act.
3. On the other hand, if they are so distinct and separable
after striking out the invalid portions of an Act, it becomes
enforceable.
 Doctrine of Severability
4. Courts would be reluctant to declare a law invalid
or ultra vires on account of unconstitutionality.
5.Courts would accept an interpretation, which
would be in favour of constitutionality rather than
the one which render the law unconstitutional.
6. Courts cannot change the essence of the law and
create a new law which in its opinion is more
desirable.
 Doctrine of Severability
• A. K. Gopalan Vs. State of Madras, AIR 1950 SC 27
The Supreme Court held that only the
unconstitutional provision of the challenged Act
will be void according the Doctrine of Severability.
Section 14 of the Preventive Detention Act was
declared unconstitutional and void. The Section 14
was severed and every other sections of the
Preventive Detention Act, 1950 remained
constitutionally valid.
 Doctrine of Severability
• Burden of the Proof
- On the person who brings the matter to the
Court and alleges that the said Statute violates
the Fundamental Right.
 Doctrine of Severability
• What happens if the Supreme Court declares
any Law as Unconstitutional?
- Operates as ‘Judgment in rem’.
 Doctrine of Eclipse
• The doctrine of eclipse envisages fundamental
rights as prospective in nature.
• It states that a pre-constitutional law
inconsistent with the fundamental rights is not
a nullity or void ab initio but only remains
unenforceable i.e., remains in a dormant state.
• The doctrine only applies to pre-constitutional
laws that were valid at their inception.
 Doctrine of Eclipse
• Bhikaji v. State of Madhya Pradesh, AIR 1955 SC
781
- Legal Provisions of C.P. and Berar Motor Vehicles
(Amendment) Act, 1947 became inconsistent with
Art. 19 (1)(g) when Constitution came into force.
- The Doctrine of Eclipse means that a pre-
Constitution law inconsistent with a Fundamental
Right was not wiped out altogether.
 Doctrine of Eclipse
• This doctrine is applicable only to the pre-
Constitution laws.
• Difference between Art. 13 (1) and Art. 13 (2)
• Operation of laws inconsistent with the
fundamental rights wrt citizens and non-citizens.
• P.L. Mehra v. D.R. Khanna, AIR 1971 Del.1
- When a post-Constitution law is held inconsistent
with a Fundamental Right, can it be revived by
amending the Act in question?
 Doctrine of Eclipse
• Shama Rao case, AIR 1967 SC 1480
- An Act was challenged on the ground of
excessive delegation.
- Held, the whole Act should be re-enacted.
 Doctrine of Waiver
• Behram v. State of Maharashtra, AIR 1955 SC 123
- Held, Doctrine of Waiver has no application in case of
Fundamental Rights.
• Views expounded by the Judges wrt waiver of Fundamental
Rights
1. Art. 14 cannot be waived.
2. None of the Fundamental Rights can be waived by a person.
3. As per Basheshar Nath v. I.T. Comissioner, AIR 1959 SC 149, it is
now an established proposition that an individual cannot waive
any of his fundamental rights.
 Doctrine of Waiver
• Olga Tellis v. Bombay Municipal Corporation,
AIR 1986 SC 180
“The high purpose which the Constitution
seeks to achieve by conferment of
fundamental rights is not to benefit the
individual but to secure the larger interests of
the community.”
 Doctrine of Waiver
• Nar Singh Pal v. Union of India, (2000) 3 SCC
589
“Fundamental Rights under the Constitution
cannot be bartered away. They cannot be
compromised nor can there be any estoppel
against the exercise of Fundamental Rights
available under the Constitution.”
THANK YOU