Articles 12 and 13 - Fundamental Rights
- Legal Journey
- Oct 22
- 14 min read
Updated: Oct 26
Part 3 of the Constitution of India
Fundamental Rights
Articles 12 to 35
Articles 12 and 13
Table of Content 💻
History of Fundamental Rights:-
Part III is well known as the Magna Carta of India. The Magna Carta is the first written document relating to the fundamental rights of citizens. It was signed in the year 1215 by King John. It limited the power of the monarchy and established that even the king was subject to the law.
Then, in 1689, the bill of rights was written consolidating all important rights and liberties of the English people. The Americans were the first to give the Bill of Rights a Constitutional Status.
The idea behind including a whole part of Fundamental Rights in the Constitution of India is to preserve that which is an indispensable condition of a free society.
The aim of having a declaration of Fundamental rights is that certain elementary rights, such as, right to life, liberty, freedom of speech, etc. should be regarded as inviolable under all conditions and the shifting of majority in Legislature of the Country should not have a free hand in interfering with these Fundamental Rights.
West Virginia State Board of Education V. Barnette
- The very purpose of a Bill of Rights was to withdraw certain subjects from the purview of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts.
- One’s right to life, liberty and property, to free speech, freedom of worship and assembly and other fundamental rights may NOT be submitted to vote, they depend on the outcome of NO elections.
Q) Why are these rights Fundamental?
A) These rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status.
Q) Need for Fundamental Rights?
A) Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government.
They are limitations upon all the powers of the Government, legislative as well as executive and they are essential for the preservation of public and private rights, notwithstanding the representative character of political instruments.
Maneka Gandhi V. Union of India (1978)
- These Fundamental Rights represent the basic values cherished by the people of this Country and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.
- They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the State NOT to encroach on individual liberty in its various dimensions.
Q) Object of Fundamental Rights in the Constitution?
A) The object behind the inclusion of the Chapter of Fundamental Rights in the Indian Constitution is to establish a ‘Rule of Law’.
M. Nagaraj V. Union of India (2007)
- Individuals possess basic human rights independently of any Constitution by reason of basic fact that they are the human race.
- The Fundamental rights are NOT gifts from the State to Citizens.
- Part III does NOT confer Fundamental Rights but it confirms their existence and gives them protection.
Q) Is specific mention of a Right necessary for it to be a fundamental right?
A) To be a Fundamental Right, it is NOT necessary that a right must be specifically mentioned in a particular Article. A right may be a fundamental right if it is an integral part of a named fundamental right or partakes of the same basic nature and character as a fundamental right.
For example - Right to travel abroad, speedy trial, free legal aid, etc. are not specifically mentioned in the Constitution, but they are the Fundamental Rights guaranteed under Article 21 of the Constitution.
Q) What is the Classification of Fundamental Rights?
A) The Fundamental Rights are classified under the following six groups:
Q) Why are Articles 12 and 13 included in part 3 of the Constitution?
A) Articles 12 and 13 are included in Part 3 (Fundamental Rights) because they are crucial for defining the scope of these rights and ensuring their enforcement. Both articles are foundational for the protection of Fundamental Rights.
Article 12 defines the term "State," which is essential for determining against whom Fundamental Rights can be enforced and who is responsible for protecting these rights.
Article 13 deals with laws that are inconsistent with or violate Fundamental Rights, providing a mechanism for judicial review and ensuring the supremacy of these rights above other laws.
Q) Why are Fundamental Rights not available against private individuals?
A) Most of the Fundamental Rights are not available against private individuals because private action is sufficiently protected by the ordinary law of the Nation.
Article 12. Definition
- The State includes :-
Government and Parliament of India (Executive and Legislature of the Union), and
Government and Legislature of each State (Executive and Legislature of States), and
All local or other authorities, within territory of India, or
All local or other authorities under the control of the Government of India.
- The term ‘State’ thus includes not only legislative but also executive organs of both the Union and the States. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.
- The term “Local authorities” is defined under Section 3(31) of the General Clauses Act, 1897 to 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 general terms, local authority is any authority that works on the ground level.
- The term “Other Authorities” is however a little more complicated than that. A lot of cases need to be referred to understand this term.
University of Madras V. Santa Bai (1954 HC)
- Madras HC held that “Other Authorities” could only be interpreted by using the principle of ejusdem generis.
- Therefore, it could only mean authorities exercising governmental or sovereign functions.
- It could not include persons, natural or juristic, such as a University unless ‘maintained by the State’.
Ujjam bai V. State of U.P. (1962 SC)
- The Supreme Court rejected the restrictive interpretation of the Madras High Court.
- In Article 12 the bodies specifically named are the Government of the Union and the State, The Legislature of the Union and the States and local authorities.
- There is NO common genus running through these named bodies nor can these bodies be so placed in one single category on any rational basis.
Electricity Board, Rajasthan V. Mohan Lal ((1967 SC)
- The Supreme Court held 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 authority must be engaged in performing governmental or sovereign function.
Sukhdev Singh V. Bhagatram (1975 SC)
- Supreme Court held that if the functions of the corporation are of public importance and closely related to government functions then it should be treated as agency or instrumentality of government i.e. “State” within the meaning of Part III.
Ramana Dayaram Shetty V. The International Airport Authority of India (1979 SC)
- The Supreme Court followed the broader test laid down in the Sukhdev Singh Case and held that If a body is an agency or instrumentality of government it may be an ‘authority’ within the meaning of Article 12 whether it is a statutory corporation, a government company or even a registered society.
- The Court laid down the following test to determine whether a body is an agency or instrumentality of the State:-
Financial resources of the State is the chief funding source of the body.
Existence of deep and pervasive State control.
The functional Character of the body is governmental in essence.
The department of government is transferred to the corporation.
Whether the corporation enjoys monopoly status which is State conferred or State protected.
- The Court further held that these tests are NOT conclusive but illustrative ONLY and would have to be used with care and caution.
Q) Whether Judiciary is included in the word State?
A) It was held in the case of Naresh V. State of Maharashtra (1967 SC)
- Even if a court was a State, a writ under Article 32 could NOT be issued to a High Court of Competent Jurisdiction against its judicial orders because such orders could not be said to violate Fundamental Rights.
AR Antulay V. RS Nayak (1988 SC)
- The Supreme Court held that the court cannot pass an order or issue a direction that would be violative of the Fundamental Rights of citizens, it can be said that the expression ‘State’ as defined in Article 12 of the Constitution includes judiciary also.
These two cases have emphasised that while the judiciary is NOT a “State” when acting judicially, it is still bound by the Constitution and must uphold Constitutional Principles.
Other authorities which are State : | Which are NOT State: |
State Bank of India | Unaided Private School (Minority) |
Council of Scientific and Industrial Research (CSIR). | Institute of Constitutional and Parliamentary studies |
Children Aid Society | NCERT |
Sainik School Society | BCCI [ Zee Telefilms Ltd. V. Union of India (2005 SC)] |
Indian Council of Agriculture Research | Judiciary (Judicial function) |
State Electricity Board | Central Board of Secondary Education (CBSE) |
Life Insurance Corporation | Air India |
Oil and Natural Gas Commission | Consumer Protection society |
Finance Corporation | |
International Airport Authority | |
Council for the Indian School Examination | |
Indian Telephone Industries limited | |
State financial Corporation | |
National Agricultural Co-operative federation | |
Delhi Stock Exchange | |
Project and Equipment Corporation of India | |
Judiciary (Administrative function ) | |
National book Trust | |
All Nationalised banks | |
MAHARATNA | |
NAVRATNA | |
Central Inland Water Transport. |
Article 13. Laws inconsistent with or in derogation of the Fundamental rights
All Laws in force in the territory of India before the commencement of Constitution, inconsistent with the Fundamental Rights (Part III) shall to the extent of such inconsistency be VOID.
The State must NOT make laws that are not in consonance with the constitution and if the law drafted intervenes with an individual’s Fundamental Rights, the said law will become VOID to the extent of contravention.
(a) Law includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.(b) Laws in force includes law passed or made by the 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 areas or in particular area.
Nothing in this article shall apply to any amendment of this Constitution made under Article 368.- (Inserted by the 24th Amendment)
Q) Is Article 13 retrospective in nature?
A) Article 13 NOT retrospective in nature. All pre-constitutional laws inconsistent with the Fundamental Rights will become VOID only after the commencement of the Constitution.
- They are NOT VOID AB INITIO. Such inconsistent law is not wiped out so far as the past acts are concerned. A declaration of invalidity by the Courts will, however, be necessary to make the laws invalid.
- Article 13 provides for the ‘Judicial Review’ of all legislations in India, past as well as future.
- This power has been conferred on the High Courts and the Supreme Court of India (Article 226 and 32 respectively) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.
Doctrine of Severability or Separability
- When a part of a statute is declared unconstitutional, then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such.
- To resolve this problem, the Supreme Court has devised the 'doctrine of severability or separability’. It means if an offending provision can be separated from something which is constitutional, then only that part which is offending is to be declared as void and not the entire statute.
- The words, "to the extent of such inconsistency be void", as mentioned in Article 13 mean that when some provision of law is held to be unconstitutional, then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute.
- However, there is one exception, if a valid portion is closely mixed with an invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder, then the courts will hold the entire act void.
- Where it is not possible to separate the two, the whole law is to be struck down.
R. M. D. C v. Union of India (1957 SC)
- The Supreme Court discussed the Doctrine of Severability and held that when after removing the invalid portion what remains is a complete code then there is no necessity to declare the whole act VOID.
- The doctrine is subject to one exception.
- Sometimes, it happens that VALID and INVALID parts of the Act are so closely mixed up that they can’t be separated. Then, the whole Act has to be declared VOID.
- To know whether they are separable or not, the intention of the legislature is to be seen i.e. whether the legislature would have enacted the valid Act without enacting the VOID part.
- If the answer is yes, then it is severable and if the answer is no, then it is not severable.
Romesh Thappar V. State of Madras (1950 SC)
- The Supreme Court held that where the law authorises restrictions on Fundamental Rights which are wide enough to cover restrictions both within and without the limits provided by the Constitution and it is not possible to separate the two then the whole law is to be struck down.
Doctrine of Eclipse
- If there is an existing law which is inconsistent with the Fundamental Rights when the Constitution came into force, then it becomes inoperative from the date the Constitution came into force.
- In this situation, existing laws remain eclipsed and dormant to the extent it comes under the shadow of Fundamental Rights.
- It is dormant and eclipsed but NOT dead, and
- As soon as the eclipse is removed, the law begins to operate from the date of such removal.
Bhikaji V. State of M.P. (1955 SC)
- The Doctrine of Eclipse was formulated in this case.
- The Court held that under this doctrine, the law is overshadowed by Fundamental Right and remains dormant.
Deep Chand V. State of U.P. (1959 SC)
- The Supreme Court held that a post-constitutional law under Article 13(2), which contravenes a Fundamental Right, is nullity from its inception and a stillborn law.
- It is VOID AB INITIO.
- The Doctrine of Eclipse does NOT apply to post-constitutional laws, and therefore, subsequent amendments cannot revive it.
State of Gujarat V. Ambica Mills (1974 SC)
- The Supreme Court modified its previous views and held that a post-constitutional law, inconsistent with Fundamental Rights, was NOT nullity or non-existent in all cases and for all purposes.
- The ‘Doctrine of Absolute Nullity’ was NOT a universal rule and there were many exceptions to it.
- A post-constitutional law which took away or abridged the right conferred by Article 19, will operate as regards to non-citizens because Fundamental Rights were not available to non-citizens.
- However, such a law would become void or non-existent only against citizens because Fundamental Rights were conferred on them.
Hence, Doctrine of Eclipse is applicable to Post-Constitutional Laws as well.
Doctrine of Waiver
Q) Can a citizen waive his Fundamental Rights?
A) NO. The Doctrine of Waiver has NO application to the provision of law enshrined in part III of the Constitution.
Behram Khurshed Pesikaka V. The State of Bombay (1954 SC)
- The Supreme Court held that the Fundamental Rights are based on such principles which are embodied in the Preamble of the Indian Constitution.
- Fundamental Rights are a matter of Public Policy and the same cannot be waived.
- They are an obligation imposed upon the State by the Constitution.
- No person can relieve the State of this obligation and it is the duty of this Court to protect their rights against themselves.
Doctrine of Lifting the Veil
- To test the constitutional validity of the Act, where it is alleged that the statute violates the fundamental rights, it is necessary to ascertain its true nature and character and the impact of the Act.
- Thus, courts may examine with some strictness the substance of the legislation and for that purpose, the court has to look behind the form and appearance thereof to discover the true character and nature of the legislation.
- Its purport and intent have to be determined. In order to do so it is permissible in law to take into consideration all factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.
Q) What happens when an amending act is struck down?
A) When an amending act is struck down for want of legislative competence or for being violative of any of the Fundamental Rights, it would be unenforceable in view of the provisions under Article 13(2) of the Constitution and in such circumstances, the old Act would revive but not otherwise. This proposition of law is not applicable to subordinate legislation.
Article 13(4)
Shankari Prasad V. Union of India (1951 SC)
- The Court in this case held that the word ‘law’ in clause (2) did NOT include law made by Parliament under Article 368.
- The word ‘law’ in Article 13 must be taken to mean rules and regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of Constitutional power and, therefore, Article 13(2) did not affect amendments made under Article 368.
Sajjan Singh V. State of Rajasthan (1965 SC)
- The interpretation given in the Shankari Prasad case was followed in this case as well.
Golak Nath V. State of Punjab (1967 SC)
- The Supreme Court overruled the decision in the aforesaid cases, and held that the word ‘law’ in Article 13(2) includes every branch of law, statutory, Constitutional, etc.
- Hence, if an amendment to the Constitution took away or abridged fundamental rights of citizens, the amendment would be declared VOID.
- Doctrine of prospective overruling was introduced in this Judgement.
Following this judgment, the Constitutional 24th Amendment Act, 1971 was enacted which added clause (4) to Article 13 and clause (3) to Article 368.
Which made clear that Constitutional amendments passed under Article 368 shall NOT be considered as ‘law’ within the meaning of Article 13 and, therefore, cannot be challenged as infringing the provisions of Part III of the Constitution.
Kesavananda Bharati v. State of Kerala ( AIR 1973 SC 1461 )
- The validity of the Constitution 24th amendment act was challenged inter alia.
- This case overruled the Golak Nath case and upheld the validity of the 24th Constitutional Amendment act.
- The Parliament has the power to make amendments into any part of the Constitution, including Part III.
- However, the Parliament CANNOT while making amendments, violate the Basic Structure of the Constitution.
- Basic Structure includes those fundamental principles which represent the basic ideology and identity of India as a Nation.
- The Effect of upholding 24th Amendment was, Article 13(4) was declared valid.
- In other words, An Constitutional Amendment is NOT a law and consequently, cannot be challenged as being violative of part III.
- But, it can be challenged on the ground of it being violative of the Basic Structure of the Constitution.
Frequently Asked Questions
Q) How do fundamental rights differ from ordinary legal rights?
A) Fundamental rights differ from ordinary legal rights in several ways:
Constitutional Status: Enshrined in the Constitution itself, not ordinary legislation.
Justiciability: Can be enforced through courts, particularly through writs under Articles 32 and 226.
Supremacy: Laws inconsistent with them are automatically VOID under Article 13.
Non-Waivable: Cannot be waived even with consent (Doctrine of Waiver).
Protection from Majority: Cannot be taken away by popular vote or legislative majority.
Limited Amendment Power: Can be amended only through special constitutional amendment process and cannot violate basic structure.
Pre-Existing Nature: Not created by the Constitution but merely recognized and confirmed.
Q) Why is the definition of "State" important?
A) The definition of "State" is crucial because most fundamental rights (particularly Articles 14 to 18) are enforceable primarily against entities that qualify as "State" under Article 12. However, certain rights like Articles 15(2), 17, 21, 23, and 24 are also enforceable against private individuals.
Q) What is the difference between Article 13(1) and Article 13(2)?
A) Article 13(1) applies to pre-constitutional laws (before 1950) that become void from Constitution's commencement.
Article 13(2) applies to post-constitutional laws (after 1950) that are void ab initio (from the beginning).
Q) Why are fundamental rights called "inviolable"?
A) Fundamental rights are "inviolable" because they are sacrosanct and CANNOT be violated under any conditions.
They represent elementary rights essential for a free society, protected regardless of political majorities.
Q) Can Parliament amend fundamental rights?
A) Yes, Parliament can amend fundamental rights through Article 368.
However, as per Kesavananda Bharati (1973), such amendments CANNOT violate the basic structure of the Constitution.
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