2.2 Article 12 'State' Definition, Article 13 & Judicial Review Doctrines (Severability, Eclipse, Waiver)

2.2 Article 12 'State' Definition, Article 13 & Judicial Review Doctrines (Severability, Eclipse, Waiver)

[!NOTE] Exam Perspective: In the Maharashtra Judicial Service Civil Judge & JMFC Examination, questions on Articles 12 and 13 are foundational. Candidates are regularly tested on the evolving judicial tests defining 'the State', the Amenability of statutory corporations and private bodies to writ jurisdiction, the exact operation of the Doctrine of Eclipse on pre- versus post-constitutional laws, and the landmark five-stage constitutional conflict over whether constitutional amendments constitute 'law' under Article 13(2).

Fundamental Rights guaranteed under Part III of the Constitution are enforceable primarily against public power. Article 12 serves as the constitutional gatekeeper, defining against whom Part III rights can be asserted. In tandem, Article 13 provides the structural bulwark of judicial review, declaring all laws void to the extent of their repugnancy to Fundamental Rights.

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Article 12: The Four-Tier Definition of 'the State'

Article 12 provides:

"In this Part, unless the context otherwise requires, 'the State' includes—

1. The Government and Parliament of India;
2. The Government and the Legislature of each of the States;
3. All local authorities within the territory of India or under the control of the Government of India; and
4. Other authorities within the territory of India or under the control of the Government of India."

1. Local Authorities

Under Section 3(31) of the General Clauses Act, 1897, a "local authority" refers to a municipal committee, district board, body of port commissioners, panchayat, 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 v. R.C. Jain ((1981) 2 SCC 308), the Supreme Court laid down that to qualify as a local authority, an entity must possess:
  1. Separate legal existence as a corporate body;
  2. Operation in a defined local area;
  3. Autonomy in carrying out duties;
  4. Entrustment with governmental/municipal functions;
  5. Statutory power to raise funds by levying taxes, cess, or fees.

2. The Evolution of 'Other Authorities'

The phrase "other authorities" has been the focal point of dynamic constitutional interpretation:

                     EVOLUTION OF 'OTHER AUTHORITIES'
                     
  Shantha Bai (1954)       ───> Ejusdem Generis applied (Narrow governmental genus)
                                              │ [REJECTED]
  Ujjammabai (1962)        ───> Ejusdem Generis REJECTED (No distinct genus in Art 12)
                                              │
  Mohan Lal (1967)         ───> Statutory Authority Test (Power to give binding directions)
                                              │
  Sukhdev Singh (1975)     ───> Statutory Corporations (Rules carry force of law: ONGC, LIC)
                                              │
  IAAI (1979)              ───> Agency / Instrumentality of State (Multi-factor test)
                                              │
  Ajay Hasia (1981)        ───> 6-Factor Test for Societies / Companies (Engineering College)
                                              │
  Pradeep Biswas (2002)    ───> 7-Judge Benchmark: Deep, pervasive financial, functional,
                                and administrative governmental domination (CSIR = State)

• Rejection of Ejusdem Generis: In University of Madras v. Shantha Bai (AIR 1954 Mad 67), the Madras High Court held that 'other authorities' must be interpreted ejusdem generis with the preceding bodies (performing sovereign/governmental functions). The Supreme Court decisively overruled this narrow approach in Ujjammabai v. State of U.P. (AIR 1962 SC 1621), holding that the bodies enumerated in Article 12 share no common genus.
• Statutory Power Test: In Rajasthan State Electricity Board v. Mohan Lal (AIR 1967 SC 1857), the Supreme Court held that 'other authorities' includes all statutory authorities created by statute and endowed with powers to give directions the disobedience of which is punishable, even if engaged in commercial activity.
• Statutory Corporations: In Sukhdev Singh v. Bhagatram (AIR 1975 SC 1331), statutory corporations including the Oil and Natural Gas Commission (ONGC), Life Insurance Corporation (LIC), and Industrial Finance Corporation (IFC) were held to be 'State' because their statutory regulations carry the force of law.
• The Agency or Instrumentality Test: In Ramana Dayaram Shetty v. International Airport Authority of India (IAAI) ((1979) 3 SCC 489), Justice P.N. Bhagwati propounded the doctrine that where a corporation is an instrumentality or agency of government, it must be subject to the same constitutional limitations as the government itself.
• The Six-Factor Test in Ajay Hasia: In Ajay Hasia v. Khalid Mujib Sehravardi ((1981) 1 SCC 722), a Constitution Bench consolidated the IAAI principles into six definitive criteria to hold that a registered society (Regional Engineering College, Srinagar) was 'State':
  1. The entire share capital of the corporation is held by the Government;
  2. Financial assistance of the State is so large as to meet almost entire expenditure;
  3. The corporation enjoys monopoly status conferred or protected by the State;
  4. Deep and pervasive State control;
  5. Functions of public importance closely related to governmental functions; and
  6. Transfer of a government department to the corporation.

The Modern 7-Judge Bench Benchmark: Pradeep Kumar Biswas

In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology ((2002) 5 SCC 111), a 7-Judge Constitution Bench overruled the earlier decision in Sabhajit Tewary v. Union of India ((1975) 1 SCC 485) and established the authoritative modern test for determining 'State' status:

To qualify as an instrumentality under Article 12, the entity must be financially, functionally, and administratively dominated by or under the pervasive control of the Government. Mere statutory incorporation, government grant-in-aid, or regulatory supervision is insufficient.

Applying this refined test, the Supreme Court in Zee Telefilms Ltd. v. Union of India ((2005) 4 SCC 649) held that the Board of Control for Cricket in India (BCCI) is not 'the State' under Article 12 because it is neither financially, functionally, nor administratively dominated by the Government. However, because it discharges public functions, it remains amenable to the writ jurisdiction of High Courts under Article 226.

Is the Judiciary 'the State' Under Article 12?

This is a classic question in the Maharashtra Judicial Service examination:

• Administrative Capacity: When High Courts or the Supreme Court exercise administrative powers (e.g., appointing judicial staff, framing employment regulations under Article 146 or Article 229), they act as 'State' and are fully amenable to Part III writ scrutiny.
• Judicial Adjudication: In Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1), a 9-Judge Bench held that an order passed by a competent court in the exercise of judicial functions cannot be said to violate fundamental rights. A writ of certiorari under Article 32 cannot lie against orders of the High Court.
• Correction of Errors: In A.R. Antulay v. R.S. Nayak ((1988) 2 SCC 602), a 7-Judge Bench clarified that superior courts have an inherent duty ex debito justitiae to correct any direction passed per incuriam that violates fundamental rights or principles of natural justice.

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Article 13: The Shield of Judicial Review

Article 13 is the constitutional engine of judicial review, declaring void all primary and subordinate legislation inconsistent with Fundamental Rights.

                         ARTICLE 13 ARCHITECTURE
                         
  Article 13(1) ───> Pre-Constitutional Laws   ───> Void to extent of repugnancy
                                                   (Doctrine of Eclipse applies)
                                                   
  Article 13(2) ───> Post-Constitutional Laws  ───> Inconsistent laws VOID AB INITIO
                                                   (State shall not make such laws)
                                                   
  Article 13(3) ───> Broad Definitions        ───> "Law": Ordinance, order, bye-law,
                                                           rule, regulation, notification,
                                                           custom or usage
                                               ───> "Laws in force"
                                               
  Article 13(4) ───> Amending Power Exemption  ───> Nothing in Art 13 applies to
                                                   amendments under Article 368
                                                   (Subject to Basic Structure)

The Three Doctrines of Article 13

1. Doctrine of Severability (Separability)

Article 13 does not render an entire enactment invalid merely because certain clauses violate fundamental rights. The phrase "to the extent of such inconsistency" mandates that if the unconstitutional provisions can be cleanly severed from the valid provisions, only the invalid provisions perish while the valid provisions remain law (R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628).

• The Severability Test: If, after excising the invalid part, the remainder forms a complete, workable code that reflects the independent legislative intent, it is upheld. If the valid and invalid parts are so inextricably intertwined that one cannot survive without the other, the whole statute falls (A.K. Gopalan v. State of Madras, AIR 1950 SC 27).

2. Doctrine of Eclipse

Article 13(1) does not render inconsistent pre-constitutional laws null and void ab initio. Rather, the pre-constitutional law remains intact but becomes dormant, overshadowed or 'eclipsed' by the paramount fundamental right (Bhikaji Narain Dhakras v. State of M.P., AIR 1955 SC 781).

• Removal of the Shadow: If a subsequent constitutional amendment removes the constitutional conflict, the pre-constitutional statute revives automatically and becomes fully operative without requiring fresh re-enactment by the legislature.
• Crucial Limitation (Pre vs. Post-Constitutional Laws): In Deep Chand v. State of U.P. (AIR 1959 SC 648) and Mahendra Lal Jaini v. State of U.P. (AIR 1963 SC 1019), the Supreme Court held that the Doctrine of Eclipse applies strictly to pre-constitutional laws under Article 13(1). A post-constitutional law enacted in violation of Article 13(2) is stillborn (void ab initio) due to lack of legislative competence and cannot be revived by a subsequent constitutional amendment.

3. Doctrine of Waiver

Can an individual citizen voluntarily surrender or waive a Fundamental Right? In Basheshar Nath v. Commissioner of Income Tax (AIR 1959 SC 149), the Supreme Court laid down that Fundamental Rights cannot be waived by any person in India. Fundamental Rights are constitutional commands enacted not merely for individual benefit, but as cardinal principles of public policy designed to protect democratic society as a collective whole.

Is a Constitutional Amendment 'Law' Under Article 13(2)?

The epic confrontation between parliamentary amending power under Article 368 and judicial review under Article 13(2) unfolded across five milestone stages:

1. Sankari Prasad Singh Deo v. Union of India (AIR 1951 SC 458): The 1st Amendment Act, 1951 was challenged. A 5-judge bench held that 'law' in Article 13(2) denotes only ordinary legislative enactments, not constituent amendments made under Article 368.
2. Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845): Upheld the 17th Amendment Act, 1964, reaffirming the Sankari Prasad ratio.
3. I.C. Golaknath v. State of Punjab (AIR 1967 SC 1643): An 11-Judge Constitution Bench by a 6:5 majority overruled Sankari Prasad and Sajjan Singh. Chief Justice Subba Rao held that a constitutional amendment under Article 368 is 'law' within the meaning of Article 13(2), and Parliament has no competence to take away or abridge any of the Fundamental Rights in Part III.
4. The 24th Amendment Act, 1971: In response to Golaknath, Parliament inserted Article 13(4) and Article 368(3), expressly providing: "Nothing in this article shall apply to any amendment of this Constitution made under article 368."
5. Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225): A 13-Judge Constitution Bench upheld the validity of the 24th Amendment, confirming that constituent amendment is distinct from ordinary legislation. However, the Court established that Article 368 does not enable Parliament to alter the Basic Structure of the Constitution.
6. Minerva Mills Ltd. v. Union of India ((1980) 3 SCC 625): Struck down clauses (4) and (5) of Article 368 (inserted by the 42nd Amendment) which attempted to confer unlimited amending power on Parliament, reaffirming that a limited amending power is itself a basic feature of the Constitution.

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