LBR Law College: Law College in Varanasi

Definition of State for enforcement of Fundamental Rights UNIT I SEM II

Part III of the Constitution deals with Fundamental Rights of the individuals which cannot be encroached by the state or authorities. If any such violation occurs the individual is free to move court for preserving its rights.
according to Dr Ambedkar, the object of fundamental rights is twofold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority; the word ‘authority’ means – upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village Panchayats and taluk boards, in fact every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws.

Definition of State U/A 12

Article 12 defines the term ‘State’ as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term ‘State’ includes the following;-

1.The Government and Parliament of India, i.e., Executive and Legislature of the Union.
2.The Government and Legislature of each State, i.e., Executive and Legislature of State..
3.All local and other authorities within the territory of India.
4.All local and other authorities under the control of the Government of India.

            The term ‘State’ thus includes executives as well as the legislative organs of the Union and States. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights. Executive and legislature of Union and states include union and state governments along with Parliament and State legislatures. The President of India and Governors of states can also be referred as ‘State’ as they are a part of the executive. The term ‘government’ also includes any department of government or any institution under its control. The Income Tax Department and the International Institute for Population Sciences could be cited as examples.

a) Authorities – According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. In the context of Article 12, the word “authority” means the power to make laws, orders, regulations, bye-laws, notification etc. which have the force of law and power to enforce those laws.

b) Local Authorities – ‘Local authorities’ as defined in Section 3 (31) of the General Clause Act refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trust and Mining Settlement Boards. In Mohammed Yasin v. Town Area Committee, the Supreme Court held that the bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an order by a State authority contravened article 19 (1) (g). these bye-laws I effect and in substance have brought about a total stoppage of the wholesale dealer’s business in the commercial sense. In Sri Ram v. The Notified Area Committee, a fee levied under Section 29 of the U.P. Municipalities Act, 1919, was held to be invalid.

c) Other authorities – In Article 12 the expression ‘other authorities’ is used after mentioning a few of them, such as, the Government, Parliament of India, the Government and Legislature of each of the State and all local authorities. In University of Madras v. Santa Bai, the Madras High Court held that ‘other authorities’ could only mean authorities exercising governmental or sovereign functions. It cannot include persons, natural or juristic, such as, a University unless it is ‘maintained by the State’.

‘Local authorities’, as used in the definition, refers to municipalities, Panchayats or similar authorities that have the power to make laws & regulations and also enforce them. The expression ‘Other authorities’ could refer to any entity that exercises governmental or sovereign functions.In Electricity Board, Rajasthan v. Mohan Lal, 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 statutory authority should be engaged in performing governmental or sovereign function.

Over the period of time, the Supreme Court has explained the ambit of ‘State’ to include Corporation such as LIC and ONGC since they perform tasks “very close to governmental or sovereign functions.” In fact, the term ‘State’ also accommodates any authority that is created by the Constitution of India and has the power to make laws. It need not perform governmental or sovereign functions. Executive and legislature of Union and states include union and state governments along with Parliament and State legislatures. The President of India and Governors of states can also be referred as ‘State’ as they are a part of the executive. The term ‘government’ also includes any department of government or any institution under its control. The Income Tax Department and the International Institute for Population Sciences could be cited as examples.

Is judiciary included in the definition of state ? : Although there is no specific mention of judiciary in Article 12, legal experts are of the opinion that the judiciary should be included in the definition of State. As far as power of making rules, the Supreme Court and even High Court has the power to make rules (to regulate practice & procedure of courts), appoint its staff and decide its service conditions (as mentioned in Article 147 and 146 of the Indian Constitution). Hence, it perform the role of a State.

The extended interpretation of the definition of the term ‘State’ is limited in its application only to Part III and Part IV and it does not extend to the other provisions of the Constitution, e.g., Article 309, 310, 311, which find a place in Part XIV. Therefore, an employee of a Statutory Corporation can claim the protection of Fundamental Rights but cannot seek the safeguards contained in Article 311 for the civil servants of the State.

               Ajay Hasia etc. Vs. Khalid Mujib Sehravardi & ors. etc.  1981 AIR 487, 1981 SCR (2) 79- In this case it was established that there was no rigid set of principles. The  majority ruled in this case that the question in each case would be – “whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of Government. Such control must be particular to the body in question and must be pervasive. Thus, not all Statutory Bodies can be termed as ‘State’. 
Doctrine of eclipse

It is a doctrinal principle that advocates the concept of fundamental rights being prospective. If any law made by the Legislature is inconsistent with Part III of the Constitution, then that law is invalid and inoperative to the extent of it being overshadowed by the Fundamental Rights. The Doctrine of Eclipse states that any law which is inconsistent with fundamental rights is not totally invalid or dead. Rather, it is overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional amendment.

In Bhikhaji v. State of M.P., AIR 1955 S.C. 781 case, the provisions of C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1)(g) (freedom of practicing any profession ..)of the Constitution.

However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorize the Government to monopolize any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal. Effect of eclipsing is only against the citizens that they remain in a dormant or moribund condition but they remain in operation as against non citizens who are not entitled to FR.

In Golak Nath v. State of Punjab (1967) case, the family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar, Punjab, In the phase of the 1953 Punjab Security and Land Tenures Act, the state government held that the brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared ‘surplus’. This was challenged by the Golak Nath family in the courts and the case was referred to the Supreme Court in 1965. The family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their constitutional rights to acquire and hold property and practice any profession (Articles 19(f) and (g)) and to equality before and equal protection of the law (Article 14). They also sought to have the Seventeenth Amendment – which had placed the Punjab Act in the Ninth Schedule – declared ultra vires’. The judgment reversed the Supreme Court’s earlier decision which had upheld Parliament’s power to amend all parts of the Constitution, including Part III related to Fundamental Rights. The judgment left Parliament with no power to curtail Fundamental Rights and opined that the amendment needs to be constitutional. Thus Article 368 was eclipsed.

Doctrine of Severability

The doctrine of severability means that when some particular provision of a statute offends or is against a constitutional limitation, but 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. With the adoption of the Constitution of India in the year 1950, Part III in the form of fundamental rights also came into effect. The doctrine derives its validity from Article 13 which states,

               “All laws in force in India, before the commencement of the Constitution, in so far as they are inconsistent with the provisions of fundamental rights shall to the extent of that inconsistency be void.”

  • As an extension of Article 13, the doctrine states that when some particular provision of the statute infringes or violates the fundamental rights, but the provision is severable from the rest of the statute, and then only that provision will be declared void by the courts and not the entire statute.
  • The doctrine essentially lays down that if violative and non-violative provisions are separated in a way that the non-violative provision can exist without the violative provision, then the non-violative provision will be upheld as valid and enforceable.
  • In AK Gopalan v. State of Madras, the Court found Section 14 of the Preventive Detention Act to be violative of Article 14 of the Constitution. The Court added that striking down Section 14 will not change the object of the Act and thus only the impugned provision will be struck down and not the act as a whole. A similar observation was made in DS Nakara v. Union of India.
  • In State of Bombay v. FN Balsara, it was held that the violative provisions of the Bombay Prohibition Act, 1949, do not affect the validity of the entire Act and thus there was no need to invalidate the statute altogether.
  • The Supreme Court declared Sections 4 and 55 of the 42nd Constitutional Amendment Act invalid, for being beyond the amending powers of the Constitution but held the rest of the Act valid.
  • In Kihoto Hollohan v. Zachillu,  the Court upheld the validity of the Tenth Schedule while striking down its paragraph 7 for violating the provisions of Article 368(2).

Summary. The doctrine of severability opens up the way for the applicability of judicial review. The courts through judicial review invalidate the laws which infringe upon the fundamental rights of individuals. When an individual contends that a particular legislation is taking away his/her fundamental rights, and invokes the Court’s right to judicially review that decision, the burden of proof lies on him/her for proving how the impugned legislation has interfered with his/her rights.

  • The doctrine of severability is a principle of great eminence in the Indian constitutional setup. It is the touchstone against which the validity of laws is tested. It is a check on the unfettered powers of the legislature which if left on its own has the capability of going rogue and invading the very basic rights guaranteed to individuals.

Doctrine of waiver

Waiver is when a person intentionally and with full knowledge, gives away his right to exercise or chooses not to exercise that right which the person would otherwise possess. Waiving a right means that a person can no longer assert that right and is precluded from challenging the constitutionality of that law for the benefit of which, the right is waived. This doctrine is based on the principle that a person is the best judge of his own interest and when given full knowledge, the person should be allowed to decide for himself. In India, a person can waive rights conferred by a statute or rights arising out of a contract, but cannot waive constitutional rights or rights guaranteed by the constitution itself. The Fundamental Rights exist in the Constitution not merely for an individual’s benefit, but are a matter of public policy. Rights which are part of public policy cannot be waived. Additionally, the Constitution imposes an obligation on the state to protect these rights. The leading case till date on the Doctrine of Waiver is Basheshar Nath v. The Commissioner of Income Tax Delhi & Rajasthan & Another. It was upheld that fundamental rights cannot be waived off. Fundamental rights, known as Magna Carta of Indian constitution, are borrowed from the United States of America.  The doctrine of waiver does not apply to the Indian Constitution, as Justice Bhagvati remarked  “…Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution…”

.      In Olga Tellis v Bombay Municipal Corporation case, it was further held that there can be no estoppel against the Constitution. The Preamble of the Constitution states India to be a democratic republic and no citizen could barter away with fundamental rights. 

The doctrine of waiver is of prime importance and its non-application on constitutional rights is a major check on powers of legislature. If the doctrine were to be applicable, it could make an individual waive his rights in lieu of some benefits provided by the State. The doctrine could be made applicable in the Indian legal system through judicial interpretation. But it is in doubt whether the doctrine could have constitutional backing.  Doctrine of waiver is founded on justice and reason. It would be unfair and unjust to hear who alleges inconsistent facts. Allowing a person to first take benefit of the statute and then challenge its constitutionality is unreasonable. Moreover, it can be argued that ignorantia juris non excusat and a person alleging that he did not know about the unconstitutionality of the statute should not be excused. But it cannot practically be expected from every person to know the law especially when it is applied retrospectively, when a law is made void retrospectively. It could be highly unfair to deny security of law to such a person. Also, the applicability of the doctrine could make enforceable, on certain persons who have waived their rights, the law which could otherwise be unenforceable. 

Distinction between Pre-Constitutional Law and Post Constitutional Law : Those laws which came in force before the commencement of Indian Constitution are known as pre constitutional laws.(If they infringe any right mentioned in part 3 will be declared void they may come in force again when such right will be amended in favour of such law) and those laws which came in force after the commencement of Indian Constitution are known as post constitutional laws (If these laws infringe any right mentioned in part 3 would be declared void ab initio. Such laws can’t come in force even if the amendment to constitution done in favour of them, indeed a new law should be formed.)

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