Definition of ‘State’ for Enforcement of Fundamental Rights: Justifiability of Fundamental Rights, Doctrine of Eclipse, Severability, Waiver

Theoretical overview

Fundamental rights are those inviolable and natural rights which have been provided under part iii of the constitution. Most of the fundamental rights provided to the citizens are claimed against the state and its subsidiaries and not against the private bodies. To understand the applicability of fundamental rights as a remedy against injustice, it is important to understand as to what constitutes a state.

The word ‘state’ is defined under article 12 of the constitution which says ‘in this part unless the context otherwise requires, the state includes:

• The government and parliament of India i.e., the executive and legislature of the government.
• The government of each state 
• The local authorities
• Other authorities within the territory of India or under the control of the central government

The constitution defines the state inclusively to mean the union government and parliament; the state governments and legislatures; parliamentary committees including the committee on public undertakings and administrative bodies; authorities, agencies and instrumentalities, all local and other authorities within the territory of India and all authorities under union government’s control. Article 12 is intended to include almost all the authorities and its institutions through which power of the state is exercised.

Government (union and state), parliament and state legislature – Parliament- comprises of the president of India, the Lok Sabha and the Rajya Sabha

Executive – organ that implements the law passed by the legislature includes the president, prime minister, council of ministers, governors, police, bureaucrats, chief minister etc.

State legislature – the legislative body at the state level (just like parliament at union level). It comprises of Vidhan Sabha and Vidhan parishad.

Local authorities – the term authority under article 12, means the power to make laws (or orders, regulations, bye-laws, notifications etc.) which have the force of law. It also includes the power to enforce these laws. 

As per section 3(31) of the general clauses act, 1897, local authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the government within the central or management of a municipal or local fund.

Test to determine local authorities – 

The constitutional bench held that, to be characterized as local authority, the authority concerned must: 

• Have a separate legal existence
• Be legally an independent entity
• Function in a definite area 
• Enjoy a certain degree of autonomy
• Be entrusted by statute with such governmental functions and duties as are usually entrusted to locals.
• Has the power to raise funds.
• Be wholly or partly, directly or indirectly, elected by the inhabitants of the area.

Other authorities – 

The term other authorities under article 12 have been given a wide interpretation due to the changing role of the state. Today, the state performs a variety of functions and has become the largest provider of services assuming the role of a welfare state. The term other authorities have to be interpreted as authorities exercising governmental and sovereign functions, which would mean agents of the executive government. In Ajay Hasia vs Khalid Mujib and R.D Shetty case, the apex court laid down the following tests to be considered ‘other authority’:

• If the entire share capital of the corporation is held by the government, it would indicate that the corporation is an instrumentality or authority of the govt.
• If the financial assistance of the state is so much as to meet the entire expenditure of the corporation
• If the corporation enjoys state conferred or state protected monopoly status.
• Deep and persuasive state control
• If the function of the corporation is of public importance and closely related to govt. functions
• If the department of govt. is transferred to corporation

Article 12 doesn’t specifically define judiciary as a part of state. However, the answer to this issue lies in the distinction b/w judicial and non-judicial functions of courts. When the court performs their non-judicial functions, they fall within the definition of the state. But when the court perform their judicial functions, they wouldn’t fall within the space of state. So, the judicial decisions of a court cannot be challenged as being violative of fundamental rights. But an administrative decision can be challenged as being violative of fundamental rights.

Article 13 of the Indian constitution states that laws which are inconsistent with or in derogation of the fundamental rights are void. Clauses 1&2 of the same states that both pre and post constitutional laws will be declared void if they are inconsistent with the fundamental rights. Artcle13(3) defines the term law used in this section as something which includes ordinance, order, bye-laws, rule, regulation, notification custom or usage having in territory of India the force of law. 

Doctrine of Severability

It means to separate. An act may not be void as a whole, but only a part of it can be void and the rest may continue to stand.

Nuances of this doctrine – given in RMDC vs. Union of India are: – 

1. Intention of legislature is a determining factor
2. If a particular section, being declared void, makes the whole act meaningless, then the whole act can be struck down
3. Alteration cannot be done in the rest act to make it meaningful.

Doctrine of eclipse

it means to hide. This doctrine declares fundamental rights as prospective in nature. Pre-constitutional laws, that cannot be void-ab-initio remains in the dormant state. This doctrine was officially created in the case of Bikaji VS, State of MP. These dormant laws are still enforceable for those articles which are not available to non-citizens. 

Doctrine of waiver

This doctrine is based on the idea that a person is his best judge and that he has the freedom to waive off or renounce the enjoyment of any of the right conferred on him by the state, provided that he must be aware of such waiving of the right.

Relevant articles

Article 12 in The Constitution Of India 1949

12. Definition 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 of the States and all local or other authorities within the territory of India or under the control of the Government of India

Article 13 in The Constitution Of India 1949

13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; 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

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

Important case laws

1. University of Madras vs. Shanta Bai (1954) – the apex court held the maxim ejusdem generis for the authority to be considered a state. This particular maxim means “of the same kind”.
2. R.D Shetty vs.  International Airport Authority (1979) – the apex court laid down the following tests to be considered ‘other authority’:

• If the entire share capital of the corporation is held by the government, it would indicate that the corporation is an instrumentality or authority of the govt.
• If the financial assistance of the state is so much as to meet the entire expenditure of the corporation
• If the corporation enjoys state conferred or state protected monopoly status.
• Deep and persuasive state control
• If the function of the corporation is of public importance and closely related to govt. functions
• If the department of govt. is transferred to corporation

3. AK Gopalan vs. State of Madras (1950) – section 14 of the preventive detention act was inconsistent, so it was removed due to article 13 of the constitution.
4. Bikaji vs State of MP (1955) – firstly, sections of Motors Vehicle Act violative of article 19 were eclipsed. Later, due to amendment, they were no more in violation of any right. Hence, they become active again.

Important legal terms and maxims

Ejusdem generis – something of the same kind

Voi-ab-initio – void from the beginning

Points to remember  

• The word ‘state’ is defined under article 12 of the constitution
• The constitution defines the state inclusively to mean the union government and parliament; the state governments and legislatures; parliamentary committees including the committee on public undertakings and administrative bodies; authorities, agencies and instrumentalities, all local and other authorities within the territory of India and all authorities under union government’s control. Article 12 is intended to include almost all the authorities and its institutions through which power of the state is exercised.
• Article 12 doesn’t specifically define judiciary as a part of state. However, the answer to this issue lies in the distinction b/w judicial and non-judicial functions of courts
• Article 13 of the Indian constitution states that laws which are inconsistent with or in derogation of the fundamental rights are void
• Artcle13(3) defines the term law used in this section as something which includes ordinance, order, bye-laws, rule, regulation, notification custom or usage having in territory of India the force of law.