📜 Fundamental Rights: Articles 12 & 13 Explained | DLA Jaipur

Delhi Law Academy Jaipur presents below for aspirants of RJS, DJS, PCS(J) and other Judicial Services throughout India a short note on Articles 12 and 13 of the Constitution, elucidating the scope and significance of the term ‘Law’ in Article 13 and scope of the term “State” in Article 12 as expanded by the Supreme Court from 1967 onwards.

📌 Scope and Significance of the Term ‘Law’ in Article 13

Article 13 Clause (3)

• Law in this Article includes: ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law

Supreme Court on the scope and significance of the term ‘Law’ in Article 13:

Case 1: Shankari Prasad v. Union of India [1951 SC]

• “Although ‘law’ must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power.”
• “In the context of article 13, ‘law’ must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368.”
• “The terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect.”

Case 2: Golaknath v. State of Punjab [1967 SC]

• Whether a Constitutional Amendment is a “law” within the meaning of Article 13(2)?
• A constitutional amendment under Article 368 of the Constitution was an ordinary ‘law’ within the meaning of Article 13(2).
• Since according to Article 13(3), Parliament could not make any law that abridges the Rights contained in Part III, a constitutional amendment, also being an ordinary law within the meaning of Article 13, could not be in violation of the fundamental rights.
• The Supreme Court overruled its earlier decision in Shankari Prasad v. Union of India [1951].

Subsequent development:

• 1971: 24th Amendment inserted Clause (4) to Article 13 – “This article shall not apply to amendments under article 368”
• Case 3: Keshavanand Bharti v. State of Kerala [1973 SC] – Parliament could amend any provision of Part III but not the Basic Structure of the Constitution.

🛡️ Protection Against Whom?

Article 13 protects Fundamental Rights from violative actions by the “State”.

Definition of ‘State’ (Article 12)

• Government of India, Parliament of India
• Government of each State, Legislature of each State
• All local authorities in India, Other authorities in India or under control of Govt of India

Scope of the Term “State” as Expanded by the Supreme Court:

Case 1: 1967 – Rajasthan SEB v. Mohan Lal

• The Electricity Board, a corporation under statute for commercial activities, is included as “State”.

Case 2: 1975 – Sukhdev Singh v. Bhagatram Raghuvanshi

• Public corporations with statutory duties for public benefit are included as “State”.

Case 3: 1981 – Ajay Hasia v. Khalid Mujib Sehravardi

• College established by a registered society is within the definition of “State”.

Case 4: 1981 – Som Prakash Rekhi v. Union of India

• Bharat Petroleum Corporation held to be a “State”.

Case 5: 2002 – Pradeep Kumar Biswas v. Indian Institute of Chemical Biology

• CSIR held as a “State” due to control by central government.

Case 6: 2005 – Zee Telefilms v. Union of India

• BCCI was not considered a “State”.

❓ Frequently Asked Questions | Articles 12 & 13

1️⃣ What is the definition of “State” under Article 12? 🏛️

2️⃣ How has the Supreme Court expanded the scope of “State” since 1967? ⚖️

3️⃣ What does the term ‘Law’ include under Article 13(3)? 📜

4️⃣ Are constitutional amendments considered ‘law’ under Article 13? ⚖️

5️⃣ How does Article 13 protect Fundamental Rights from the State? 🛡️

6️⃣ Can a private entity ever be considered “State” under Article 12? 🏛️