Political concepts and the Constitution of India

Professor N.Vasanthi

21st september 2017

Article 12:Definition of State

• Part III of the Indian Constitution

• Has a relation to the articles that follow particularly A.13 and other articles which cast a special burden on the State

• State and nation

• State and government

• Political vs a legal understanding of the State

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

Explicit meaning

• Government meaning executive

• Legislature meaning the parliament and legislative assemblies

• Judiciary is not included

• Local authorities are included

• Other authorities has been left open ended

Intent of framers

• Dr BR Ambedkar clarified that the purpose of Part III was not only to bind the Central and State Governments but also every district local board, municipality, panchayat, taluk board, and every other authority created by law and vested with the authority to make laws, rules, or by-laws.

Meaning as provided by interpretation

• University of Madras v Shantha Bai

• Rajasthan State Electricity Board v Mohanlal

• Sukhdev Singh v Bhagat Ram (J.Mathews opinion)

• Ajay Hasia v Khalid Mujib

• PK Biswas v Indian Institute of Chemical Biology

• Zee Telefilms v UOI

Structuralism

• Created by statute

• Had law making powers

• Power to impose a penalty

• Financial control

Functionalism

• even a body with no financial funding from the government could qualify as ‘State’ if its functions were of high public importance and closely related to, or allied with, those of the government.

• Agency or instrumentality of the State

• Juristic veil

Ingredients of an agency or instrumentality test

• 1. If the entire share capital of the corporation is held by the government, it would go a long way towards indicating that it is an agency or instrumentality.

• 2. Where financial assistance from the State meets almost the entire expenditure of the corporation, it would indicate governmental character.

• 3. The corporation enjoying a monopoly status conferred or protected by the State, would be of relevance.

• 4. Existence of deep and pervasive State control indicated ‘agency or instrumentality’ character.

• 5. Functions of the corporation being of public importance and closely related to governmental functions would be relevant in classifying the corporation as an instrumentality or agency of government.

• 6. Specifically, if a governmental department was transferred to a corporation, it would strongly support an inference of its instrumentality or agency status.

Judiciary as State

• Whether it is other authority under the control of the State?

• Financially, administratively and functionally under control?

• Naresh Sridhar Mirajkar v State of Maharashtra

• Whether judiciary also makes law

Conclusion

• Horizontal application of fundamental rights

• Who are rights available to and against whom?

• A.32 vs A.226

• Theory of the State as a liberal state or a state based on principles of social democracy

Form and effect: A.13

Effect of laws made in contravention of fundamental rights

• A.13(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.’

• A. 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution shall be void to the extent of their inconsistency with fundamental rights.

Significance of these provisions

• Privileges the position of fundamental rights

• Explicitly confers the power of judicial review

• Governance in accordance with constitutionalism

• Both primary and subordinate legislation

controversies

• Are both pre and post constitutional laws on the same footing?

• What are the consequences of declaring a law as void?

• Is a constitutional amendment a law?

• Are personal laws within the ambit of A.13?

Pre and post constitutional laws

• Doctrine of Eclipse – Fundamental right eclipses the law and the law

automatically revives if the constitutional bar is subsequently removed by amendment

– Whether it applies only to pre or to post constitutional laws

– Schedule IX which puts laws beyond the scope of judicial review

• Doctrine of severability

– Extent of inconsistency – Only when a reading down is not possible

Consequences of striking down a law

• Laws being unconstitutional for lack of competence and unconstitutional for violating fundamental rights

• Doctrine of prospective overruling

• Shayara Bano holding triple talaq violative of A.14-does it take effect from the date of the judgment or from the date of the legislation i.e. 1937?

Constitutional amendments

• Golaknath v State of Punjab

– Constitutional amendments were also law and hence could not infringe upon the fundamental rights

• Kesavananda Bharati v State of Kerala

– Overruled Golaknath

– Upheld the validity of A.13(4)

– Laid down the basic structure theory

Personal laws

• State of Bombay v Narasu appa mali

– Personal laws were beyond the scope of A.13

– A.372 provides for all law in force to continue until altered, repealed or amended

• Shayara Bano v UOI

– Triple talaq was violative of the A.14,15 and 21

– Shariat Act was a law under A.13

Conclusion

• A.13 gives express effect to judicial review

• The definition of law and laws in force brings a wide definition to what is commonly understood as law

• The court can strike these laws as being unconstitutional for violating any of the fundamental rights in part III

• The court may clarify how its decision can effect the operation of the law