ARTICLE 12 AND ARTICLE 13 OF THE INDIAN CONSTITUTION
1. INTRODUCTION:
The constitution of India was adopted by the constituent assembly on 26th November and came into force on 26th January, 1950. The constitution is the one which lays down the frame works related to the fundamental rights, code, structure, power and duties of the government. Totally there are 25 parts in the Indian Constitution with 448 Articles in which the Part III of the constitution specifically mentions about the Fundamental Rights. These fundamental rights are applicable to every citizen residing in the nation irrespective of their religion, race and place of birth, gender. So this article will give brief explanation about the Article 12 and Article 13 of the Indian Constitution, 1950.
2. ARTICLE 12
The Article 12 explains about the term State, the main purpose to define the term state is to determine on whom the responsibility should be placed. In order to establish a welfare society it is important to define the term state. There are cases in which the state infringes the right of the individuals both directly through its legislative or other powers and also indirectly through agencies and officials whom acting on behalf of the state. The definitions of state under Indian Constitution are as follows,
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.[1]
From the paragraph it is understood that the term State includes,
i) Government and parliament of India
The government of India includes executives and legislatures of the union. The union executives include The President, The Prime Minister and council of Minister and Attorney General of India. And the legislatures are the one who formulates the law. And also the Parliament consists of two houses which is the lower house Lok Sabha as well as the upper house Rajya Sabha.
ii) Government and legislature of the each states
The government of the states includes the state executives which include The Governor, The Chief Minister and Council of Ministers and Advocate general of the State.
iii) All Local Authorities and other authorities who all are within the territory of India
The local Authorities includes the local government which includes the municipal corporations, district boards, mining settlement authorities and other local authorities for the purpose of the local self government. This also includes village administration and village panchayat. And there are also various tests to determine the weather that body will fall under local authority or not.[2]
iv) All local and other authorities who are all under the control of Government of India.
The controls of government of India not only mean the absolute control of the government but also mean some form of control over the functioning of that respective body.
3. ARTICLE 13
The Article 13 of the Indian Constitution describes the means for the judicial review. The article 13 explains about the Laws inconsistent with or in derogation of the fundamental rights. This Article states that,
(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.
Explanation: According to this Clause any law that violates or is inconsistent with the fundamental rights outlined in the Constitution is null and invalid,. This clause is crucial because it guarantees that no legislation will be passed by the government that would violate citizens' fundamental rights.
Any measure that infringes upon a fundamental right will be declared unconstitutional and overturned by the courts. For Indian individuals to legally contest legislation they feel violate their basic rights, this section is a crucial weapon.
(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.
Explanation: This clause specifies that any law that was adopted before the start of the Constitution and is inconsistent with or in derogation of the basic rights will be invalid to the extent of such incompatibility. This implies that any pre-constitutional legislation that infringes upon a fundamental right would be declared illegal and overturned by the courts. To make them compliant with the Constitution, the government may, however, change these laws. This provision guarantees the modification or repeal of any prior legislation those conflicts with the Constitution, so averting any infringement on basic rights.
(3) In this article, unless the context otherwise requires, (a) law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) laws in force includes laws passed or made by a 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.
Explanation: This clause explains about what will be considered as laws and laws in force
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.] [1]
This Article also states about the two important doctrines from the constitution i.e
3.1 Doctrine of Eclipse
The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes; only unenforceable i.e. remains in a moribund condition. "It is over-shadowed by the fundamental rights and remains dormant, but it is not dead." Such laws are not wiped out entirely from the statute book. They exist for all post transactions and for the enforcement of the rights acquired and liabilities incurred before the commencement of the Constitution. It 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 fundamental rights.[3]
3.2 Doctrine of Severability
This doctrine is also called as doctrine of separability. It safeguards our fundamental rights, as stated in Article 13 clause 1 of the Constitution, which states that all laws enacted in India prior to the Constitution's adoption that are in conflict with the provisions of the fundamental rights shall be invalid to the extent of the conflict. However, only the parts of the legislation or act that are inconsistent with the fundamental rights would be declared invalid, not the entire law or act. However, this is only possible if the legally ambiguous portion is kept apart from the rest of the legislation. A legislation or act will be deemed invalid as a whole if its valid and invalid portions are indistinguishable from one another.[4]
4. CONCLUSION
The Article 12 and 13 plays an important role in the part III of the Indian constitution as it states about the term State and Article gives an explanation about the process of judicial review. The Article 13 also plays an important role as it states about the two important doctrines which protects the dormancy of the fundamental rights.
REFERENCES:
[1] The Constitution of India, 1950 available at: https://legislative.gov.in/constitution-of-india/ (last visited on January 12, 2024).
[2] Joshi K, state under Article 12 of the Constitution of India (iPleaders, 5 September 2023) available at : https://blog.ipleaders.in/state-article-12-constitution-india/ (accessed 11 January 2024.)
[3] LawBhoomi, Doctrine of Eclipse in Indian Constitution (LawBhoomi, 3 July 2023) available at: https://lawbhoomi.com/doctrine-of-eclipse-in-indian-constitution/ (accessed 12 January 2024)
[4] Doctrine of Severability: A Scalpel Rather than a Bulldozer (Legal Service India - Law, Lawyers and Legal Resources) available at: https://www.legalserviceindia.com/legal/article-4014-doctrine-of-severability-a-scalpel-rather-than-a-bulldozer.html#google_vignette (accessed on 12 January 2024)
