[Music] Hello friends I'm sugan Saka and today we are going to have an overview of the meaning of the term State as used under article 12 of The Constitution of India as you know the fundamental rights and shined under the constitution of India are based out of human rights which in turn are embodiments of universal natural rights it is imperative on state not to transgress these rights it may also be understood that fundament Al rights are the boundary which the state shall under no circumstance Beyond constitutional permissibility transgress as that shall frustrate the very purpose and objective of fundamental rights in lie of this it is very important to understand what a state shall mean so as to protect those entitled with certain fundamental rights under the part three of the Constitution according to article 12 of The Constitution unless the context otherwise requires the state shall include the government and Parliament of India and the government and legislature of each of the state and all local or other authorities within the territory of India or under the control of the government of India as far as the first two components of the definition are concerned there is little to no scope of any ambiguity in them but the vital question has been what it must mean by the term other authorities this term is of immense significance as it is here where widening of the scope of this definition is possible The Wider the meaning the more authorities can be brought within the AIT of article 12 hence expanding the protection of the fundamental rights therefore the epics court has judiciously expanded the meaning of the term state by its interpretation of the term other authorities this may be witnessed by the gradual widening of the scope of the term other authorities in a phased manner as shall be explained now at first the question was dealt with in the case of University of Madras versus santai in 1954 where the rule of udm generus was applied to the term the rule of ausm generus essentially means of the same kind this implies that the term other authorities must be ascribed a meaning similar to Parliament and legislature that is institutions or bodies wested with rule making however it was later on rejected in the case of ambai versus state of utar Pradesh in the year 1962 this was followed by a phase where Judiciary interpreted the term so as to include only statutary bodies within its embit this phase may be noted from Rajasthan State electricity board versus mohanlal followed by sukdev sing versus batram eventually to retti versus International Airport Authority of India while in all these cases the bodies in question were statutary the significance of sukdev Singh case lies in the fact that the court referred to instrumentalities of government as a principal further in retti case though again the body in question was a statutory one nonetheless the court laid down certain tests to determine whether an authority would be an instrumentality of the state or not however none of these cases could be seen as precedent Beyond statutary bodies being authorities within the meaning of article 12 therefore a remarkable contribution in the jurisprudence of the term other authorities was made in s prash versus Union of India where for the first time a company was considered an authority within the meaning of article 12 the court noted the determinant Factor as the brooding presence of the state behind the operations of the body statutary or other this paved way for inclusion of non- statutary bodies also under article 12 later on in aasia case the court reiterated the tests laid down in arietti to determine an instrumentality of the state to summarize the gist of these tests following may be noted first where the entire share capital of the body is held by the government the body is an instrumentality of the government second where the financial assistance given by the state is so large that the entire expenses are met by such finances the body may be said to be impregnated with government character next if the body enjoys Monopoly status conferred by or protected by the state next if there exists a deep and pervasive State control the body is an instrumentality of the state next if the functions performed by the body are public functions and closely related to those performed by the government this could be a relevant factor to consider the body as an instrumentality of the government since the rigidity of these tests laid down in ajasia was a crucial question to be examined the court further clarified the same in pradep Kumar visvas so as to remove the element of rigidity from the same and laying down a general proposition the quote highlighted Financial functional and administrative dominance of the government to be the determinant factor for the identification of a body as an instrumentality or agency of the state as a consequence to these developments the courts over a period of time have declared many authorities as agencies or instrumentalities of the state for the purpose of article 12 now that we've had an overview of the meaning of the term State we shall now proceed to Article 13 of the Constitution of India Article 13 is a key provision laying down the scope for judicial review for laws in derogation of fundamental Rights Article 13 is a significant provision for if not Article 13 the epics Court could not be deemed as the guardian of the Constitution wested with power to interpret the statutes and test their validity on the threshold of fundamental rights Clause 1 to Article 13 declares that all pre-constitutional laws shall be void to the extent they are inconsistent with the fundamental rights this Clause has given rise to a pertinent question with respect to its effect on the given law whether such a law is rendered dead in its entirety or can it be revitalized in any given situation if so how the answer to this question was provided in the famous case of bikaji versus state of madh Pradesh where a pre-constitutional law an amendment in 1947 to the CP and barar Motor Vehicles Act of 1939 was challenged as it authorized the state government to exclude all private motor transport business this exception was found inconsistent with article 191g when the Constitution came into force in the year 1950 as the fundamental rights contained in the set provision allowed freedom of occupation trade and business the court then propounded the doctrine of eclipse anaging that uh the inconsistent law is not to be considered as completely wiped out for it shall continue to provide relief on rights accured within its period of application however it was for inconsistencies arising post the commencement of the Constitution that the laws shall be in dant condition and if the relevant fundamental right is amended its effect will be to remove the Shadow and make it free from all blemish or infirmity it must be noted that this Doctrine is to only apply to pre-constitutional laws as for the postc constitutional laws they shall be void AB initio in case of inconsistency with fundamental rights moving further to Clause 2 to Article 13 it must be noted that the provision applies to post Constitution laws as already mentioned post-constitutional laws do not face the challenge similar to the one faced in the laws falling under Clause one as these laws are being enacted after the Constitution has already come into Force hence it is imperative on the legislature not to transgress the con constitutional boundaries however in case the laws or any part thereof tends to do so Clause two provides that to the extent of such inconsistency such law shall be void here the term void implies void Abino and therefore it is not to be confused with one which is in dormant or eclipsed condition when the legislature enacts a law inconsistent with part three of the Constitution such law is certainly void but will the law be void even if only a part of it is inconsistent it is very important to note here in this context that Clause two suggests that the laws is to be rendered void only to the extent of such inconsistency hence there shall be two pertinent questions involved here in which shall be first whether the inconsistent part is separable from the consistent part or not and second how to deter mind whether a part is separable or not these questions have been answered by The Honorable Supreme Court in the famous case of rmdc versus Union of India in 1957 by propounding what came to be known as the doctrine of severability the Court laid down certain propositions with regard to the doctrine which also explains how Clause 2 to Article 13 is supposed to apply the propositions are as follows first the intent of the legislature is a vital aspect in determining whether valid part of a statute is separable from the invalid part the intention may be deduced on reading the objects and purposes of the legislation second where the valid and invalid part of the statute are inseparable it will render the entire statute as invalid third in case the valid and invalid part are separable it shall also be seen whether what remains after removing the invalid part can stand and be enforced independently of the removed part fourth if what remains after removing the invalid part is so truncated and incapable of being enforced the entire statute shall be rendered invalid fifth if the valid and invalid part even though separable form part of the same scheme so that the valid part shall have no meaning after removing the invalid part the whole of the law shall be rendered invalid as explained so far through both Clause 1 and two the constitution of India has imposed limitations upon the legislative power to surpass the constitutionally guaranteed rights it must be reiterated while Clause one would apply to pre-constitutional laws Clause two is exclusively for post-constitutional laws further Clause 3 to Article 13 defines what the term law shall include amongst which an ordinance order bylaw rule regulation notification customs and usages all have been included an interesting observation could be The Silence of the provision on legislative enactments as laws however it must be noted that it is only due to the obviousness of the fact that acts of legislature are laws hence no exclusive mention relevant to this definition and also to Clause 4 to Article 13 is the next topic on the doctrine of basic structure to which now we shall proceed the doctrine of basic structure is closely linked to the two questions which are first whether the amendment to the Constitution under article 368 laws within the meaning of Article 13 Clause 3 second if not can the parliament through its power to amend under article 368 take away or abridge the fundamental rights guaranteed under part three to any extent in order to proceed with the answer to the uh stated questions through the doctrine of basic structure it is pertinent to delve into the background of these questions and thereby of the doctrine itself the question was first raised before the Apex Court in the case of shankari Prasad Singh Deo versus Union of India in 1951 when the first amendment Act of 1951 was challenged before the court the amendment curtailed the right to property which then was enshrined as a fundamental right it was argued that since Article 13 prohibited enacting laws which take away or abdes any fundamental right under part three this amendment should be declared void this argument was rejected by the epics Court which was of the opinion that Constitutional Amendment acts are not laws within the meaning of Article 13 followed by this was the next case of sajan Singh versus state of Rajasthan in 1965 when the Constitution's 17th Amendment Act was challenged a constitutional bench of five judges through a majority of 3 is2 upheld the earlier shankri Prasad Singh's decision the dissenting minority Judgment of Justice hiah and Justice molar were of a differing opinion which was inclined towards the sanctity of fundamental rights and not to make them vulnerable to the mercy of legislative majority therefore not much later than the last mentioned decision came yet another significant decision by the 11 judge bench of the apic court in the famous case of IC gulak versus state of Punjab in 1967 here specifically the Punjab security and land tenure Act of 1953 and consequentially ially the 17th Amendment Act was once again a subject matter of scrutiny the bench by a majority of 6 is to5 overruled its earlier decisions in sankari Prasad and sajan Singh cases the Court held that article 368 contained only the procedure to amend and not the power thereof which were otherwise laid down in article 248 it said that all legislative powers are subject to provisions of the Constitution constitutional amendments are to be considered as laws within the meaning of Article 13 hence subject to the limitations under Clause 2 and judicial review resultantly no amendment to the Constitution can take away a fundamental right guaranteed under part three since the 17th Amendment Act was declared invalid by implication the amendment Act was to be rendered void app initial this could have resulted in invalidating a large number of transactions already undertaken and consequentially a flood of litigation therefore to avoid the chaos the court also came up with a doctrine of prospective overruling this implied that the golak decision was not to overturn earlier acts but only to restrict the future acts of aaging fundamental rights since the decision of the golak case was also not devoid of its own flaws and in the tussel between legislature and Judiciary it was only seen as yet another extreme contrast to the earlier decisions the then Government tried to legislatively overrule the golak decision by introducing 24th 25th 26th and 29th Amendment acts subsequently as the union Parliament had mostly undone the effects of golak decision it again called for judicial intervention in the landmark case of keshwanand bti versus state of Kerala in 1973 this was a 13 judge bench and the largest till date ever to be constituted by the Supreme Court it was in this decision that the apic court propounded the doctrine of basic structure as the key findings of the decision the following may be noted first the golak decision was overruled second the 24th Amendment Act was held valid third the 25th Amendment act in so far as it took away judicial review was declared invalid fourth the 29th Amendment Act was also found valid and last but the most important finding was that article 368 contained procedure as well as the power to amend the Constitution however it does not enable Parliament to alter the basic structure of the Constitution the significance of the decision lies in the fact that not just it struck a balance between the ongoing tussle between the legislature and the Judiciary it reaffirmed constitutional Supremacy without diluting the legitimate powers of the parliament which are again based out of the very same Constitution hence the quanan bti decision while it does not give unfettered power to Parliament to amend the fundamental rights it also did not take away the power to amend which is otherwise a prerogative of the legislature and legislature alone while the fundamental rights could be amended those which are embodiments of the basic structure of the Constitution shall not be amended or amended to destroy the basic structure the another significance of this decision is that it recognizes that there are other Provisions also Beyond fundamental rights which need to be protected from the legislative access hence this decision can also be seen as laying the foundation to emite constitutionalism within the domain of the Constitutional law of India which in itself is a historical and a mstone achievement by Indian Judiciary what constitutes the basic structure of the Constitution is the important question the answer to which is not exhaustive however to name a few as laid down by the a quote in the quesan and bti case as well as rated and expanded in subsequent decisions are to include the following first supremacy of the Constitution Second Republican and Democratic form of government third secular character of The Constitution fourth separation of powers between legislature executive and the Judiciary fifth Federal character of The Constitution sixth the mandate to build a welfare state contained in the directive principles of State policy the unity and integrity of the nation sovereignity of India parliamentary democracy and the three organs of the state though the kand bti decision was of rank creativity and significance as already stated earlier ironically the tussle was not to end as smoothly as perceived a little later to the kesan bharti decision in 1975 when the election of shrimati Indra Gandhi was challenged in the famous election Petition of Indra Neu Gandhi versus Raj Naran which is also known as the election case the then government introduced the 39th Amendment act hastily a day before the hearing of the matter before The Supreme Court the Supreme Court declared the imputed clause for as invalid invoking the basic structure Doctrine by declaring free and fair elections as part of the basic structure feeling AG grieved by the twin decision in the quanan bharti and the election case the then Parliament yet again introduced the 42nd Amendment act 1976 with this amendment almost a revision of the Constitution was made and most importantly Clause four and five were added to article 368 in order to legislatively overrule the earlier decisions and to categorically bring every Amendment under article 368 outside the scope of judicial review this is when the last and decisive battle on this question was fought in the landmark case of of minurva Mills versus Union of India in 1980 when the Apex Court invalidated the newly added Clause 4 and 5 to article 368 and the amendment to article 31 C by the 42nd Amendment act by declaring judicial review as part of the basic structure of the Constitution with this we come to an end to our discussion on the basic structure Doctrine I hope the video was informative and helpful thank [Music] you