Article 12 , Article 13 and Judicial Review

This article deals with ‘Article 12 , Article 13 and Judicial Review  .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Article 12

Article 12 defines ‘State’ – Actions of which can be challenged in courts as violation of Fundamental Right (FR)

‘State’ INCLUDE

• Government & Parliament of India
• Government & Legislature of States
• All Local Authorities like Panchayat, Municipalities
• And Other Authorities within Territory of India or under Control of territory of India

By Supreme Court judgement, following also constitute State under Article 12-

• Statutory & Non-statutory Authorities like LIC,ONGC,SAIL etc
• Even private body working as instrument of state

Most Problematic Expression in Article 12 is Other Authorities because it is not defined in the Constitution. Thus , it is for the courts to interpret this term and it is clear that the wider this term is interpreted , the wider is the ambit of Fundamental Rights.

Judicial History => Courts have widened the ambit of STATE with subsequent Judgements . 

• University of Madras vs Shanta Bai (1954) : Principle of ‘Ejsudem Generis‘ = only those authorities which  perform governmental or sovereign functions can be included in Article 12  . 

• (Landmark Judgement) RD Shetty vs International Airport Authority (1979) : Court laid down following tests
  1. Entire share capital is owned  by state
  2. Enjoys monopoly status
  3. Department of Government is transferred to Corporation
  4. Functional character is governmental in nature

Other Concern in era of Privatisation and Liberalisation

• In era of LPG, State is outsourcing its functions to the private authorities.
• Hence, where private entity is performing any  Public Utility Function , it should come within purview of Article 12 . 
• National Commission to Review the Working of Constitution ,2002  has recommended the same

Article 13

Declares all Laws that are inconsistent with any FR shall be void

And Law according to Article 13 are

1. Permanent laws enacted by Parliament & State Legislatures
2. Temporary laws like Ordinances
3. Statutory instruments like order, rule, regulations, notifications
4. Non Legislative Sources of law like customs or usage having force of law
5. SC ruling: Although Constitutional Amendments can’t be challenged in Supreme Court (SC)but in Keshavananda Bharti case it declared that if these constitutional amendments violates basic structure which include Fundamental Rights it can be challenged

Judicial review is conferred by Article 13 only.

Judicial Review

What is Judicial Review

• Term Judicial Review means the Power of a Court to review and potentially strike down an act of Legislature or Executive or Administration as unconstitutional  if they are not inline with Constitution 
• Doctrine of Judicial Review has originated in USA.

Judicial Review of Legislative Action  in India

• Indian Constitution provides for Judicial Review through Article 13, 32, 131-136, 143, 226 and 246.
• Judicial Review of Legislative Action is done by using some basic constitutional doctrines
  1. Doctrine of Basic Structure ,
  2. Pith and Substance  : Pith means ‘true nature’  and Substance means ‘ most important part of something’.Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter.
  3. Colourable Legislation (Whatever legislature can’t do directly, it can’t do indirectly)
  4. Severability (when a part of the statute is declared unconstitutional, then the unconstitutional part is to be removed and the remaining valid portion will continue to be valid),
  5. Liberal Interpretation,
  6. Limitation of Stare Decisis:  Policy of the courts to stand by the precedent
  7. Unconstitutionality and Eclipse , and Waiver

Cases regarding Judicial Review

1 . AK Gopalan Vs State of Madras : Constitution is supreme and every statute has to be in conformity with the constitutional requirements. 

2. Minerva Mills Case : Judicial Review  is Basic Feature of Indian Constitution . 

3. Indira Gandhi vs Raj Narain (1975) : Ordinary Laws aren’t subject to Doctrine of Basic Structure . The Doctrine of Basic Structure is applied only to determine validity of Constitutional Amendment.

4. IR Coelho vs State of Tamil Nadu (2007) : All Constitutional Amendments made on or after 24th April 1973 by which Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of Basic Features of the constitution enshrined in Article 14, 19 and 21. 

Judicial Review of Administrative Action

In this, Court scrutinises the whole Administrative Action and sees how the whole action was reached. If the court finds an Administrative Action as arbitrary or irrational, the court sets aside whole action 

1 . Delhi Development Authority vs UEE Electrical Engineering Private Limited (2004) :  irrationality and procedural impropriety are grounds for judicial review of administrative action .  

2. Doctrine of Proportionality : If Administrative Authority awards disproportionate punishment  to the allegations , it remains open for judicial review.

3. Doctrine of Legitimate Expectation : This doctrine has its genesis in UK in case of Schmidt vs Secretary of State (1969) where it was held that an alien who had been granted permission to enter UK for limited period had a legitimate expectation for being allowed to stay for the permitted period. This has been used by Indian courts too