Articles 12 and 13 appear at the beginning of Part III of the Constitution of India. Article 12 defines the expression "the State" for Part III, while Article 13 deals with laws that are inconsistent with, or take away or abridge, the Fundamental Rights guaranteed by Part III.
Article 12 defines "the State" for the purposes of Part III of the Constitution. This definition identifies the governmental and public authorities against which Fundamental Rights may operate, subject to the nature and wording of the particular right involved.
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.
The constitutional definition expressly includes the Union Government and Parliament, State Governments and State Legislatures, local authorities, and "other authorities" within India or under the control of the Government of India. Whether a particular body falls within "other authorities" depends on the applicable constitutional principles and the facts concerning that body.
Article 13 establishes the constitutional rule that laws cannot validly operate to the extent that they conflict with the Fundamental Rights contained in Part III. It separately addresses pre-Constitution laws, laws made by the State after commencement of the Constitution, the meaning of "law" and "laws in force", and constitutional amendments under Article 368.
All laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with Part III, are void to the extent of that inconsistency.
The State shall not make a law that takes away or abridges the rights conferred by Part III. A law made in contravention of this clause is void to the extent of the contravention.
For Article 13, "law" includes an Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in India the force of law.
"Laws in force" includes laws passed or made by a Legislature or other competent authority in India before commencement of the Constitution and not previously repealed, even if such a law or part of it was not then operating at all or in particular areas.
Clause (4) states that nothing in Article 13 applies to an amendment of the Constitution made under Article 368.
Many Fundamental Rights regulate action by "the State". Article 12 therefore supplies a constitutional definition that is wider than only the executive government. It expressly covers legislative bodies, local authorities and other authorities falling within the constitutional expression.
Article 13(1) and Article 13(2) use language that makes an inconsistent law void "to the extent" of the inconsistency or contravention. The constitutional inquiry therefore focuses on the part and operation of the law that conflicts with a Fundamental Right.
The inclusive definition in Article 13(3)(a) extends to instruments such as Ordinances, orders, bye-laws, rules, regulations and notifications, as well as customs or usages having the force of law. Subordinate legislation can therefore be examined for consistency with Part III.
Article 13(4), inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, provides that Article 13 does not apply to constitutional amendments made under Article 368. Constitutional amendments nevertheless remain subject to the separate constitutional doctrine concerning the basic structure of the Constitution.
For the authoritative constitutional text and amendment notes, readers should verify the current edition of the Constitution published by the Government of India. The official India Code and Legislative Department resources are linked in the sidebar.
Continue with the related Part III provisions on equality and other Fundamental Rights: