Article 12 and 13 of the Constitution of India defining ‘State’ and ‘Law’
Article 12 1 defines the State which includes: a. the Government and Parliament of India and b. the Government and the Legislature of each of the States and c. of local or other authorities within the territory of India or under the control of the Government of India.
Article 12 thus not only include includes s execut executive ive and the legislatu legislature re at the entral government level and at state government level! "ut also local#other authorities li$e munici%alities! co&o%erative society 'if State is involved in their activities re managementt or fund! etc.(! )niversities either getting affiliation managemen affiliation or grant from the state. *erein! these "odies 'local#other( are not sovereign! "ut we can get our +undamental ,ights enforced against these authorities. Definition of Law under Article 13:
-he %u -he %ur%o r%ose se of thi this s de defin finiti ition on of law is to en ensur sure e su su%r %rema emacy cy of th the e Ind Indian ian onstitution regarding the following: • •
•
e!"orar# laws li$e rdinances! as well as %ermanent laws. e!"orar# delegat gated ed legi legislat slations ions li$e Statutor# Statuto r# instru instru!ents !ents in the nature of dele order 'though! order may "e /udicial as well(! "y&law! rule! regulation! notification having the force of law. $on%legislati&e sources of law ! li$e custom#usage having the force of law in the territory of India.
Article 102 tal$s a"out the conce%t of law a%%lica"le in India and its validity in accordance with Indian onstitution. It %rovides that a law should not infringe or 1
12. Definition. - In this part, unless the context otherwise otherwise requires, the State includes the Government Government and Parliament of India and the Government and the e!islature of each of the States and all local or other authorities within the territor" of India or under the control of the Government of India 2 #rticle 1$. aws inconsistent with or in dero!ation of the fundamental ri!hts %1& #ll laws in force in the territor" of India immediatel" 'efore the commencement of this (onstitution, in so far as the" are inconsistent with the provisions of this Part, shall, to the extent of such inconsistenc", 'e void %2& )he State shall not ma*e an" law which ta*es awa" or a'rid!es the ri!hts conferred '" this Part and an" law made in contravention of this clause shall, to the extent of the contravention, 'e void %$& In this article, unless the context otherwise requires law includes an" +rdinance, order, '"e law, rule, re!ulation, notification, notification, custom or usa!es havin! in the territor" of India the force of law laws in force includes laws passed or made '" e!islature e!islature or other competent authorit" in the territor" of India 'efore the commencement of this (onstitution and not previousl" repealed, notwithstandin! that an" such law or an" part thereof ma" not 'e then in operation either at all or in in particular areas areas %& othin! in this article shall appl" to an" amendment of this (onstitution made under #rticle #rticle $/0
clash with the notions of Part III of the Indian onstitution! i.e. +undamental ,ights. +urther! the +undamental ,ights should "e "roadly inter%reted to test the validity of laws! whenever there is a dis%ute regarding the same in the court of law '#S elhi Airtech Pvt. Ltd v State of )P and Another decided on 13.43.2411 "y Su%reme ourt of India(. -he ty%es of laws covered under Article 10 are as follows: authority before the a. Laws %assed "y the legislature or other com%etent authority co!!ence!ent of the Constitution ! i.e. 25.41.1674 b. Laws %assed "y the Legislature 'i.e. Parliament of India and Legislative Assem"ly or Legisla Legislative tive ounc ouncilil of a %articula %articularr state( af afte terr th the e co!!ence!ent of the Constitution of India ! i.e. 25.41.1674 8ordinance! nce! order order!! "ye law law!! rule! regulatio regulation! n! notificati notification! on! custom or c. Any 8ordina usages9 ha&ing the force of law in the territory of India. -hough! -houg h! thi this s de defin finiti ition on ex exclu cludes des the o onst nstitu itutio tiona nall Amen mendme dments nts for the %ur%ose of challenging them on the touchstone of +undamental ,ights and not otherwise they are very much %art of Indian legal system. 'orce of Law:
According Accordin g to this conce%t of force of law;! if a notificat notification ion or order made "y Government is to have the force of law! it must consist of: •
a rule or "ody of rules
•
regulating the course of conduct of a %erson or %ersons living in the community and
•
enforcea"le "y /udicial or other %rocesses created for the %ur%ose.
. ,ana And thers on 7 >ovem"er! 1650! itations: 165? AI, 5?3: 165? S, '7( 26?@
(eaning of the words used in definition of law under A. 13)3*: +rdinance !eans: •
the collection of rules im%osed "y authority
+rder:
•
•
A decisio decision n or direction direction of a court or /udge 'entered 'entered on on the court court record record "ut not included in the final /udgment( An authoritativ authoritative e indication indication to "e o"eyed a command or direction. direction.
,#%law !eans: • •
a law or rule governing the internal affairs of an organiBation or a secondary law.
-ule !eans: • •
A court order order limited limited in a%%lication a%%lication to to a s%ecific s%ecific case. case. A su"ordi su"ordinate nate regulation regulation governin governing g a %articular %articular matter. matter.
-egulation !eans: •
A govern governmental mental order order having having the force force of law. law.
$otification !eans: •
A formal announce announcement ment "y government government
Custo! !eans: •
A common tradition tradition or or usage so long esta"lis esta"lished hed that it has the the force or or validity of law.
sage !eans: • •
A customar customary y way of doing something something a custom custom or %ractice. %ractice. *a"itual or customary use long&continued %ractice.
$ote: It is detailed %a%er and you do not need to write in this great detail. It is for your understanding. Chile defining law you do not need to refer to Article 12. Crite the answers in your own words and you can come to faculty tomorrow or day after in first half %refera"ly during 6.04 am & 1 %m.
+or +or your your infor informat matio ion: n: iner inerva va ills ills case case tal$s tal$s a"out a"out the relat relation ion "etwe "etween en +undamental ,ights and PSPs.
ane$a Gandhi;s case tal$s a"out mutual inclusiveness "etween Articles 1? and 16.
