Part III of the Constitution guarantees Fundamental Rights. But two preliminary questions must be settled first:

• Against whom can these rights be claimed? → Article 12 defines "State."
• What happens to a law that violates them? → Article 13 makes it void.

Together they are the gateway to the entire chapter on rights.

Article 12 — Definition of "State"

The four categories — with examples

• Government & Parliament of India — the Union executive and legislature. Example: a ministry's circular, a central law.
• Government & Legislature of States — state executive and assemblies (including UTs). Example: a state education department's admission rule.
• Local authorities — municipalities, panchayats, district boards, improvement trusts. Example: a municipal corporation's licensing decision.
• Other authorities — undefined in the Constitution, and therefore the most litigated limb. Example: LIC, ONGC, a state electricity board.

Evolution of "other authorities" — chronologically

The R.D. Shetty five-point test — is a body an instrumentality of the State?

• The entire share capital is held by the government.
• It enjoys substantial financial assistance from the State.
• It enjoys a monopoly status conferred or protected by the State.
• There is deep and pervasive State control.
• Its functions are of public importance, closely related to governmental functions — or a government department has been transferred to it.

Special positions to remember

• Judiciary: not expressly mentioned. When courts act administratively (recruitment, exams, appointments) they are State; when acting judicially, their decisions cannot be challenged as violating Fundamental Rights — Rupa Ashok Hurra v. Ashok Hurra (2002).
• International bodies: organisations like the United Nations are not "State" under Article 12 — Sanjaya Bahel v. Union of India (2019, Delhi HC).
• Private bodies: generally not State — but a writ may still lie under Article 226 if they discharge a public duty. Article 226 is wider than Article 32.

Article 13 — Laws Inconsistent with Fundamental Rights

Clause-by-clause, in plain language

• 13(1) — looks backwards. Pre-Constitution laws that clash with Fundamental Rights are void to the extent of the clash.
• 13(2) — looks forwards. The State cannot make any new law that takes away or abridges Fundamental Rights.
• 13(3) — defines "law" very widely: ordinances, orders, bye-laws, rules, regulations, notifications, and even custom or usage having the force of law.
• 13(4) — the escape hatch. Constitutional amendments under Article 368 are not "law" for this Article. This clause was not in the original Constitution — it was inserted by the 24th Amendment (1971) as Parliament's counterattack. More on that below.

Article 13 is the textual basis of Judicial Review

By declaring violative laws "void," Article 13 gives courts the express power to strike them down. Read with Articles 32 and 226, it makes judicial review a working reality rather than a theory.

Four Doctrines Under Article 13 — Explained Simply

1. Doctrine of Severability (Separability)

• The idea: only the offending part of a law is struck down, not the whole statute — note the words "to the extent of such inconsistency."
• Condition: the bad part must be separable from the good. If they are inextricably mixed, the whole law falls.
• Case: A.K. Gopalan v. State of Madras (1950) — only Section 14 of the Preventive Detention Act was struck down; the rest survived.
• Everyday analogy: a rotten slice is cut off; the rest of the fruit is still eaten.

2. Doctrine of Eclipse

• The idea: a pre-Constitution law that violates a Fundamental Right is not dead — it is only overshadowed. It stays dormant, and revives automatically if the eclipsing right is amended away.
• Case: Bhikaji Narain Dhakras v. State of MP (1955) — a 1947 law became valid again after the 1st Amendment (1951) widened the State's power over trade.
• Everyday analogy: a solar eclipse — the sun isn't destroyed, just blocked. Remove the shadow and it shines again.
• Note: the doctrine applies fully to pre-Constitution laws; its application to post-Constitution laws has been treated more restrictively.

3. Doctrine of Waiver

• The idea: a citizen cannot waive their Fundamental Rights, even voluntarily.
• Why: these rights exist for public interest and constitutional policy, not merely private benefit.
• Case: Basheshar Nath v. CIT (1959) — a settlement in which a taxpayer gave up an Article 14 claim was held ineffective.
• Everyday analogy: you cannot sign away your right to equality the way you'd waive a refund.

4. Doctrine of Prospective Overruling

• The idea: a new judicial ruling applies only to the future, leaving past transactions undisturbed — to avoid chaos.
• Case: introduced in I.C. Golaknath v. State of Punjab (1967), borrowed from American jurisprudence.
• Effect there: the Court held Parliament could not amend Fundamental Rights henceforth, but did not invalidate the earlier amendments already made.

The Big Clash: Can Parliament Amend Fundamental Rights?

This is the most examined storyline in Indian constitutional law. The whole fight turns on one question: is a constitutional amendment a "law" under Article 13(2)? If yes, it can be struck down for violating Fundamental Rights. If no, Parliament is free.

Stage 1 — Parliament's era (1951–1965)

• Shankari Prasad v. Union of India (1951): challenge to the 1st Amendment (which curtailed the right to property). The Court held that "law" in Article 13 means ordinary law, not a constitutional amendment. Parliament can amend Fundamental Rights.
• Sajjan Singh v. State of Rajasthan (1965): the 17th Amendment upheld on the same reasoning — but two judges expressed doubts about unlimited amending power. The seed of dissent was sown.

Stage 2 — The Court reverses (1967)

• I.C. Golaknath v. State of Punjab (1967): by a narrow 6:5 majority the Supreme Court reversed itself.
• It held a constitutional amendment IS "law" under Article 13(2), so Parliament cannot take away or abridge Fundamental Rights.
• Article 368 was read as laying down only the procedure, not conferring power.
• Using prospective overruling, past amendments were left intact.

Stage 3 — Parliament's counterattack (1971)

• The 24th Constitutional Amendment Act, 1971 was the direct response to Golaknath.
• It inserted Article 13(4) — nothing in Article 13 applies to an amendment made under Article 368.
• It inserted Article 368(3) — nothing in Article 13 shall apply to any such amendment.
• Effect: amendments were placed outside the reach of Article 13 altogether.

Stage 4 — The grand compromise (1973)

• Kesavananda Bharati v. State of Kerala (1973): a 13-judge bench, the largest ever, decided 7:6.
• It overruled Golaknath and upheld the 24th Amendment — Parliament can amend any part of the Constitution, including Fundamental Rights.
• But it laid down the Basic Structure Doctrine: Parliament cannot damage or destroy the Constitution's basic structure or essential features.
• Elements later recognised include: supremacy of the Constitution, rule of law, separation of powers, judicial review, secularism, federalism, free and fair elections, and the independence of the judiciary.

The genius of Kesavananda was to give both sides something: Parliament kept its power to amend, and the Constitution kept its identity. Neither Parliament nor the Court became supreme — the Constitution did. — Legacy IAS Faculty

Stage 5 — The doctrine in action (1975 onwards)

• Indira Nehru Gandhi v. Raj Narain (1975): the 39th Amendment, which sought to immunise the PM's election from judicial scrutiny, was struck down. Free and fair elections and judicial review are part of the basic structure.
• Minerva Mills v. Union of India (1980): struck down parts of the 42nd Amendment. Held that limited amending power is itself a basic feature, and restored the balance between Fundamental Rights and Directive Principles.
• Waman Rao v. Union of India (1981): fixed the crucial cut-off — the basic-structure test applies to amendments made after 24 April 1973 (the date of the Kesavananda judgment).
• L. Chandra Kumar v. Union of India (1997): judicial review by the High Courts and Supreme Court is a basic feature; tribunals cannot oust it.
• I.R. Coelho v. State of Tamil Nadu (2007): laws placed in the Ninth Schedule after 24 April 1973 are not immune — they too can be tested against the basic structure.

Where Things Stand Today

• Parliament can amend Fundamental Rights under Article 368 — an amendment is not "law" under Article 13.
• But it cannot destroy the basic structure, and the courts will review any amendment against that standard.
• The doctrine remains actively invoked. In recent years the Supreme Court has relied on it in high-profile matters such as the electoral bonds litigation, treating transparency, rule of law and free elections as constitutional essentials.
• Marking the doctrine's continuing relevance, CJI Surya Kant (who took office in November 2025) has described Kesavananda Bharati as far more than a precedent — an affirmation of India's commitment to constitutionalism, acting as a check against absolutism.

Articles 12 vs 13 — Quick Compare

Frequently Asked Questions

What is the definition of "State" under Article 12?

Article 12 says "the State" includes the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within India or under the control of the Government of India. Because it uses "includes," the definition is inclusive, and courts have expanded it to cover instrumentalities and agencies of the State.

Is BCCI a "State" under Article 12?

No. In Zee Telefilms v. Union of India (2005), the Supreme Court held that although the BCCI performs public functions, it does not have deep and pervasive government control or funding, so it is not "State" under Article 12. However, a writ may still lie against it under Article 226 for breach of a public duty.

What are the doctrines under Article 13?

Four: the Doctrine of Severability (only the offending part of a law is void), the Doctrine of Eclipse (a pre-Constitution law is dormant, not dead, and can revive), the Doctrine of Waiver (Fundamental Rights cannot be waived), and the Doctrine of Prospective Overruling (a ruling applies only to the future).

Can Parliament amend Fundamental Rights?

Yes, but with limits. Article 13(4), inserted by the 24th Amendment (1971), places constitutional amendments outside Article 13. In Kesavananda Bharati (1973), the Supreme Court upheld this but ruled that Parliament cannot damage or destroy the basic structure of the Constitution.

What is the difference between Golaknath and Kesavananda Bharati?

In Golaknath (1967), the Court held by 6:5 that a constitutional amendment is "law" under Article 13, so Parliament could not amend Fundamental Rights at all. In Kesavananda Bharati (1973), a 13-judge bench overruled Golaknath by 7:6, holding that Parliament can amend Fundamental Rights but cannot destroy the basic structure of the Constitution.