The 'State', Article 13 and the right to property

Detail

1. Who is the 'State'? (Article 12)

• Why Article 12 matters: most fundamental rights protect people against the State. So the first question in any rights case is whether the body that acted counts as the "State".

• Article 12 is the entry point to Part III. It defines "State" for the whole Part.

• Text of Article 12: "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" [2].

• The definition is inclusive. It gives a list but does not close it. This let the courts widen it later.

• Constituent Assembly debate: it was Draft Article 7 (1948 Draft Constitution) and was debated on 25 November 1948 [2].

• Some members feared that "other authorities" was too vague. Others did not want district boards and municipalities called "the State" [2].

• Dr. B.R. Ambedkar, Chairman of the Drafting Committee, said "other authorities" meant bodies that have "the power to make laws or the power to have discretion" [2].

• Four parts of the 'State':

• Union government and Parliament.
• State governments and state legislatures.
• Local authorities: municipalities, panchayats, district boards.
• Other authorities: this is where the courts did most of their work.

2. How the courts widened "other authorities"

Case (year)	Test or holding
Rajasthan SEB v. Mohan Lal (1967)	Bodies created by a statute (an Act of a legislature), such as an electricity board, are "other authorities"
R.D. Shetty v. International Airport Authority (1979)	Instrumentality or agency test: a body that works as a tool or agent of the government is the State
Ajay Hasia v. Khalid Mujib (1981)	A registered society can also be the State. Gave a list of signs: government owns the share capital, gives most of the funds, has deep control, does a public function, or transferred a government department to the body
Pradeep Kumar Biswas v. IICT (2002)	"Deep and pervasive control" test: the body is the State if the government controls it financially, functionally and administratively. Seven judges
Zee Telefilms v. Union of India (2005)	BCCI is not the State under Art. 12, because it is not financially or administratively controlled by the government. But a High Court can still hear writs against it under Art. 226, because it does public functions such as picking the national team

• Instrumentality or agency: a body set up or run so closely by the government that it is really the government acting through another name.
• Why Art. 226 is wider than Art. 32: a High Court can issue writs to "any person or authority". So even a private body doing a public duty can face a writ. Art. 32 needs a fundamental right to be broken, and that usually needs the "State".
• The judiciary acting judicially is not the State. A court's judicial order cannot be challenged as a breach of fundamental rights through a writ (Naresh Shridhar Mirajkar, 1966). When a court acts administratively, for example in making staff rules, it may count as the State.

3. Horizontal application of fundamental rights

• Horizontal application: using a fundamental right against a private person or body, not only against the State. ("Vertical" means citizen against State.)
• Rights that bind private persons by their own words:
• Art. 15(2): no citizen can be barred, on grounds of religion, race, caste, sex or place of birth, from shops, hotels, wells, tanks or public places.
• Art. 17: untouchability is abolished. Practising it in any form is an offence.
• Art. 23: bans human trafficking, begar (forced unpaid work) and other forced labour.

• Art. 24: no child below 14 may work in a factory, mine or other hazardous job.

• Kaushal Kishor v. State of Uttar Pradesh (3 January 2023), Constitution Bench of five judges, 4:1:

• The question was: "Can a fundamental right under Article 19 or 21 … be claimed other than against the 'State' or its instrumentalities?" [6]
• The majority held that Arts. 19 and 21 can be enforced against non-State actors too.
• The State has a constitutional duty to make sure citizens' rights are not broken even by non-State actors [6].
• It noted that enforcing claims against non-State actors may need legislative intervention (a law made by the legislature) [6].
• It also held that the grounds in Art. 19(2) are exhaustive. No extra limits on free speech can be added beyond those listed, such as public order, decency or security of the State. The case was about ministers making careless statements.
• Justice B.V. Nagarathna dissented on horizontal application.

4. Article 13: the base of judicial review

• Judicial review: the power of courts to check whether a law or government action fits the Constitution, and to strike it down if it does not.
• Art. 13 makes such laws void. Arts. 32 (Supreme Court) and 226 (High Courts) give the remedy. Together they are the textual base of judicial review.

Clause	What it says
13(1)	Laws in force before 26 January 1950 are void to the extent they clash with Part III [3]
13(2)	The State shall not make any law that "takes away or abridges" these rights. A law made against this is void "to the extent of the contravention" [3]
13(3)	"Law" includes ordinances, orders, bye-laws, rules, regulations, notifications, and custom or usage having the force of law
13(4)	Added by the 24th Amendment (1971). Art. 13 does not apply to a constitutional amendment made under Art. 368

• "To the extent of" the clash: the whole law is not always void. Only the part that breaks a right falls. The doctrines of eclipse and severability come from these words.
• Personal law and Art. 13(3):
• State of Bombay v. Narasu Appa Mali (Bombay HC, 1952) held that uncodified personal law (religious family law not written into an Act) is not "law" or "custom" under Art. 13. So it cannot be tested against fundamental rights.

• The debate reopened in Shayara Bano v. Union of India (2017), which struck down instant triple talaq. Different judges took different routes, and Narasu was questioned but not formally overruled.

• Why 13(4) was added: Golaknath (1967) had held that an amendment is "law" under Art. 13(2), so Parliament could not amend away fundamental rights. The 24th Amendment (1971) reversed this.

5. Doctrines courts use under Article 13

• Doctrine of eclipse: a pre-Constitution law that breaks a fundamental right is not wiped out. It is only overshadowed, like the moon in an eclipse.
• Bhikaji Narain Dhakras v. State of M.P. (1955): a 1947 law that let the state take over the motor transport business clashed with Art. 19(1)(g).
• The 1st Amendment (1951) changed Art. 19(6) to allow state monopolies → the shadow lifted → the law revived and was valid again.

• It mainly applies to pre-Constitution laws. A post-Constitution law that breaks a right is void from the start (Deep Chand, 1959). It can still apply to non-citizens, because rights like Art. 19 do not protect them (State of Gujarat v. Ambica Mills, 1974).

• Doctrine of severability: if only one part of a law is bad, only that part is struck down, as long as the rest can stand on its own.

• A.K. Gopalan v. State of Madras (1950): only section 14 of the Preventive Detention Act, 1950 was struck down. It barred a detenu (person held without trial) from telling the court the grounds of detention. The rest of the Act survived.

• R.M.D. Chamarbaugwalla v. Union of India (1957) set out the rules for severing: would the legislature have passed the good part on its own?

• Doctrine of waiver: a person cannot give up a fundamental right, even by choice.

• Basheshar Nath v. CIT (1959): the petitioner had agreed to a tax settlement under a law later held to break Art. 14. The Court held that he could still challenge it. These rights are public policy, not only private benefits.

• Reading down: the court gives a provision a narrower meaning so that it stays valid, instead of striking it down.

• Kedar Nath Singh v. State of Bihar (1962): sedition (s.124A IPC) was upheld, but only for words that incite violence or public disorder.
• Navtej Singh Johar v. Union of India (2018): s.377 IPC was read down so that it no longer covers consensual sex between adults. It still covers non-consensual acts, minors and bestiality.

6. The right to property: the original scheme (1950)

• Original Art. 19(1)(f): every citizen had the right "to acquire, hold and dispose of property".
• Original Art. 31: no one could be deprived of property except by authority of law. Property could be compulsorily taken only for a public purpose and with compensation.

• Art. 31 was in Part III under the heading "Right to Property" [4].

• The clash with land reform: states passed laws for zamindari abolition (ending large landlord estates and handing land to tillers).

• Kameshwar Singh v. State of Bihar (Patna HC, 1951) struck down the Bihar Land Reforms Act, 1950 under Art. 14, because landlords were paid compensation at unequal rates.
• This set off a long fight between Parliament and the courts.

7. Saved laws: exceptions to Article 13

• Saved laws: laws that the Constitution protects from challenge even when they break fundamental rights. They are exceptions to Art. 13.
• Article 31A (1st Amendment, 1951): laws for taking over estates (large landholdings) and related reforms cannot be challenged under Arts. 14 and 19.
• Later amendments added more: taking over management of property, merging companies, and changing mining leases.

• From the 44th Amendment (1978), Art. 31A also covers Art. 14 and 19 challenges, but no longer Art. 31, which was deleted.

• Article 31B and the Ninth Schedule (1st Amendment, 1951): an Act placed in the Ninth Schedule cannot be held void for breaking any fundamental right.

• The Ninth Schedule is a list of Acts added by Parliament through constitutional amendments. It began with 13 Acts and now has about 284.

• The 1st Amendment, including Arts. 31A and 31B, was upheld in Shankari Prasad v. Union of India (1951). That case held that Parliament can amend fundamental rights under Art. 368.

• Ninth Schedule laws can still be reviewed today:

• Waman Rao v. Union of India (1981): amendments made after 24 April 1973 (the date of the Kesavananda judgment) are open to basic-structure review.
• I.R. Coelho v. State of Tamil Nadu (2007), nine judges: any law added to the Ninth Schedule after 24 April 1973 can be tested. If it damages the basic structure (core features of the Constitution that even an amendment cannot destroy), it can be struck down. This includes the rights in Arts. 14, 19 and 21.
• Standing example: Tamil Nadu's 69% reservation law (1993) was placed in the Ninth Schedule by the 76th Amendment (1994). It is open to review under the Coelho test.

8. The amendment war over property

Step	Year	What happened
1st Amendment	1951	Added Arts. 31A and 31B and the Ninth Schedule. Upheld in Shankari Prasad (1951)
State of W.B. v. Bela Banerjee	1954	"Compensation" in Art. 31(2) must be a just equivalent of market value. Courts could check if it was enough
4th Amendment	1955	Made the adequacy of compensation non-justiciable (courts could not ask if the amount was fair)
17th Amendment	1964	Widened "estate" in Art. 31A. Required market-value compensation for land under a person's personal cultivation within the ceiling limit. Added 44 Acts to the Ninth Schedule
Golaknath v. State of Punjab	1967	11 judges, 6:5. Parliament cannot amend fundamental rights (amendment = "law" under Art. 13)
R.C. Cooper v. Union of India (Bank Nationalisation case)	1970	Struck down the bank nationalisation law of 1969, because its compensation method was not fair
24th Amendment	1971	Added Art. 13(4) and Art. 368(3). Amendments are outside Art. 13
25th Amendment	1971	Replaced "compensation" with "amount" in Art. 31(2). Added Art. 31C (laws giving effect to Art. 39(b) and (c) shielded from Arts. 14 and 19; see dpsp-fundamental-duties)
Kesavananda Bharati v. State of Kerala	1973	13 judges, 7:6. Parliament can amend any part, but cannot destroy the basic structure. The right to property is not part of the basic structure (NCERT)
44th Amendment	1978	Deleted Arts. 19(1)(f) and 31. Created Art. 300A

9. The 44th Amendment (1978) and Article 300A

• What changed:
• Art. 19(1)(f) and Art. 31 were deleted from Part III.

• Art. 300A was added in Part XII, in a new Chapter IV titled "Right to Property".

• Text of Art. 300A: "No person shall be deprived of his property save by authority of law" [4].

• Two places where a compensation guarantee survived:
• Art. 30(1A): if the State takes over the property of a minority educational institution, the amount paid must not restrict or cancel the minority's right under Art. 30(1).

• Second proviso to Art. 31A(1): for land under a person's personal cultivation within the ceiling limit, compensation must be at least market value.

• Status today:

• It is a constitutional right, but no longer a fundamental right. (NCERT Class 11 calls it a "simple legal right".)
• It cannot be enforced under Art. 32. A person must go to a High Court under Art. 226 or file a civil suit.
• "Authority of law" means a valid law made by a legislature. A mere executive order cannot take away property.

• Jilubhai Nanbhai Khachar v. State of Gujarat (1995): Art. 300A is not part of the basic structure. Art. 300A by itself does not promise compensation.

• The courts have since made it stronger:

• Vidya Devi v. State of H.P. (2020): the State took land in 1967 without following the law → the Court held this breached Art. 300A → it called the right to property a human right as well as a constitutional right.
• The Supreme Court has called the right both a constitutional and a human right [5].

10. Kolkata Municipal Corporation v. Bimal Kumar Shah (2024): seven sub-rights

• Facts: the Corporation tried to take land under a municipal Act section that had no proper acquisition procedure. The Supreme Court held that this was not "authority of law".
• Core holding: the right to property is made up of sub-rights that link together into the whole right [5].
• These sub-rights may look like procedures, but they are the real content of Art. 300A.

• Breaking any one of them means the acquisition is without the authority of law [5].

• The seven sub-rights [5]: 1. Right to notice: the owner must be told that the State plans to acquire the land. 2. Right to be heard: the owner can object. 3. Right to a reasoned decision: the State must give reasons for its decision. 4. Duty to acquire only for a public purpose. 5. Right of restitution or fair compensation. 6. Right to an efficient and expeditious process: no endless delay. 7. Right of conclusion: the process must formally end, with the land vesting in the State.

• The Court noted that Union and state laws already contain these principles in different forms [5].

11. Eminent domain and the LARR Act, 2013

• Eminent domain: the State's power to take private property for a public purpose, even without the owner's consent, by paying compensation.
• Current law: the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Act, 2013. It replaced the Land Acquisition Act, 1894.

• The Bill received the President's assent in 2013 [8]. Full text: India Code [10].

• Steps in acquisition under the LARR Act, 2013 [7]: 1. Social Impact Assessment (SIA): a study of how the project will affect local people. 2. Preliminary notification: a public notice that the State plans to acquire the land. 3. Declaration of acquisition. 4. Compensation, paid within a fixed time.

• Consent rules [7]:

Project type	Consent needed
Private company	80% of affected families
Public-private partnership (PPP)	70% of affected families
Government project for its own use	No consent rule

• Consent is gathered together with the SIA study [7].

• Compensation: up to four times the market value in rural areas and two times in urban areas, plus a 100% solatium (extra payment for forced sale).

• Rehabilitation and Resettlement (R&R) is also required: housing, jobs or annuity for displaced families.

• Later attempts at change:

• The 2015 ordinance let governments exempt five kinds of projects from the SIA and consent rules: national security and defence, rural infrastructure, affordable housing, industrial corridors, and infrastructure including PPP projects [9].

• Several states have made their own amendments. Examples are the Odisha and Assam amendment Bills of 2023 [11][12].

• Art. 39(b) after Property Owners Association v. State of Maharashtra (2024): not every private resource is a "material resource of the community". See dpsp-fundamental-duties.

Prelims Hooks

• Art. 12 defines "State" for Part III only. It was Draft Article 7, debated on 25 November 1948 [2].
• Pradeep Kumar Biswas (2002) → "deep and pervasive control" test. Ajay Hasia (1981) → a registered society can be the State.
• Trap: BCCI is not the State under Art. 12, but a writ under Art. 226 can still lie against it (Zee Telefilms, 2005).
• Rights that bind private persons by their own words: Arts. 15(2), 17, 23, 24. Kaushal Kishor (2023) extended this to Arts. 19 and 21.
• Art. 13(4) was added by the 24th Amendment (1971), not by the 1st or the 44th.
• Doctrine–case pairs: eclipse → Bhikaji Narain Dhakras (1955); waiver → Basheshar Nath (1959); severability → R.M.D.C. (1957); reading down → Kedar Nath (1962), Navtej (2018).
• Arts. 31A, 31B and the Ninth Schedule came from the 1st Amendment (1951). "Amount" replaced "compensation" in the 25th (1971). Property moved to Art. 300A in Part XII by the 44th (1978).
• Ninth Schedule cut-off date: 24 April 1973 (Waman Rao, 1981; I.R. Coelho, 2007, nine judges).
• Art. 300A is enforced under Art. 226, not Art. 32. It is not basic structure (Jilubhai Nanbhai Khachar, 1995).
• LARR Act 2013: consent of 80% for private projects and 70% for PPP projects. Bimal Kumar Shah (2024) lists seven procedural sub-rights under Art. 300A [5][7].

Mains Points

• Widening "State" vs privatisation: as the government outsources services to private firms, the instrumentality tests and Art. 226 keep public power accountable. Kaushal Kishor (2023) goes further and applies Arts. 19 and 21 to private actors. Critics say it gives no clear rules, and the judgment itself says legislation may be needed [6].
• Property: from fundamental right to procedural shield: the 44th Amendment (1978) ended the property fight by moving the right to Art. 300A. Vidya Devi (2020) and Bimal Kumar Shah (2024) have given it real procedural content, so the right is strong in practice even outside Part III [5]. This balances land reform and welfare (Art. 39(b)) with fairness to owners.
• The Ninth Schedule after Coelho: Art. 31B was meant to protect land reform laws. It was later used to protect unrelated laws, such as Tamil Nadu's 69% reservation law. Coelho's basic-structure review after 24 April 1973 balances Parliament's power to amend against the courts' role as protectors of rights.
• Land acquisition trade-off: the LARR Act 2013 rules on SIA, consent and 4x compensation protect farmers and tribal communities from displacement. Governments say these rules slow down infrastructure, which is why the 2015 ordinance proposed exemptions and states have passed their own amendments [7][9][11]. Reform could focus on time limits for the SIA and better R&R rather than removing consent.