Article 12 — Definition of "State"; Article 13 — Doctrine of Eclipse, Severability, Waiver

Articles 12 and 13 are the gateway to the entire chapter on fundamental rights. Article 12 answers the threshold question of against whom Part III rights may be enforced by giving an inclusive definition of "the State". Article 13 answers the next question of what happens to a law that disregards those rights. Read together they translate the abstract guarantees of Part III into a working test for invalidity, and in their interpretation the Supreme Court has built three of the most heavily examined doctrines in Indian constitutional law — the doctrine of eclipse, the doctrine of severability, and the doctrine of waiver.

The two Articles must be read in sequence. Without Article 12 there is no respondent against whom a writ may issue under Article 32 or 226. Without Article 13 there is no consequence attached to a violation. Together they convert the rights in Articles 14 to 32 from ethical aspirations into legal limitations. In M. Nagaraj v. Union of India (2006), the Supreme Court reaffirmed that fundamental rights are themselves a limitation on the power of the State; Article 12 identifies the body so limited, and Article 13 prescribes the consequence of crossing that limit.

Text of Article 12

Four limbs follow from this definition. First, the Union Government and Parliament. Second, the Government and Legislature of every State. Third, all local authorities within the territory of India. Fourth, all other authorities within the territory of India or under the control of the Government of India. The expression is inclusive — the word "includes" was held in Gulam Abbas v. State of U.P., AIR 1981 SC 2198 to extend the definition to every action, whether administrative, judicial or quasi-judicial, that can be brought within the fold of "State action" infringing a fundamental right.

Why Article 12 matters — scope and operation

Article 12 occurs in Part III itself and so the definition is engineered solely for Part III obligations. The framers wanted a wide net: any organ that could realistically threaten the individual's rights would be hauled into the definition so that the corresponding writ remedy could be invoked. Article 12 therefore gives an extended meaning to the words "the State" wherever they occur in Part III. Outside Part III — for example for the purposes of Articles 309, 310 and 311 — the same definition does not necessarily apply, as held in Dasaratha Rama Rao Gazula v. State of A.P., AIR 1961 SC 564.

That confinement matters. A body that is not "State" under Article 12 cannot be sued for breach of Articles 14, 19 or 21. But a writ jurisdiction under Article 226 may still lie against it on non-constitutional grounds, for example when it discharges a public duty or its acts are supported by public officials. The two jurisdictions overlap but are not identical, and the practical exam-angle distinction (which surfaces in both judiciary mains and CLAT PG) is to keep the Article 12 question separate from the Article 226 question.

"Local authorities"

The expression carries the meaning given by Section 3(31) of the General Clauses Act, 1897 — a body legally entrusted by the Government with the control or management of a municipal or local fund. A Panchayat (Ajit Singh v. State of Punjab, AIR 1967 SC 856) and a Port Trust (Madras Pinjrapole Management v. Labour Court, AIR 1961 Mad. 234) qualify. A Housing Board, however, is an "authority" under Article 12 but not a "local authority" because it lacks the representative character that the latter expression requires (Housing Board of Haryana v. Haryana Housing Board Employees' Union, (1996) 1 SCC 95). The Calcutta State Transport Corporation and U.P. Forest Corporation have been similarly classified.

"Other authorities" — the long doctrinal arc

The expression "other authorities" has been the principal battleground of Article 12 jurisprudence. The framers' intention, as recorded in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, was to embrace authorities created by law and vested with the power to make laws, rules or regulations, with the limited objective of granting judicial review of their actions. Beyond that intentional core, the Supreme Court has, decade after decade, expanded and contracted the field.

Initially the definition was treated as exhaustive. The bodies named in Article 12 were used to anchor an ejusdem generis reading and "other authorities" was confined to bodies of the same genus. That reading was buried in Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857, where the Court held that no common feature ran through the named bodies and that ejusdem generis therefore could not narrow the expression. The State Electricity Board, though carrying on commercial activity, was held to be "State" because it exercised statutory powers under a parent Act.

The next stage was the "instrumentality" doctrine. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, the Supreme Court held that creatures of statute carrying out important State functions, where the State exercised pervasive control over their activities, would fall within Article 12. In Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, Bhagwati J. drew on the United States "State action" doctrine to articulate a principled test: a body that is in reality an instrumentality or agency of the Government, even if it has its own corporate personality, is itself "the State".

Ajay Hasia tests — the seven-factor framework

The fullest articulation came in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, where the Supreme Court distilled the indicia of an instrumentality or agency of the State into a checklist that judiciary aspirants must commit to memory:

1. Whether the entire share capital is held by the Government.
2. Whether the corporation enjoys a monopoly status conferred by the State.
3. Whether the functions of the corporation are governmental functions or functions closely related thereto.
4. Whether a department of the Government has been transferred to the corporation.
5. The volume of financial assistance received from the State.
6. The quantum of State control.
7. Whether any statutory duties are imposed upon the corporation.

The seven indicia are not cumulative requirements. The character of the corporation may also change with reference to the function it is performing at a given moment, as the Supreme Court accepted in M.C. Mehta v. Union of India, AIR 1987 SC 1086. A body may be "State" for the purpose of one activity and not another.

Pradeep Kumar Biswas — the modern restatement

The seven-factor test was, however, recalibrated by a seven-judge Bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111. The Court held that the Ajay Hasia indicia are not a rigid set such that satisfaction of any one of them automatically converts a body into the "State". The real question, the Court said, is whether the body is financially, functionally and administratively dominated by, or under the control of, the Government. That control must be both particular to the body and pervasive. Mere regulatory control — the kind that any State exercises over private enterprise generally — is insufficient. On that test, the Council of Scientific and Industrial Research (CSIR) was held to be "State".

Zee Telefilms — the doctrine pauses

In Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, the Supreme Court declined to extend the definition further to absorb the Board of Control for Cricket in India (BCCI). The majority held that the socio-economic policy of the Government had changed: the State was distancing itself from commercial activity and concentrating on governance. Hence there was no need to expand "other authorities" further by judicial interpretation. The minority opinion, however, recorded a useful list of seven tests for identifying private bodies that perform a public function — whether the body acts as a public authority, whether it is bound to protect human rights, whether it regulates a profession or vocation, whether it regulates a right under Article 19(1)(a), whether it exercises a de facto or de jure monopoly, whether the State outsources its legislative power in its favour, and whether it carries a positive obligation of public nature.

Bodies held to be "State"

The catalogue is long and steadily growing. Public sector undertakings such as Bharat Petroleum Corporation, Coal India and Mahanadi Coalfields, Food Corporation of India, Hindustan Steel Works Construction, Steel Authority of India, Indian Bank, State Bank of India and the nationalised banks have all been brought within Article 12. Statutory corporations — State Electricity Boards, Road Transport Corporations of Andhra Pradesh and Rajasthan, State Financial Corporations of Haryana, Karnataka and U.P., District Cooperative Banks, Maharashtra Jeevan Pradhikaran — qualify. Statutory authorities such as the Delhi Development Authority, Indore Development Authority, Delhi Stock Exchange, Council of Scientific and Industrial Research, National Institute of Technology, Nehru Yuva Kendra Sangathan and the Medical Council of India (for certain purposes) all fall within the net. Even the Shrine Board constituted under the J&K Shri Mata Vaishno Devi Shrine Act, 1988 was held to be "State".

Bodies held NOT to be "State"

The negative list is shorter but doctrinally important. The Board of Control for Cricket in India is the leading example, after Zee Telefilms. The International Commission on Irrigation and Drainage, the International Crops Research Institute (ICRISAT), the St. John Ambulance Association, the Zoroastrian Cooperative Housing Society and the Orissa State Electricity Board (in a particular factual context) have been held outside the definition. A registered society that is not an instrumentality of the State, a private educational institution that has merely received recognition or affiliation, and a non-statutory body exercising no statutory powers will likewise not qualify.

Is the judiciary "State"?

This question has divided benches across decades. In Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, a nine-judge Bench held that a judicial decision purporting to decide a controversy between parties cannot be said to affect the fundamental rights of citizens under Article 19(1)(a). In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, a seven-judge Bench held that a direction of the Supreme Court that infringed the petitioner's right under Article 14 could be rectified ex debito justitiae in exercise of inherent power. In Triveniben v. State of Gujarat, (1989) 1 SCC 678, a five-judge Bench reaffirmed that a judgment cannot be challenged under Article 14 or 21. The settled position now flows from Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 — a final judgment of the Supreme Court cannot be assailed under Article 32, because superior courts in their judicial capacity do not fall within "State" under Article 12. The curative-petition jurisdiction grew out of that decision. Crucially, Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461 clarified that courts are excluded from Article 12 only insofar as their judicial orders are concerned; when acting purely in their administrative capacity, they are within the definition.

Norms for the exercise of State power

Once a body crosses the Article 12 threshold, the consequences are not merely procedural. The body must act fairly, reasonably and bona fide. As the Supreme Court held in Manjushree Pathak v. Assam Industrial Development Corporation Ltd., (2000) 7 SCC 390, an authority within Article 12 cannot abdicate its duty to act reasonably, fairly and judiciously in the exercise of its discretion. Even in contractual matters the State must take into account only relevant materials (Biman Krishna Bose v. United India Insurance Co. Ltd., (2001) 6 SCC 477). The State is also a model employer and must comply with the constitutional scheme of Articles 14 and 16 in every appointment it makes (Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1). These threads loop forward into the right to equality and the doctrine of arbitrariness developed in E.P. Royappa and Maneka Gandhi.

Text of Article 13

Clause (1) deals with pre-Constitution laws. Clause (2) deals with post-Constitution laws. Clause (3) defines what counts as "law" and "laws in force". Clause (4), inserted by the Twenty-fourth Amendment in 1971, takes constitutional amendments outside the purview of Article 13. Each of these gives rise to a distinct body of doctrine.

Article 13(1) — pre-Constitution laws

The leading case is Keshavan Madhava Menon v. State of Bombay, 1951 SCR 228. The Supreme Court held that Article 13(1) does not render existing laws void ab initio. The whole of Part III is prospective. Pre-Constitution laws inconsistent with Part III are rendered void only with effect from 26 January 1950 — the date the rights came into existence. Past and closed transactions, and rights and liabilities that had already accrued under the inconsistent law before that date, are unaffected. A conviction recorded before the Constitution under a then-valid law is not retrospectively wiped out merely because the offence-creating provision violates a fundamental right.

An unconstitutional procedure laid down by a pre-Constitution statute does not, however, govern pending proceedings or new proceedings instituted after the commencement of the Constitution; nobody has a vested right in any course of procedure (Lachmandas Kewalram v. State of Bombay, 1952 SCR 710). And if the proceeding had become final before the Constitution came into force, no part of the Fundamental Rights Chapter operates retrospectively to disturb it (Abdul Khader v. State of Mysore, AIR 1953 SC 355).

Doctrine of eclipse

The doctrine of eclipse is the most distinctive contribution of Article 13(1). It was christened in Bhikaji Narain Dhakras v. State of M.P., 1955 (2) SCR 589. The Court held that the effect of Article 13(1) is not to obliterate the inconsistent law from the statute book for all time. The pre-Constitution law remains good against persons who do not enjoy the fundamental right concerned — for example, against aliens, in the case of rights conferred only on citizens. As regards citizens, a shadow is cast on the law by the supervening constitutional inconsistency. If that shadow is later removed — by amendment of the Constitution, or by amendment of the impugned law itself — the eclipse falls away and the law shines forth in its full vigour from the date the shadow was lifted.

The classic illustration is the C.P. and Berar Motor Vehicles (Amendment) Act, 1947, considered in Bhikaji. The provision authorising the State to monopolise road transport became inconsistent with the Article 19(1)(g) guarantee when the Constitution came into force. By the First Amendment in 1951, however, Article 19(6) was amended to permit such monopolies. The pre-Constitution provision was held to revive automatically: the eclipse stood removed and all acts done under the law since the amendment were valid. The same logic was reaffirmed in Behram Khurshid Pesikaka v. State of Bombay, 1955 (1) SCR 613.

The eclipse doctrine, however, applies only to pre-Constitution laws. It cannot be invoked to revive a post-Constitution law that contravened Part III at its inception, because such a law is, on the authority of Deep Chand v. State of U.P., AIR 1959 SC 648, void ab initio and stillborn. A stillborn statute cannot be resurrected by amendment unless the amendment is itself made retrospective (Jagannath L. v. Authorised Officer, AIR 1972 SC 425).

Article 13(2) — post-Constitution laws

The wording of Clause (2) is sharper than Clause (1). Where Clause (1) operates on pre-existing laws prospectively from 26 January 1950, Clause (2) prohibits the State from making any law which takes away or abridges the rights conferred by Part III. A law made in contravention is void to the extent of the contravention. Critically, on the authority of Deep Chand, that voidness is ab initio — the law is dead from the very beginning, never came alive, and even convictions made under it must be set aside (Keshavan Madhava Menon) — a logic that runs into Article 20 protection against ex post facto criminal liability. Anything done under such a stillborn law is wholly illegal, and no subsequent event revives it (State of M.P. v. Bharat Singh, AIR 1966 SC 1170).

The mandate of Article 13(2) applies equally to Parliament when it functions as a legislature for making an Act. Parliament cannot be deemed to have considered something that was already dead, and a stillborn law cannot be read for any purpose whatsoever. The offending law, however, is not wiped out from the statute book altogether — it remains operative against persons not entitled to the fundamental right concerned, for example against non-citizens in respect of an Article 19 right (Bhikaji).

Doctrine of severability

The words "to the extent of the inconsistency or contravention" in both Clauses (1) and (2) are the textual home of the doctrine of severability. When some particular provision of a statute offends a constitutional limitation but is severable from the rest, only that provision will be declared void; the remainder of the statute survives. The leading articulation is in State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, where the Supreme Court adopted the test of inextricable interdependence: whether what remains is so bound up with the part declared invalid that it cannot survive independently, or whether the Legislature would have enacted the valid part standing alone.

Two corollaries follow. First, where good and bad provisions are joined by "and" or "or" and the enforcement of the good is not made dependent on the bad, the two are severable and the good provision will be upheld (Kameshwar Singh). Second, where there is a single provision that hits both valid and invalid objects, and the language is wide enough to cover both, severance is impossible without judicial rewriting and the entire provision must fall. The locus classicus is Romesh Thappar v. State of Madras, 1950 SCR 594, where the Supreme Court struck down Section 9(1-A) of the Madras Maintenance of Public Order Act because the restrictions it imposed could not be confined to the constitutionally permissible head of "public order". The Court's holding deserves repetition in any answer on severability: where a law authorises the imposition of restrictions in language wide enough to cover both permissible and impermissible territory, and severance is not possible, the law must be held wholly unconstitutional and void.

The principle reappeared in R.M.D. Chamarbaugwalla v. Union of India and was applied to severability of definitions, restrictions, and prize-competition provisions; it is a fixture of the Constitution paper in every Constitution of India judiciary syllabus. The Supreme Court in Sub-Inspector Roopial v. Lt. Governor, (2000) 1 SCC 644 quashed only the offending part of the Office Memorandum dated 29 May 1986 dealing with the absorption and seniority of deputationists, leaving the remainder intact — a textbook illustration of severance in operation.

Reading down — the cousin of severability

Where severance is technically impossible but the statute is capable of a constitutional reading, courts prefer the technique of "reading down" rather than striking down. Whenever it is possible to uphold legislation by reading it down, the Court must do so; only where reading down is impossible does the legislation fall (Punjab Dairy Development Board v. Cepham Milk Specialties Ltd., (2004) 8 SCC 621). The same instinct underlies the presumption of constitutionality that the Court repeatedly affirms — between two interpretations, one valid and one void, the former must prevail (Karnataka Bank Ltd. v. State of A.P., (2008) 2 SCC 254).

Doctrine of waiver — and why it does not apply

Can a citizen waive a fundamental right and contract out of Part III? The short answer is no. The question travelled a long arc before being settled. In Behram Khurshid Pesikaka v. State of Bombay, 1955 (1) SCR 613, Venkatarama Aiyar J. expressed the view that rights created for the benefit of individuals (as distinguished from public interests) — including Article 19(1) rights — could be waived. The majority, on reference, refused to commit themselves but observed that fundamental rights, though primarily for the individual's benefit, had been put into the Constitution on grounds of public policy and could not be waived.

The matter was settled in Basheshar Nath v. Commissioner of Income Tax, AIR 1959 SC 149. Bhagwati and Subba Rao JJ. held that a fundamental right is in the nature of a prohibition addressed to the State, and that none of the fundamental rights can be waived by an individual. The reasoning is structural: a prohibition on the State cannot be lifted by the consent of the very person whom the prohibition is meant to protect. The view was reaffirmed by a Constitution Bench in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, which held unanimously that there can be no estoppel against the Constitution and a person cannot waive any fundamental right conferred by Part III by any act of his.

Allied to waiver is the question of acquiescence. A person who has merely received a benefit under a statute is sometimes said to be precluded from challenging its constitutional validity, and in Nain Sukh Das v. State of U.P., 1953 SCR 1184, the Supreme Court held that a person who had acquiesced in an election conducted on the basis of communal electorates could not later seek relief under Article 32. But the correct rule, made clear in Re Kerala Education Bill, AIR 1958 SC 956, is that a fundamental right cannot be lost merely by non-exercise. And in Dasaratha Rama Rao Gazula v. State of A.P., AIR 1961 SC 564, the Court held that a person who has applied for an office created by an Act is not precluded from later challenging the constitutionality of the Act on the ground that it violates his right under Article 16.

What counts as "law" — Article 13(3)(a)

The definition of "law" in Clause (3)(a) is deliberately wide. It includes Ordinances, orders, bye-laws, rules, regulations, notifications, customs and usages having the force of law. Intra vires statutory orders qualify (Bidi Supply Co. v. Union of India, 1956 SCR 267). A custom having the force of law qualifies (Bhau Ram v. Baijnath Singh, AIR 1962 SC 1476). A statutory scheme qualifies. But administrative orders without statutory sanction do not (Dwarka Nath Tewari v. State of Bihar, AIR 1959 SC 249); the Flag Code, being executive instructions, is not law; bye-laws of a co-operative society — being articles of association — are not law unless made under statutory power; and Government circulars are not law within the meaning of Article 13 (State of Kerala v. Chandramohanan, (2004) 3 SCC 429).

Two consequences follow. First, an administrative order that offends a fundamental right is not insulated merely because it does not fall within the Article 13 definition; it can still be struck down for breach of any Part III provision (Bidi Supply Co.). Second, a rule, order or notification under a parent statute may itself be unconstitutional even if the parent statute is not — the validity of the subordinate instrument is to be tested independently (Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21).

Article 13(4) — constitutional amendments

Article 13(4) was inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, in the wake of Golak Nath v. State of Punjab, AIR 1967 SC 1643, where the majority had held that an amendment of the Constitution under Article 368 was a "law" within Article 13(2) and therefore could not abridge fundamental rights. The Twenty-fourth Amendment expressly took constitutional amendments outside Article 13, and Clause (1) of Article 368 was simultaneously redrafted. The amendment was upheld in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, but the same Bench held that Article 368 does not enable Parliament to alter the basic structure of the Constitution. The basic structure doctrine — examined in detail in the chapter on the basic structure doctrine — is therefore the modern check on the freedom that Article 13(4) gives the amending power.

Grounds of unconstitutionality — a quick map

Article 13 makes contravention of Part III one ground of unconstitutionality, but it is not the only one. A law may be invalid on five distinct grounds: (i) contravention of a fundamental right; (ii) legislating on a subject not assigned to that legislature by the Seventh Schedule, read with the related Articles; (iii) contravention of any other mandatory limitation in the Constitution, e.g. Article 301; (iv) extra-territorial operation, in the case of a State law; and (v) excessive delegation or abdication of essential legislative function. By contrast, the law cannot be invalidated on the ground that the law-making body did not apply its mind, was prompted by an improper motive, contravened a Directive Principle, or because subsequent constitutional limitations did not exist at the time of enactment.

Effect of a law being declared unconstitutional

By Article 141, a declaration by the Supreme Court that a law is unconstitutional binds all courts. The decision operates as a judgment in rem; in any later proceeding the affected party need not establish the unconstitutionality afresh. Where part of a section is declared invalid, the section is read by all subordinate courts as if the invalid part were not there. Crucially, no distinction is drawn between invalidity for lack of legislative competence and invalidity for breach of Part III — Article 245(1) provides that the legislative power is subject to the other provisions of the Constitution, so a Legislature breaching Part III is in the same position as a Legislature legislating beyond its competence (Behram).

The Legislature cannot directly override a judicial declaration of unconstitutionality. It may, however, enact a fresh law free from the original infirmity and then provide that anything done under the offending law shall be deemed to have been done under the new law (Sadasib Prakash Brahmachari v. State of Orissa, 1956 SCR 43). And a Proclamation of Emergency under Article 352, although it suspends the operation of Article 19 by Article 358, does not validate a pre-existing law that was already void under Article 13(2) — such a law is dead and cannot be revived by an Emergency.

How Article 12 and Article 13 interlock

The relationship between the two Articles repays closer attention. A petitioner who alleges a violation of Articles 14 to 32 must first satisfy Article 12 — the respondent must be "State" or an instrumentality of the State. Once that threshold is crossed, Article 13 supplies the remedy: the impugned law (or rule, regulation, byelaw or custom) is void to the extent of contravention. Article 13 also dictates the temporal logic — pre-Constitution laws fall under the eclipse doctrine, post-Constitution laws are stillborn. The doctrine of severability runs across both clauses; the doctrine of waiver disposes of the defence that the petitioner cannot complain because she consented or applied for the position.

For the exam-aspirant the cluster maps cleanly. A factual problem will usually require you (i) to test the respondent against Article 12 and the Pradeep Kumar Biswas restatement of Ajay Hasia, (ii) to identify whether the offending instrument is pre- or post-Constitution, (iii) to apply eclipse or void ab initio as the case may be, (iv) to consider whether the offending portion can be severed or read down to save the remainder, and (v) to dismiss any waiver-based defence by reference to Basheshar Nath and Olga Tellis. These five steps — together with the ancillary doctrines on locus standi and presumption of constitutionality — exhaust nearly every Article 12/13 problem the syllabus throws up.

Examination angle — distinctions to memorise

Three distinctions repeatedly surface in mains and prelims. First, the difference between Article 13(1) and Article 13(2) — the former renders pre-Constitution laws prospectively void, the latter renders post-Constitution laws void ab initio. Second, the difference between an "instrumentality or agency" and an "other authority" — an authority must be sui juris, while an instrumentality may merely be a juridical entity functionally and administratively dominated by the Government; an authority may also be an instrumentality, but not vice versa. Third, the difference between waiver and acquiescence — waiver of a fundamental right is impossible after Basheshar Nath and Olga Tellis, but the receipt of benefits or non-exercise of a right is, on certain facts, capable of giving rise to estoppel-like consequences in narrow contexts (Nain Sukh Das), although the basic rule remains that a fundamental right cannot be lost by non-exercise (Re Kerala Education Bill).

Read in this way, Articles 12 and 13 are not two technical provisions but the structural spine of Part III. The chapter on the right to constitutional remedies rests on them, the doctrines worked out under Article 14 presuppose them, and every writ issued under Article 21 ultimately runs back to the Article 12 question of who the respondent is and the Article 13 question of what survives. The case law collected in the chapter on landmark constitutional cases — Bhikaji, Behram, Deep Chand, Basheshar Nath, Romesh Thappar, Ajay Hasia, Pradeep Kumar Biswas, Zee Telefilms, Kesavananda Bharati — should be re-read in light of these two foundational provisions.