Author Name:   Abhishek Negi

Part III of the Constitution deals with Fundamental Rights which are the restriction on the power of the legislature, executive and judiciary, that, no one can encroach upon this part. In order to define the scope of these rights and the scope of remedy under Article 32 constitution makers have defined “State” in the beginning

State Under Indian Constitution

Part III of the Constitution deals with Fundamental Rights which are the restriction on the power of the legislature, executive and judiciary, that, no one can encroach upon this part. In order to define the scope of these rights and the scope of remedy under Article 32 constitution makers have defined “State” in the beginning as under:

“the Government and the Parliament of India and the Government and the Legislature of each of the State and all local or other authority within the territory of India or under the control of the Government of India”

Therefore to understand the expanded meaning of the term “other authorities” in Article 12, it is necessary to trace the origin and scope of Article 12 in the Indian Constitution. Present Article 12 was introduced in the Draft Constitution as Article 7. While initiating a debate on this Article in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar described the scope of this Article and the reasons why this Article was placed in the Chapter on fundamental rights as followed:

“The object of fundamental rights is twofold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority – I shall presently explain what the word ‘authority’ means – upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village Panchayats and taluk boards, in fact every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws.

If that proposition is accepted – and I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by laws then, what are we to do to make our intention clear? There are two ways of doing it one way is to use a composite phrase such as ‘the State’, its we have done in Article 7; or, to keep on repeating every time, the Central Government the Provincial Government the State Government the Municipality, the Local Board, the Port Trust or any other authority’. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economies in words.”

From the above, it is seen that the intention of the Constitution framers in incorporating this Article was to treat such authority which has been created by law and which has got certain powers to make laws to make rules and regulations to be included in the term “other authority” as found presently in Article 12. This definition has given birth to series of judgments and cases primarily due to inclusion of words “authority” in the last part of the definition.

Attempts have been made to determine the scope this word initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdegeneris with the authorities mentioned in the definition of Article 12 itself.

The next stage was reached when the definition of ‘State’ came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature. Thus a statutory corporation, with regulations farmed by such Corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.

The decision of the Constitution Bench of this Court in Rajasthan Electricity Board v. Mohan Lal and Ors, is illustrative of this. The question there was whether the Electricity Board – which was a corporation constituted under a statute primarily for the purpose of carrying on commercial activities could come within the definition of ‘State’ in article 12.

Meaning of the State

According to Article 12 of the Constitution of India, the term ‘State’ can be used to denote the union and state governments, the Parliament and state legislatures and all local or other authorities within the territory of India or under the control of the Indian government.

Over the period of time, the Supreme Court has explained the ambit of ‘State’ to include Corporation such as LIC and ONGC since they perform tasks “very close to governmental or sovereign functions.” In fact, the term ‘State’ also accommodates any authority that’s created by the Constitution of India and has the power to make laws. It need not perform governmental or sovereign functions.

Understanding the Meaning of ‘State’ Under Article 12

Executive and legislature of Union and states include union and state governments along with Parliament and State legislatures. The President of India and Governors of states can also be referred as ‘State’ as they are a part of the executive. The term ‘government’ also includes any department of government or any institution under its control. The Income Tax Department and the International Institute for Population Sciences could be cited as examples.

‘Local authorities’, as used in the definition, refers to municipalities, Panchayats or similar authorities that have the power to make laws & regulations and also enforce them. The expression ‘Other authorities’ could refer to any entity that exercises governmental or sovereign functions.

Definition of State U/A 12

Article 12 defines the term ‘State’ as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term ‘State’ includes the following ;-
1. The Government and Parliament of India, i.e., Executive and Legislature of the Union.
2. The Government and Legislature of each State, i.e., Executive and Legislature of State..
3. All local and other authorities within the territory of India.
4. All local and other authorities under the control of the Government of India.

The term ‘State’ thus includes executives as well as the legislative organs of the Union and States. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.

a) Authorities – According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. In the context of Article 12, the word “authority” means the power to make laws, orders, regulations, bye-laws, notification etc. which have the force of law and power to enforce those laws.

b) Local Authorities - ‘Local authorities’ as defined in Section 3 (31) of the General Clause Act refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trust and Mining Settlement Boards. In Mohammed Yasin v. Town Area Committee, the Supreme Court held that the bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an order by a State authority contravened article 19 (1) (g). these bye-laws I effect and in substance have brought about a total stoppage of the wholesale dealer’s business in the commercial sense. In Sri Ram v. The Notified Area Committee, a fee levied under Section 29 of the U.P. Municipalities Act, 1919, was held to be invalid.

c) Other authorities - in Article 12 the expression ‘other authorities’ is used after mentioning a few of them, such as, the Government, Parliament of India, the Government and Legislature of each of the State and all local authorities. In University of Madras v. Santa Bai, the Madras High Court held that ‘other authorities’ could only mean authorities exercising governmental or sovereign functions. It cannot include persons, natural or juristic, such as, a University unless it is ‘maintained by the State’.

In Article 12 the bodies specifically named are the Government of the Union and the States, the Legislature of the Union and the States and local authorities. There is no common genus running through these named bodies nor can these bodies so placed in one single category on any rational basis.

In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that the expression ‘other authorities’ is wide enough to include all authorities created by the Constitution or statute on whom powers are conferred by law. It is not necessary that the statutory authority should be engaged in performing governmental or sovereign function.

Extended Interpretation of the term “State” applicable ONLY to Part III and Part IV

The extended Interpretation of the definition of the term ‘State’ is limited in its application only to Part III and Part IV and it does not extend to the other provisions of the Constitution, e.g., Article 309, 310, 311, which find a place in Part XIV.Therefore, an employee of a Statutory Corporation can claim the protection of Fundamental Rights but cannot seek the safeguards contained in Article 311 for the civil servants of the State.

Ajay Hasia – No Rigid Set of Principles

The question as to when a body can be said to fall within the scope of the term “State” within the meaning of Article 12 was considered by a Constitution Bench of seven learned Judges of the S.C. in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology. Referring to the different stages in the history of the development of the law by Judicial decisions on the subject and affirming the statement of the law made in Rajasthan S.E.B. v. Mohan Lal, the majority of five learned judges overruled Sabhajit Tewary v. Union of India, and held that the council of Scientific and Industrial Research, although a registered society, was a State within the meaning of Article 12.

Considering the test formulating in Ajay Hasia case, and holding that the tests so laid down, were not a rigid set of principles, so that if a body fell within anyone of them, it must, ex hypothesis, be considered to be a State within the meaning of Article 12, the majority ruled that the question in each case would be – “whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of Government. Such control must be particular to the body in question and must be pervasive.

Not all Statutory Bodies can be termed as ‘State’

Both statutory an non-statutory bodies can be considered as a ‘State’ provided they get financial resources from the government and “have deep pervasive control of government and with functional characters.” ONGC, Delhi Transport Corporation, IDBI, and Electricity Boards are referred as a ‘State’. However, entities such as NCERT cannot be considered a ‘State’ as they are not substantially financed by the government control is not pervasive.

Does State include Judiciary?

In America it is well-settled that the judiciary is within the prohibition of the 14th Amendment. The judiciary, it is said, though not expressly mentioned in Article 12 it should be included within the expression ‘other authorities’ since courts are set up by statute and exercise power conferred by law. it is suggested that discrimination may be brought about….even (by) judiciary and the inhibition of Article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of any one of the three limbs of the State.

Although there is no specific mention of judiciary in Article 12, legal experts are of the opinion that the judiciary should be included in the definition of State. According to one school of thought, the Supreme Court has the power to make rules (to regulate practice & procedure of courts), appoint its staff and decide its service conditions (as mentioned in Article 147 and 146 of the Indian Constitution). Hence, it perform the role of a State.

In one of its latest observations, the apex court has held that judiciary can be considered as a ‘State’ as far as its rule-making power is concerned, but it would not be considered so when it exercises its judicial powers.

The question whether the judiciary was included within the definition of the ‘State’ in Article 12 arose for consideration of the Supreme Court in Naresh v. State of Maharashtra. It was held that even if a Court is the State a writ under Article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. Mr. H.M. Seervai is of opinion that the judiciary should be included in the definition of ‘the State’ and a judge acting as a judge is subject to the writ-jurisdiction of the Supreme Court.

References
# 1948 (7) CAD 610
# (1968) ILLJ 257 SC
# AIR 1952 SC 115. See also Rasid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163
# AIR 1952 SC 118
# AIR 1954 Mad. 67
# AIR 1962 SC 121
# Shrikanta v. Vasantrao, (2006) 2 SCC 682
# SAIL v. National Union Water Front Workers, AIR 2001 SC 3527
# See S.L. Agarwal v. Hindustan Steel Ltd. , AIR 1970 SC 1150
# (2002) 5 SCC 111, see also V.K. Srivastava v. U.P.R.K.K. Nigam, AIR 2005 SC 411
# AIR 1967 SC 1857
# AIR 1975 SC 1329
# Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487
# Virina v. Rivers, (1980) 100 US 313, 318, 25 L Ed. 667
# V.N. Shukal – Constitutional Law of India, p 155 (1st ed.)
# AIR 1967 SC 1
# H.M. Seervai – Constitutional Law of India, p 20 (5th ed.)

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