Prepared by Assist. Professor Rekha Khandelwal
Part – III Fundamental Rights ( General)
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The Concept of State ( Article – 12)
The article talk about the concept of state under article 12. As we all know that Part III of the Indian Constitution guarantees fundamental rights to the people of India. The accepted fact is that these fundamental rights can only be claimed at state and the authorities of state but not at any private entity or individual.Thereby, the question of what constitutes the State is important.
Definition of State ( Article – 12)
Article 12 :- It defines the term ‘State’ as used in Part III of the Constitution. It states that unless the context otherwise requires the term ‘ State’ includes –
- The Government and Parliament of India, i.e. Executive and Legislature of the Union.
- The Government and the Legislature of each State, i.e. Executive and Legislature of States.
- All local and other authorities within the territory of India.
- All local and other authorities under the control of the India Government.
The term ‘ State’ includes executive as well as the legislative organs of the Union and States. So, the actions of these bodies can be challenged before the courts as violating fundamental rights.
1. The Government and Parliament of India
The term points to Union executive and legislature. This phrase can be understood by simple observation, whenever Parliament passes a bill and it gets the assent and is brought into force as an act. it is a function of the central legislature.If any act whole or in part infringes upon fundamental rights of an Individual, It will be questioned before the judiciaryand then the same is left to Judicial scrutiny.
Section 66A was challenged before the Honable Apex Court as being in violation of Article 19 and on the same basis was struck down and declared ultra vires. Now, the Information Technology Act, 2000 is a central law passed by the central legislature and therefore it cannot be allowed to violate fundamental rights as a state.
2. Government and Legislature of the States
The term points to State executive and legislature. This phrase can be understood by simple observation, whenever State Legislature passes a bill and it gets the assent and is brought into force as an act. it is a function of the State legislature.If any act whole or in part infringes upon fundamental rights of an Individual, It will be questioned before the judiciary and then the same is left to Judicial scrutiny.
3. All local and other authorities within the territory of India or under thecontrol of the India Government.
In the context of Article 12, the word “ authority” means the power to make laws, orders, regulations, bye-laws, notification etc. which has the power to enforce those laws.
(a) Local Authorities –
Local authorities as defined in section 3 ( 31) of the General Clauses Act refers to authorities like-
- District Boards,
- Improvement Trust and
- Mining Settlement Boards.
In Mohammed Yasin v. Town Area Committee AIR 1952 SC 115.
The SC 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 in 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 AIR 1952 SC 118
A fee levied under Section 2994 of the U.P. Municipalities Act, 1919, was held to be invalid.
(b) Other authorities –
Other authorities is the most disputed and discussed phrase of Article 12 . It is relevant that the evolutionary process of this concept is discussed to understand.
In University of Madras v. Santa bai, AIR 1954 Mad. 67 :
Restricted Interpretation –
It is held by Madras high Court that authorities exercising governmental or sovereign function would only be covered under other authorities. It could not include persons, natural or juristic, such as , a University unless ‘ maintained by the State’. The decision was on the basis of the principle of ejusdem generis or things of like nature.
In Ujjambai v. State of U.P AIR 1962 SC 1621
Liberal interpretation –
The Court rejected the interpretation of the expression ‘ other authorities’ given by Madras High Court on the basis of ejusdem generis and held that no restriction can be assigned to the interpretation of the term.
In Electricity Board v. Mohan lal AIR 1967 SC 1857,
It was held that it is not necessary for an authority to be engaged in sovereign or governmental function. So, the expression ‘other authorities’ will include Rajasthan Electricity Board, Cochin Devasom Board, Co – operative Society.
Sukhdev Singh v. Bhagatram AIR 1975 SC 1331
The Supreme Court followed the same test given in Electricity Board Rajasthan’s case and held that The Oil and Natural Gas Commission (ONGC), Life Insurance Corporation, (LIC), and Industrial Finance Corporation (IFC) are authorities within the meaning of Article 12 of the Constitution and therefore , they are ‘State’.
Most Imp. Case
In R.D Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 –
More broad and Liberal Interpretation-
The Court held that If a body is an agency or instrumentality of government it may be an ‘ authority’ within the meaning of Article 12.
In the case the Court laid down the following five tests for determining whether a body is an agency or instrumentality of the Government:-
- Financial resources of the State is the Chief funding source, i.e. the entire share capital of the corporation is held by Government,
- Existence of deep and pervasive State control,
- Functional character being Governmental in its essence, i.e., the functions of the corporation are of public importance and closely related to governmental functions.
- A department of Government is transferred to a corporation,
- Whether the corporation, enjoys monopoly status which is State conferred or State protected.
However, the Court held these not conclusive but illustrative only and would have to be used with care and caution.
Som Prakash v. Union of India, AIR 1981 SC 212
The Court held that a government company ( Bharat Petroleum Corporation) comes within the meaning of the expresssion ‘ the State’ used in Article 12.The expression ‘ other authorities’would include all constitutional or statutory authorities on whom powers were conferred for the purpose of carrying commercial activities or bodies created for the purpose of promoting economic activities.The expression ‘other authorities’ was not confined only to statutory corporations alone but would include a government company, a registered society, or bodies which had some nexus with government.
In Ajay Hasia v. Khalid Mujib Sehravardi AIR 1981 SC 487
It is held that a Society registered under the Societies Registration Act, 1898, is an agency or ‘instrumentality of the State’ and hence a ‘State’ within the meaning of Article 12.The test is not as to how the juristic person is created but why it has been brought into existence. A Corporation may be statutory corporation created by a statute or a government company formed under the Companies Act , 1956 or a Society registered under the Society registered under the Societies Registration Act, 1860, or any other similar statute.
In state of Assam v. Barak Upatyaka D.V. Karmchari Sansthan AIR 2009 SC 2249
The Supreme Court has held that the financial assistance provided by the State Government in the form of grant in aid Assam Cooperative Society continuously for some years does not make the society a State within the definition of State under article 12 of the Constitution and therefore, the State would not be responsible to bear and pay salaries and allowances of its employees by extending aid forever.
Satimbla Sharma v. Saint Paul’s Senior Secondary School,AIR 2011 SC 2926
Unaided minority Schools over which the Government has no administrative control are not “State” due to their authority under article 30 (1) of the Constitution within the definition of article 12 of the Constitution. The right cannot be claimed against unaided minority schools to equality which is available against the State and in the absence of any statutory provision or administrative instruction, unaided minority Institutions are under no obligation to pay equal pay for equal work to their teachers.
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All areas outside Indian territory but which are under or may come under the control of the Government of India, comes into the definition of State. Such a territory may come under India’s control by international agreement.Thus even such areas will be the subject to Part III and the residents of such areas may also claim the benefit of Fundamental Rights guaranteed in Part III.
So, it is impossible to make a close-ended category of entities which would be considered to be a State within the meaning of Article 12 of the Constitution in considring in considering various views and tests recommended by Supreme Court.
 AIR 1952 SC 115.
 AIR 1952 SC 118
 In University of Madras v. Santa bai,AIR 1954 Mad. 67
 In Ujjambai v. State of U.P AIR 1962 SC 1621
In Electricity Board v. Mohan lal,AIR 1967 SC 1857
Sukhdev Singh v. Bhagatram AIR 1975 SC 1331
 In R.D Shetty v. The International Airport Authority of India, AIR 1979 SC 1628
 Som Prakash v. Union of India, AIR 1981 SC 212
 In Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487
In state of Assam v. Barak Upatyaka D.V. Karmchari Sansthan, AIR 2009 SC 2249
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