repared by Assist. Professor Rekha Khandelwal
Part – III Fundamental Rights ( General)
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Fundamental Rights ( An Introduction)
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The Concept of the State Article 12
Question – Whether Judiciary is State or not ?
Question – Whether the University is State or not ?
In University of Madras v. Santa bai,[1] AIR 1954 Mad. 67 :
Restricted Interpretation.
It is held 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 [2]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 Umesh v. B. N. Singh,[3] AIR 1968 Patna 3
In this case the court held that Patna University comes under Art.12 definition of “State “.
In R.D Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 [4]–
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.
Imp. Case
In Ajay Hasia v. Khalid Mujib Sehravardi[5] AIR 1981 SC 487
In this case the Supreme Court followed above tests decided in R.D. Shetty .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 Societies Registration Act, 1860, or any other similar statute.
So, University comes under Art.12 definition of “State “ because it is created by an act of legislature. It functions by government , financial resources depends upon state fund , pervasive state control , it works as a body of public importance and enjoys monopoly status under state protection.
Janet Jeyapaul ( Dr.) v. SRM University,[6]AIR 2016 SC 73 at page no.79
Private University- S.R.M. University Madras, declared “Deemed University” by the Central Government under Section 3 of the UGC Act, the Management of which was in the private trust was held to be an authority provided under article 12 of the Constitution and amenable to the writ jurisdiction because :
1. It imparted education in higher studies to the students at large.
2. It discharged public functions by way of imparting education.
3. It was notified as a deemed university under Section 3 of the UGC Act.
4. being a deemed University by the Central Government under section 3 of the UGC Act, all the provisions of the UGC Act were made applicable to it which, inter-alia, provided for effective discharge of public function, namely, education for benefit of public.
5. Once it was declared as “deemed university” whose all functions and activities were governed by the UGC Act, like other universities, it was “other authority” within the meaning of article 12 of the Constitution.
6. Once it was held to be an authority as provided in article 12 then as a necessary consequence it was unable to reach the jurisdiction of high court under article 226 of the constitution.
After analysis the definition of the State, Case Law given by Courts It can be said that University comes under Art.12 definition of “State “
