"State" under article 12 of Indian Constitution: Definition, Meaning, Scope and Landmark Judgements | PCS J notes Indian Constitution - PCS J mains solved paper PDF free download
Introduction
Most of the Fundamental Rights contained in Part III of the Constitution are guaranteed against the State. Therefore, it becomes absolutely necessary to understand the scope and import of the term 'State'. The actions of any of the bodies comprised within the term 'State' as defined in Article 12 can be challenged before the court for violation of fundamental right. Article 12 defines 'State' the purpose of Part III of the Constitution. According to Article 12 the term 'State' included the following:
- 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 or other authorities within the territory of India.
- All local or other authorities under the control of Government of India
In reference to Article 12 the word 'authority' means power to make laws, orders, regulation, by-laws, regulations etc. The government and legislature are functional instrumentalities of the State and the State acts through them. Their acts are acts of the State. The authoritative will of the State is expressed in laws enacted by the legislature, executed by its government.
It is quite obvious that the wider the meaning attributed to the term 'other authorities' the vie will be the scope of the definition of the term State' and more and more authorities will be susceptible to trappings of fundamental rights.
In an era of welfare state, government performs large number of welfare activities.
Some of these activities are performed by traditional government departments and official bodies while many others are performed by autonomous bodies. Autonomous bodies may be statutory bodies or non-statutory bodies. Government departments and official bodies fall with the ambit of definition of State without a doubt but the important question is whether autonomous bodies fall within this scope? And if so, to what extent?
The Supreme Court has developed the concept of instrumentality of State. Any body which is regarded as instrumentality of State falls under Article 12. The expression 'other authorities' has been interpreted differently by courts. In University of Madras v. Santa Bai, (1954) Madras High Court held that other authorities' could only be interpreted by using the principle of ejusdem generis. According to the principle of ejusdem generis used in interpretation,wherever there is a genus, the following word should be interpreted with reference to that genus. Therefore, it could only mean authorities exercising governmental or sovereign functions.
In Ujjam Bai v. State of U.P., AIR 1962 SC 1621 Supreme Court rejected this interpretation and held that doctrine of ejusdem generis could only be made applicable where there was a distinct genus running through the bodies named or can be placed under one single category on any rational basis. Supreme Court in Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857 held that the expression 'other authorities' is wide enough to include all authorities created by the Constitution of statute or on whom the power is conferred by law. It is not necessary that the authority must be engaged in performing governmental or sovereign function.
In Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 Supreme Court held that if the functions of the corporations are of public importance and closely related to government functions then it should be treated as agency or instrumentality of government ie. State' within the meaning of Part III. The court also observed that even a non-statutory body can be regarded as State. In this case Supreme Court held three statutory bodies viz. Life Insurance Corporation (LIC), Oil and Natural Gas Corporation (ONCG) and Finance Corporation as 'State'.
In Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628, Supreme Court followed the broader test laid down in Sukhdev Singh's case. The court developed a general proposition that an 'instrumentality' or 'agency' of the State can be regarded as other authority within the meaning of Article 12. The court laid down following test to determine whether a body is an agency or instrumentality of the State:
In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, Supreme Court 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 court observed that the test is not how a juristic person is created but why it has been brought into existence. Once a body becomes authority for the purpose of Article 12 it becomes amenable to fundamental rights i.e. its actions can be challenged with reference to fundamental rights and also subject to the writ jurisdiction of Supreme Court and High Courts.
According to H. M. Seervai, the judiciary should be included under the definition of the 'State' and judge should be subject to writ jurisdiction of the Supreme Court.
Term "Local Authority" under Article 12
The term Local Authority' is defined in Section 3(31) of the General Clauses Act. It refers to authorities Municipalities, District boards, Village councils (Gram Panchayats), Improvement Trusts, Mining Settlement etc. For an authority to be characterized as local authority' it must have a separate legal existence. It must not be a mere government agency but must be legally and independent entity. It must function in a defined area and must ordinarily be elected by inhabitants of the area.Term "Other Authority" under Article 12
It is the most significant expression used in Article 12. The expression has not been defined in the Constitution and therefore, it has attracted a lot of judicial attention.It is quite obvious that the wider the meaning attributed to the term 'other authorities' the vie will be the scope of the definition of the term State' and more and more authorities will be susceptible to trappings of fundamental rights.
In an era of welfare state, government performs large number of welfare activities.
Some of these activities are performed by traditional government departments and official bodies while many others are performed by autonomous bodies. Autonomous bodies may be statutory bodies or non-statutory bodies. Government departments and official bodies fall with the ambit of definition of State without a doubt but the important question is whether autonomous bodies fall within this scope? And if so, to what extent?
The Supreme Court has developed the concept of instrumentality of State. Any body which is regarded as instrumentality of State falls under Article 12. The expression 'other authorities' has been interpreted differently by courts. In University of Madras v. Santa Bai, (1954) Madras High Court held that other authorities' could only be interpreted by using the principle of ejusdem generis. According to the principle of ejusdem generis used in interpretation,wherever there is a genus, the following word should be interpreted with reference to that genus. Therefore, it could only mean authorities exercising governmental or sovereign functions.
In Ujjam Bai v. State of U.P., AIR 1962 SC 1621 Supreme Court rejected this interpretation and held that doctrine of ejusdem generis could only be made applicable where there was a distinct genus running through the bodies named or can be placed under one single category on any rational basis. Supreme Court in Electricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857 held that the expression 'other authorities' is wide enough to include all authorities created by the Constitution of statute or on whom the power is conferred by law. It is not necessary that the authority must be engaged in performing governmental or sovereign function.
In Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 Supreme Court held that if the functions of the corporations are of public importance and closely related to government functions then it should be treated as agency or instrumentality of government ie. State' within the meaning of Part III. The court also observed that even a non-statutory body can be regarded as State. In this case Supreme Court held three statutory bodies viz. Life Insurance Corporation (LIC), Oil and Natural Gas Corporation (ONCG) and Finance Corporation as 'State'.
In Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628, Supreme Court followed the broader test laid down in Sukhdev Singh's case. The court developed a general proposition that an 'instrumentality' or 'agency' of the State can be regarded as other authority within the meaning of Article 12. The court laid down following test to determine whether a body is an agency or instrumentality of the State:
- Financial resources of the State is the chief funding source of the body.
- Existence of deep and pervasive State control.
- Functional character of the body is governmental in essence.
- Department of government is transferred to the corporation.
- Whether the Corporation enjoys monopoly status which is State conferred or State protected.
In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, Supreme Court 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 court observed that the test is not how a juristic person is created but why it has been brought into existence. Once a body becomes authority for the purpose of Article 12 it becomes amenable to fundamental rights i.e. its actions can be challenged with reference to fundamental rights and also subject to the writ jurisdiction of Supreme Court and High Courts.
Whether 'Judiciary' is considered to be a 'State' under Article 12?
Article 12 of the Constitution defines the word 'State. Judiciary is not expressly referred to in Article 12. There has always been a debate whether the judiciary, as an organ of government, should be included within the ambit of the term 'State'.According to H. M. Seervai, the judiciary should be included under the definition of the 'State' and judge should be subject to writ jurisdiction of the Supreme Court.
The question whether the judiciary comes under the word 'State' or not was considered by Supreme Court in Naresh v. State of Maharashtra, AIR 1967 SC 1.
Supreme Court did not express any definitive opinion on the matter. It said that even if the Court is considered within the meaning of 'State' a writ under Article 32 cannot be issued to a High Court against its judicial orders. The Supreme Court opined that such judicial orders cannot be said to violate the fundamental rights. Again in A.R Antulay v. R.S. Nayak, AIR 1988 SC 1531, the Constitution Bench of Supreme Court touched this question and held that court cannot pass an order or issue a direction which would be violative of fundamental rights. It means under Article 12 judiciary can also be included within the ambit of 'State'. However, the Supreme Court in this case did not overrule Naresh's case.
In Riju Prasad Sharma v. State of Assam, (2015) 9 SCC 461 Supreme Court categorically held that courts while acting on judicial side are not 'State' under Article 12 of the Constitution. When the courts act in purely administrative capacity then they may attract the writ jurisdiction against their administrative actions. Thus the position is amply clear that courts while acting on judicial side are not 'State' but they may attract the trappings of 'State' when they act in administrative capacity.
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💡PYQs on this topic :
Q. Against whom Fundamental Rights are available?
Q. Explain in detail the meaning and scope of the term 'State' in Part III of the Constitution. With the help of decided case.
Q. Discuss the concept of 'State' under Article 12 of the Constitution
Q. Discuss the concept of 'State' under Article 12 of the Constitution
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