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constitutional_law:part-1:state-under-article-12

Meaning of State under Article 12 of the Constitution

The word ‘State’ is defined under Article 12 of Part III of the Constitution which says,In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

By a plain reading of Article 12, we can understand that the following comes under the meaning of state.

  1. Government and Parliament of India, that is, executive and legislative organs of the Union government.
  2. Government and legislature of states, that is, executive and legislative organs of state government.
  3. All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.
  4. All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

The definition given in Article 12 is not an explanatory and restrictive definition but an extensive definition. From the above definition it can be said that state will include not only the Executive and Legislative organs of the Union and the States, but also local bodies (that is, municipal corporations) as well asother authorities, which include the instrumentalities or agencies of the State, or bodies (or institutions) which discharge public functions of governmental character; in other words, it comprises of all acts which can be brought within the fold of State Action.

It is necessary to note that, the concept of State Action has been enlarged to bring within its domain acts done by private persons or bodies exercising statutory powers or, acts supported by the State, with or without legislative authority or in abuse of such authority, or even where the State has become involved in private action.

Unless the context otherwise requires: The context of a provision in Part III may exclude the meaning given by Article 12 to the word ‘State’. For instance, ‘security of state’ in Article 19(2) refers not to the persons carrying on the administration of the State but to the State as an organized political society.

Difference between the expression "state" and "the state"

Article 12 defines the expression “the State” while the other Articles of the Constitution such as Article 152 and Article 308, and clause (58) of section 3 of the General Clauses Act defines the term “State”. The deliberate use of the expression “the State” in Article 12 as also in Article 36 would have normally shown that this expression was used to denote the State in its ordinary and Constitutional sense of an independent or sovereign State and the inclusive clause in Article 12 would have extended this meaning to include within its scope whatever has been expressly set out in Article 12.

The definition of the expression “the State” in Article 12, is however, for the purposes of Parts III and IV of the Constitution. The contents of these two Parts clearly show that the expression “the State” in Article 12 as also in Article 36 is not confined to its ordinary and Constitutional sense as extended by the inclusive portion of Article 12 but is used in the concept of the State in relation to the Fundamental Rights guaranteed by Part III of the Constitution and the Directive Principles of State Policy contained in Part IV of the Constitution which Principles are declared by Article 37 to be fundamental to the governance of the country and enjoins upon the State to apply in making laws.1)

Authority

‘Authority’ means a person or body exercising power, or having a legal right to command and be obeyed. ‘An Authority’ is a group of persons with official responsibility for a particular area of activity and having a moral or legal right or ability to control others.

The meaning of the word “authority” given in webster’s third new international dictionary, which can be applicable, is “a public administrative agency or corporation having quasi-governmental powers authorized to administer a revenue-producing public enterprise”.

This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions.

Local Authorities

Article 367 of the Constitution provides that the General Clauses Act, 1897, shall apply for the interpretation of the Constitution. So, it is permissible to go to that Act for a definition of local authority. In Section 3 (31) Local Authority is thus defined :

Local authority shall mean a municipal committee, District Board, body or port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.2)

The expression 'local authorities' partakes of the features which characterise the Government and Legislature of the Union and a State, though in a limited way, inasmuch as a local authority, such as a municipality, exercises governmental powers within a local area and also legislative powers, though of a subordinate nature, within the limits imposed by the statute which creates the municipality.3)

Municipal Corporation of Delhi v. Birla Cotton, Spinning & Weaving Mills Delhi

In this case4) supreme court describing some of the attributes of local bodies, held as follows: “Local bodies are subordinate branches of governmental activity. They are democratic institutions managed by the representatives of the people. They function for public purposes and take away a part of the government affairs in local areas. They are political sub-divisions and agencies which exercise a part of State functions. As they are intended to carry on local self-government, the power of taxation is a necessary adjunct to their other powers. They function under the supervision of the Government.

Other Authorities

Supreme Court seven-Judges Bench in Smt. Ujjam Bai Vs. State of Uttar Pradesh and Anr held that the words “other authorities” employed in Article 12 are of wide amplitude and capable of comprehending every authority created under a statute and though there is no characterisation of the nature of the “authority” in the residuary clause of Article 12 it must include every authority set up under a statute for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duties to make decisions in order to implement those laws.5)

It should be remembered that expanded and widened definition of the expression 'other authority' in Article 12, is only for the purpose of extending the enforcement of fundamental rights against instrumentalities or agencies of the Government.6)

The expression other authorities refers to Instrumentalities or agencies, of the Government and Government Departments. But every instrumentality of the Government is not necessarily a ‘Government Department

Doctrine of Instrumentality

Supreme Court of India formulated a test in the case of R.D. Shetty v. International Airport Authority of India7) to determine which “other authorities” could be considered as agencies or instrumentalities of state. Let us cull out from Airport Authority's case the indicia of “other authorities. . . under control of the Government of India” bringing a corporation within the definition of “the State”. The following factors have been emphasised in that ruling as telling, though not clinching. These characteristics convert a statutory corporation, a Government company, a co-operative society and other registered society or body into a State and they are not confined to statutory corporations alone. We may decoct the tests for ready reference:

  1. One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
  2. Existence of deep and pervasive State Control may afford an indication that the Corporation is a State agency or instrumentality.
  3. It may also be a relevant factor. . . .whether the corporation enjoys monopoly status which is State conferred or State protected.
  4. If the functions of the corporation are of public importance and, closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
  5. Specifically, if a department of Government is transferred to a corporation it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.

Whether ‘state’ Includes Judiciary?

The definition of State under Article 12 of the Constitution does not explicitly mention the Judiciary. Hence, a significant amount of controversy surrounds its status with respect to Part III of the Constitution.

Bringing the Judiciary within the scope of Article 12 would mean that it is deemed capable of acting in contravention of Fundamental Rights. It is well established that in its non-judicial functions, the Judiciary does come within the meaning of State. However, challenging a judicial decision which has achieved finality, under the writ jurisdiction of superior courts on the basis of violation of fundamental rights, remains open to debate.

In Naresh v. State of Maharashtra8) the issue posed before the Supreme Court for consideration was whether judiciary is covered by the expression ‘State’ in Article 12 of the Constitution. The Court held that the fundamental right is not infringed by the order of the Court and no writ can be issued to High Court.

This question has raised a controversy, because of non-mentioning of judiciary under Art, 12. Judiciary is the prominent organ of the State. Legislature frames the law and executor organ implements them and enjoys vast power of delegated legislation as well. One of the most important functions of Judiciary is to check invasion of fundamental rights by these two organs and their instrumentality.

Judiciary is to turn down the rules, regulation etc. which are in clear violation of fundamental rights. Inclusion of judiciary under Article 12 sets judiciary as the possible violator of fundamental rights as well. Judiciary being the guardian of the Constitution is not supposed to violate the Fundamental Rights.

Jurists like H.M.Seervai, V.N.Shukla consider judiciary to be State. Their view is supported by Articles 145 and 146 of the Constitution of India.

  • The Supreme Court is empowered to make rules for regulating the practice and procedure of Courts.
  • The Supreme Court is empowered to make appointments of its staff and servants; decide its service conditions. Such kind of administrative duties of the judiciary bring it within the purview of the definition of State

Also, in A.R. Antulay v. R.S. Nayak9) and N.S.Mirajkar v. State of Maharashtra10), it has been observed that while exercising the rule making powers, the judiciary is covered by the expression state within Art.12 but while performing its judicial functions it is not so included.

In Riju Prasad v. State of Assam it was held that “The definition of ‘the State’ under Article 12 is contextual depending upon all relevant facts including the concerned provisions of Part III of the Constitution. The definition is clearly inclusive and not exhaustive. Hence, omission of judiciary when the Government and Parliament of India as well as Government and Legislature of each State has been included is conspicuous but not conclusive that judiciary must be excluded.”

Quasi Judicial Authority

In Smt. Guddi Devi vs The State Election Commissioner11) the Punjab-Haryana High court held that ”The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.

Can the State claim ‘fundamental rights’ for itself?

In Election Commissioner v. State of Haryana, it was held that where a State (State Government) is affected by an order of an independent public body, for example, the Election Commission, to which Article 131 has no application, the State (State Government) can file a writ petition under Article 226 of the Constitution of India, 1950.

In the case of, Corporation of Nagpur v. N.E.L. & P. Co. it was held that, a local authority having a legal grievance can in certain cases take out a writ petition. In this case, a writ was issued on the petition of a local authority against a public utility concern, for the latter's failure to honour its statutory obligation, that is, to supply power to the local authority (consumer).

Case Laws

Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly

In this case12) it was held that the appellant Company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance.

Board of Control for Cricket in India v. Cricket Association of Bihar

In this case13) the Supreme court held that, BCCI is amenable to the writ jurisdiction of Article 226 of the Constitution of India, 1950, even though admittedly, it is not a State within the meaning of Article 12 of the Constitution of India, 1950, for BCCI is neither created by a statute, nor any part of its share capital is held by the Government; no financial assistance is given to the BCCI by the Government; and it is not created by transfer of a government.owned corporation.

The rationale behind arriving at this decision, that is, BCCI is amenable to the writ jurisdiction albeit Article 226 of the Constitution of India, 1950, was the fact that, BCCI's control over the sport of cricket in India is deep and pervasive and BCCI enjoys a monopoly status so far as the game of cricket in India is concerned. BCCI formulates rules, regulations, norms and standards covering all aspects of the game of cricket in India. It enjoys the power of choosing (or selecting) not only the members of the national cricket team, but also the umpires and the coaches. It vests itself with the power of disqualifying players which may at times put an end to the sporting career of a cricketer. It spends huge sums of money in building, developing and maintaining infrastructures like stadia, cricket academies and State sports associations. It frames and regulates pension schemes and incurs expenditure on coaches, trainers and physicians to look after and cater to the cricket players. It sells broadcasting and telecasting rights and collects admission fees qua the venues where the cricket matches are played.

All these activities fructify owing to the tacit concurrence of the State Government and the Government of India, which are not just fully aware but are also fully supportive of the BCCI‟s activities. In such a situation owing to the doctrine of fairness and good faith, BCCI has a huge responsibility at its peril to discharge, that is, to look after the sport of cricket in India. The nature of this responsibility is of a great public importance and value.

Thus, although BCCI is a private body formed under the Tamil Nadu Registration of Societies Act, 1975, it is subject to the writ jurisdiction of the Constitution of India, 1950 vide Article 226, with little regards to the fact that it is not financially, functionally or administratively dominated by the Government.

Ajay Hasia v. Khalid Mujib & Others

In this case14) it has been held that the societies registered under the Societies Registration Act, 1898 is an agency or instrumentality of the State and therefore it is covered under the definition of State under Article 12. The Court also observed that the test to know whether a juristic person such as registered societies is State is not how it has been brought but why it has been brought. (i.e. the purpose behind creation of such society or trust)

1)
1986 AIR 1571
2)
AIR 1961 Mad 234
3)
1977 108 ITR 922 Cal
4)
AIR 1968 SC 1232
5)
1963 1 SCR 778
6)
ILR 1999 KAR 1715
7)
1979 AIR 1628
8) , 10)
AIR 1967 SC 1
9)
AIR 1988 SC 1531
11)
AIR 1995 P H 101
12)
1986 3 SCC 156
13)
2015 3 SCC 251
14)
AIR 1981 SC 487

Created on 2021/01/20 20:16 by LawPage • Last modified on 2021/01/20 20:16 by LawPage