Concept of State under Article 12 of Indian Constitution
Fundamental Rights are a group of rights which are guaranteed to all the citizens of the nation by the constitution of India under part III. It is universally applied to all citizens, irrespective of their race, sex, religion, caste or gender. Most of the fundamental rights provided to the state and not against the private bodies.
Fundamental Rights which has been discussed in part III of Indian constitution, starts with article 12. Article 12 of the India constitution states “Definition in the part, context otherwise requires, the state includes the government & 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”.
The definition which is provided under article 12, it is applicable only to part III & IV of constitution and not for the rest of constitution. So what article 12 defines is that following of authorities will only be called as state:
- Government and Parliament of India
- Government and Legislature of India
- Local Authority
- Other Authority
It is very obvious that government & parliament of India and Government & Legislature of state has to be included under state. But the local authority and other authority seems to be quite ambiguous.
Local authority which is defined under section 3(31) of the general clauses act which states that “local authority shall mean a municipal committee, district board, body of port commissioners or other authority legally entitles to, or entrusted by the government with, the control or management of the municipal or local fund” In simple words, it refers municipalities, panchayat, district boards, or such kind of local bodies, which means to local self – authorities are called as ‘local authority’.
The dynamic nature of the state was kept in mind while interpreting and defining its scope. Now, the question arises whether electricity board, universities, judiciary etc. can be concluded under ambit of state?
- In case of University of Madras v. Santa Bai ( AIR 1954 Mad.67) the question was asked that university of Madras which was formulated under Madras University Act, can be considered as ‘state’ or not?
- The judges, said that the term ‘authority’ which is being used under article 12 should be ejusdem generis with government legislature. (ejusdem generis means of same kind, or of same nature)
- Judges concluded that under article 12, the very three bodies to come forward are- 1. Government in Parliament 2. Government in Legislature 3. Local Authority
- All of these three are of government authority as well as of sovereign nature. Therefore, the things which are included under other authority, shall also need to be of sovereign nature. In other words, ‘other authority’ should derive its color from the preceding three authorities under article 12. Therefore, universities will not be called as ‘state’, because they are neither of governmental nor of sovereign nature.
- According to this case to qualify as ‘other authority’ sovereign function was inherent quality. If an authority does not exercise sovereign function, then it will be not considered as ‘other authority’ or ‘state’.
- But the approach of ejusdem generis cancelled in case of Ujjambai v. State of Uttar Pradesh (AIR 1962 SC 1621) Supreme Court said that the approach of ejusdem generis is very much restrictive. Therefore the three categories of article 12, they don’t have any common thread, neither any genus. So, the concept of ejusdem generis was cancelled.
- Further, in case of Rajasthan Electricity Board v. Mohanlal (AIR 1967 SC 1857) Supreme Court thought of creating new criteria ;
- They said, if any kind of body is created under law or under constitution of India, it will be obvious that the body which has formed will have various powers for affecting fundamental rights. And if body possess such amount of power it is necessary that it should be qualified as other authority. They also said, it is not at all compulsory that the body should perform governmental as well as sovereign function, this kind of nature is not inherent.
- In other words, the bodies may have any other kind of nature, immaterial of whether they are not performing sovereign or governmental function.
- According to this decision, universities will also be included under the ambit of ‘state’.
Then again question arise, bodies which were formed under statute but mainly for commercial purpose, will be they also included under ambit of state? The answer was given in the case-
- Sukhdev v. Bhagatram (AIR 1975 SC 1331) In this case the court said, the statutory body such as ONGC, LIC, IFC which were set up under certain statute are under ‘other authority’.
- In case of D. Shetty v. International Airport Authority of India (AIR 1979 SC 1628) international airport authority invited many tenders, R.D. Shetty was one of the member for application of tender. But on grounds of some discriminatory reasons, his tender was not accepted. Therefore, he filed a suit for infringement of his fundamental rights.
- Then the question arise, that whether airport authority is ‘state’? And if not ‘state’ there cannot be any kind of infringement of fundamental rights.
- The court observed that the international airport authority is being formulated under Airport Authority Act (AAA) 1975, which is a parliamentary act. Further, it was observed that central government has many powers that they were exercising over AAA (body).
- The central government authority were required for the establishment of international airport authority was invested with central government, the central government was also empowered to transfer the management of various airports.
- So, keeping all this points, Supreme Court concluded that airport authority will be considered as state under other authorities of article 12.
- Thereafter, functional aspects of airport authority was avoided, and no weightage was given to it. Though it may be private body, but if has any usual degree of control over management or has any extra ordinary financial assistance for that body, then it will be considered as instrument of state or agency. Therefore, that body will also be included under ambit of state as ‘other authority’.
- Following other judgment in Som Prakash v. Union of India (AIR 1981 SC 212) it was held that Bharat Petroleum which was incorporated under companies act is also instrumentality of state. Therefore, even this will be state under other authority. It gave 5 criteria to determine, whether an authority or body is a state or not-
- Financial resources of state being the chief funding source.
- Functional character being governmental in essence.
- Plenary control residing in government.
- Prior history of the same activity being carried by the government and made over to the new body
- Some element of authority or command.
- In case of Ajay Hasia v. Khalid Mujib (AIR 1980 SC 480) Supreme Court said that, determining the case is not that the body was formulated under statute. Determining test basically deals whether body is acting as instrumentality or agency of state. If yes, then it will be considered as ‘other authority’ under state.
Finally 6 criteria was given for determining test, which helps to decide whether the body will be state or not-
- Entire share capital is held by the government
- Financial assistance
- Monopoly status
- Deep & pervasive state control
- A department of the government is transferred to co-operation.
Therefore, term ‘state’ thus include executive as well as legislative organs of the Union and States. It is the actions of the bodies that can be challenged before the courts as violating fundamental rights.
Author: Nishchal Kukade,
DR. Babasaheb Ambedkar College of Law Final Year student