State (Art.12) – Indian Constitutional Law
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State (Art.12) – Indian Constitutional Law

August 27, 2019


Hello friends welcome to “learn Indian
law”. Today we are going to learn about state which deals under Article 12 of
Indian Constitution. The Constitution of India has defined the word state for the
purpose of part III and part IV. Because most of the fundamental rights provided
to the citizens are claimed against the state and its instrumentalities and not
against the private bodies. Article 12 is written in Indian Constitution as “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. The definition of
the term state under Article 12 is inclusive and not exhaustive. To cop up
with the challenges posed by the society article contained two important terms
the first one is the inclusive nature of the definition. It is evident through the
use of the expression “includes” is to accommodate new entities within the
scope of Article 12. Therefore, authorities not specified in the Article
may also fall within it, if they satisfy the characteristics of state or if they
perform any function ordinarily performed by the government. The second
is the use of the expression “unless the context otherwise” that allows the use of
the concept of state in different situation in different manner and
different context. So under inclusive definition state includes, the central
government and the state governments; the Parliament of India and the state
legislature; local authorities and other authorities within the Territory of
India or under the control of the central government. Executing and
legislature of Union and state include Union and state governments along with
the Parliament and state legislatures. The President of India and Governor of
state can also be referred as State as they are part of the execute. The term
government also includes any Department of Government
or any institution under its control. “Local authorities” The
dictionary meaning of authority is a “person or body excising power to command”.
In this context of Article 12 the word Authority means the power to make laws,
orders, regulation, by laws, notifications etc which have the force of law and
power to enforce those laws. Local authorities are under the exclusive
control of the state by virtue of Entry 5 of list II of the 7th schedule. The entry
contains a list of some local authorities. The expression will
therefore include municipal committee, panchayat, port trust, municipality and
so on as State within the meaning of Article 12. In Union of India vs. R.C
Jain to be considered in local authority and authority must fulfill the
following conditions, the authority concerned must have separate legal
existence as a corporate body. It must not be mere government agency but must
be legally an independent entity. It must be a function in a definite area. It must
also enjoy a certain degree of autonomy either complete or partial. It must be
entrusted by statute with such governmental function and duties as are
usually entrusted to municipal bodies such as those connected with providing
amenities to the inhabitants of the locality. Finally such a body must have
the power to raise funds for furtherance of its activities and fulfillment of its
object by levying taxes, rates, charges or fees. In Premji Bhai Panwar v. Delhi
Development Authority, court held that Delhi Development Authority is a
statutory body and it is a local authority. Because it is constitute for
the specific purpose of development of Delhi according to plan which is
ordinarily a municipal function. The activities of the Delhi Development
Authority are limited to Delhi. It has some element of popular
representation and its composition and enjoy a considerable degree of autonomy. In Housing Board of Haryana v. Haryana Housing Board Employees Union
Court held that the housing board is not a local authority and denied to make
applicable payment of bonus to employees of Haryana House Board. The
reason was that it does not enjoy a local fund and the members are not
elected like in other local authorities like panchayat
municipalities and also on the ground that it is not an autonomous body as
there is government control in the functions performed by it. Next is “Other Authority” the term other
authorities in Article 12 has nowhere being defined. Neither in the
Constitution nor in the General Clause Act , 1897 or in any other statutes of
India therefore its interpretation has caused a good deal of difficulty and
judicial opinion has undergone changes over time to give a wider dimension to
fundamental rights the judiciary has interpreted state in different context
of different times. Such principles are principle of Ejusdem Generis,
sovereign test, test of instrumentalities or agency and so on.
Let’s discuss it one by one. First principle is a Ejusdem Generis. The principle is used
in University of Madras v. Santa Bai, observed that other authorities could
be Authority of like nature. ie, Ejusdem Generis. But in Ujjammabai v. State of U.P the court rejected the Ejusdem Generis rule and observed
that this rule could not be restored interpreting this expression. There is no
common genes running through these named bodies nor can these bodies so placed in
one single category on any rational basis. Next is Sovereign test in
Rajasthan State Electricity Board v. Mohan Lal
court held that, those authorities which are invested with sovereign power
for within the definition of state. Such sovereign power includes power to make
rules or regulations and to administer or enforce them to the detriment of
citizens and others. In Sukhdev Singh v. Bhagat Ram Supreme Court
following the test laid down in Rajasthan electricity Board case and held that LIC
ONGC and IFC are “State” are performing very close to governmental or sovereign
function. Next is test of instrumentality or agency. The approach of Sukhdev Singh
case was reiterated in approval in R.D Shetty vs. International Airport
Authority. In this case 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, whether it is statutory corporation a government company or even
a registered Society. Accordingly it was held that the International Airport
Authority which had been created by an Act of Parliament a State within the
meaning of Article 12. The central government had power to appoint any
member of the board the capital needed by it was provided only by the central
government. So the code laid down the following test
for determining whether a body is an agency or instrumentality of the
government. Financial resources of the authority; existence of deep and
persuasive state control; function of governmental essence; Department turned
into a corporation. So these are the test of instrumentality or agency. Then in
Som Prakash v. Union of India court apply the criteria laid down in the
International Airport Authority case. The Supreme Court reached the conclusion
that there is enough material to hold that BPCL
registered as a company under the Companies Act is State within the
enlarge meaning of Article 12. A preliminary objection was raised on
behalf of the corporation that no Writ petition would lie against the second
respondent since, it is neither a government department nor a statutory
corporation but just a company. But court held that although registered as a
company under the Companies Act the BPCL is clearly a creature of the Statute, a
limb of Govt,. an agency of the state and is recognized and clothed with
rights and duties by the statute. In Ajay Hasia v. Khalid Mujib, the
question arose whether the Regional Engineering College, Srinagar
established and managed by a society and registered under the Jammu and Kashmir
Registration of Societies Act was a State within the meaning of Article
12. Court held that this society’s composition is determined by the
representatives of the government. The expenses of society are entirely
provided by the central government. The rulemaking by the Society requires prior
approval of the state and is completely controlled by the government. The
government has the power to appoint and remove the members of the society. Thus
the state and the central government have full control of the working of the
society. In view of these elements the society is an instrumentality of state
or the central government and therefore an authority within the
meaning of Article 12. Some other cases related to Article 12 is Chandra Mohan
Khanna v. NCERT court held that NCERT is not a state. In Steel Authority of
India v. Ambica Mills court held that steel authority is not a state.
Shyamlal Ghosh v. Union of India court held that BCCI is not a state “whether state includes the judiciary” The
definition of state under Article 12 of the Constitution does not explicitly
mention the judiciary. The answer of whether state includes the judiciary is
depend upon the distinction between the judicial and non-judicial functions of
the court. Judiciary in India to be include under the ambit of state arose
in the case of Naresh v. State of Maharashtra. In this case could observe
that while excising the rule making powers of the judiciary
come under Article 145 as covered by the expression State with Article 12, but by
performing its judicial function at not so included. Same decision was
followed in A.R. Autulay v. R.S. Nayak and Rupa Ashok Hura v. Ashok Hura. So a
court may be sued for a violation of the fundamental rights to the extended only
till it’s performing its administrative function.
The point is began its judicial function it does not violate any fundamental
right and cannot be taken as State. So I’m concluding my video. The word
state under Article 12 has been interpreted by the court as per the
change in times. It has gained wider meaning which ensure that part three can
be applied to a larger extent. We hope that it would continue to extend its
width in coming times. Thank you

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