This article deals with the Concept of State under Article 12 of the Indian Constitution and bodies which would be considered to be a State within the meaning of Article 12 of the Constitution.
Introduction
As we all know that Part III of the Indian Constitution guarantees fundamental rights to all its citizens. It is the established fact that these fundamental rights can only be claimed against the State and the authorities of state but not against any private body or individual. Thereby, the question of what constitutes the State is important.
Article 12 of the Indian Constitution describes the state 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.”
Therefore, unless specified, the State includes.
- Government
- Parliament of India
- The Legislature of each state
- Other authorities
Government and Parliament of India
This means the Executive and Legislature of the country. They come under the scope of ‘state’ as whenever there is a bill passed in the Parliament, which after the Parliament gives its assent, becomes an act. And if that law by any chance infringes the right of the citizen(s) he can file for the infringement of his fundamental rights.
Government and Legislature of State
This means if there is an infringement of the right(s) of any individual due to any law or act passed by the state. Then the same is safeguarded under Fundamental Rights.
Dr. B.R. Ambedkar, in the constituent assembly, said “I shall presently explain what the word ‘authority’ means- upon every authority which has got either the power to make laws or the power to have discretion vested in it”
Local Authorities
The expression “local authority” under Article 12 can be referred to a unit of local self-government[1]:
- Municipality
- Village Panchayat
- Gram Sabha, etc.
In the instant case, reference made to the definition of local authority according to section 3(31) of the General Clauses Act, which defines the “local authorities” as a municipality, district board, a body of port chiefs or other legal authorities which are legitimately entitled to, or endowed by the government with all the control of such attributed bodies.
All these authorities are made through a statute. Hence any by-laws or any rule and regulations made by these bodies come under the ambit of Fundamental Rights.
OTHER AUTHORITIES
The interpretation of “other authorities” in Article 12 has caused a good amount of difficulty with constant changes which has undergone judicial opinions. Today’s government perform major functions because of the developed philosophy of social welfare. It sometimes acts through a natural person and the other times as a juridical person.
So, wider the meaning of the term, more the coverage can be brought to the attributed term which gradually led to disputes. As there has been no clear explanation of the phrase in the Constitution and therefore its interpretation is entirely left on the Court to decide.
Question: Whether the University is a State?
The Madras High court held in the case of the University of Madras v. Santa Bai[2] that “other authority” is those authorities which could indicate a similar of its kind or of like nature. It also relied on the legal maxim ejusdem generis which means of the same kind. Authorities performing sovereign or governmental functions were to be brought under the ambit of the State along with deep and pervasive control of the state.
But this maxim which was exercised by Madras High Court was rejected in the case of Ujjambai v. the State of U.P. (1962 AIR 1621) and held that there exists no common genus or connection among the authorities under Article 12.
In the landmark judgement of Ajay Hasia v. Khalid Mujeeb (AIR 1981 SC 487) where for the first time, the guidelines of what should be considered as a ‘state’ were laid down and Supreme court laid down certain criteria to adjudge the body if it is an instrumentality of State under Article 12.
“Following the test was laid down by Supreme Court to adjudge whether a body is an instrumentality of the state/government or not:
- One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way toward indicating the assistance of the state is so much as to meet the almost entire expenditure of the corporation is an instrumentality or agency of Government.
- Where the financial assistance of the State is so much as to meet the almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
- It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.
- Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
- If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying as an instrumentality or agency of Government.
- 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.”
In particular, if any department which falls under the government is moved to a corporation or enterprise, this can lead to a strong inference of the organization being an agency or instrumentality of the state/government. Neither the structure of the body nor the function of the body in question matters is it a statutory or non-statutory body.
It is also important to note that even if anyone or other according to the test of instrumentality laid down in the case of Ajay Hasia is attracted then that alone would not be sufficient to assume that the body carrying functions of public nature falls under the definition of the state/government.[3]
The question for each situation should be considered based on certainties accessible with respect to whether in the light of the established scenarios which are faced in the form of cumulative facts, the body in question is exercising its duties under the control of the government be it a financial control, functional control or have any kind of administrative domination of the government. Mere regulatory control whether under statute or otherwise would not be enough to serve to make a body a part of the State.
Question: Whether BCCI is a State?
When a private body in the absence of any authorization or delegation chooses to discharge such functions those amount to state functions or public duties which have no legal prohibition per se may be considered to fall under the instrumentality of the State.[4] The BCCI performs a public function, which cannot be termed under the ambit of State mentioned in Article 12.
The law emerged gradually with constant efforts of the courts and now it appears to be finally settled in the view of judgment of a seven Constitution Bench of the Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[5] where it was concluded while referring to certain authorities that the tests given in Ajay Hasia Judgment were not rigid, that if a body passes any principle then it is to be declared as an instrumentality of state.
“The main test according to them was of funding and control. Few answers to certain questions can help to identify if the body falls under the definition of the instrumentality of the state.[6]
- Is the entire share capital or a major part of it held by the government?
- Is the body in question effectively controlled by the government not only in the making of its policy but also in carrying out its functions?
- Does the government foot a substantial part of the bill for running the operations of the concerned body?
- Is the administration of the body in the hands of the government-appointed directors and are they subject to government control in the discharge of their functions?
- Does the state exercise deep and pervasive control over the body in question?
- Whether the operation of the corporation is an important public function closely related to governmental functions?
- Does the body enjoy monopoly status conferred or protected by the state?”
Though, the above test was not entirely exhaustive but illustrative. If it is not easy to determine the body in question through the tests determined in the classic judgments then it entirely depends on the courts to decide whether the body in question falls under State according to Article 12 or not. The courts have adopted the stance to bring as many bodies as possible within the disciple of the Fundamental Rights as wider the concept, wider the coverage.
Question: Whether Judiciary is a State?
No action lies against court or judge on the ground of breach of fundamental rights through a judicial order.
Judiciary is the body which is exercising its power and purporting the judicial decision to decide the controversy between the parties brought before it. But it was held by Supreme Court in the case of Naresh Shirdhar Mirajkar v. State of Maharashtra[7] that at the time of rulemaking power or when a judiciary is exercising any of its administrative power, then the judiciary can be liable as State and one can claim breach of his fundamental right but judiciary is not a state when it is exercising its judicial power. Therefore, in this case, it depends on the nature of function which the body is exercising.
After considering several views and tests recommended by the Supreme Court, it is not possible to make a close-ended category of bodies which would be considered to be a State within the meaning of Article 12 of the Constitution.
[1] Ajit Singh v. the State of Punjab, AIR 1967 SC 856
[2] AIR 1954 Mad 67
[3] Federal Bank Ltd. v. Sagar Thomas, AIR 2003 SC 4325.
[4] Zee Telefilms Ltd v. Union of India, AIR 2005 SC 2677.
[5] (2002) 5 SCC 111.
[6] Jain MP, Indian Constitutional law, (7th ed, 2014) p. 860.
[7] AIR 1967 SC 1.
