Concept of State - Article 12

by Sajal Awasthi

Introduction

Part III of the Indian Constitution talks about Fundamental Rights which are mentioned from Article 14 to 32. Fundamental rights are those rights which are essential for intellectual, moral and spiritual development of citizens of India. As these rights are fundamental or essential for existence and all-round development of individuals, they are called ‘Fundamental rights’. Fundamental Rights are negative rights. These rights are guaranteed against the State. Any violation of such rights by the private individual gives the person aggrieved a right to seek remedy under general laws but A person can directly approach the Supreme Court of India for justice if any of these fundamental rights is violated by the State. It becomes important to understand the concept of ‘State’.

State is defined under Article 12 of the Indian Constitution. Article 12 is known as the Gateway to Fundamental Rights.

“Definition in this part, unless the context other 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.”
After bifurcating the above definition it can be said that ‘State’ includes:

• The Government and Parliament of India
• The Government and Legislature of each States
• Local Authorities or
• Other Authorities within the territory of India under the control of Government of India

The Government and Parliament of India: Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States.
The Government and Legislature of each State: State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.
Local Authorities within the territory of India: Authority means power to make rules, bye-laws, regulations, notifications and statutory orders and power to enforce them. It includes Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.

Other Authorities: Authorities other than local authorities working within the territory of India or abroad but under the control of the Government of India.

Constituent Assembly Debate

During the Constituent assembly debate, various concerns were raised regarding the term “the State”. Article 7 of the Draft Constitution, 1948 said, “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. This Article, it was argued, was essential for the enforcement of fundamental rights because it defined the authorities on whom fundamental rights were binding. Members of the Assembly were worried that the Article’s wording was too ambiguous, so they proposed amendments. Some members objected to the expression “other authorities,” which effectively includes almost any government agency or officer under the umbrella of “State.” Others argued that referring to district boards and municipalities as the “State” was insensitive. On November 25, 1948, the Constituent Assembly passed the Article with just one amendment.

Dr B.R. Ambedkar, the Chairman of the Drafting Committee tried to clarify the term ‘other authorities’ by stating that it would refer to those that had ‘the power to make laws or the power to gave discretion vested in it’. He made a valid point by stating that it would not be an easy task to mention each and every authority which is a State. Dr. Ambedkar outlined the scope of this article and the reasons for its placement in Part III of the Draft Constitution while beginning the debate on it. The goal of fundamental rights, he explained, is twofold. To begin with, every citizen must be able to exercise those rights. Second, they must be enforceable by all authorities. As a result, it is clear that if fundamental rights are to be clear, they must be binding not only on the Central Government, the Provincial Governments, and the Governments formed in Indian States, but also on District Local Boards, Municipalities, and also village panchayats and taluk boards, i.e., they must be binding on all levels of government.

In the later years, many judicial precedents were set which elucidated the meaning of Article 12.

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Restrictive Interpretation vs. Liberal Interpretation

At the beginning, in University of Madras v. Santa Bai, the Supreme Court gave a restrictive interpretation to ‘State’ applying the principle of ejusdem generis or things of like nature. It meant that authorities exercising governmental or sovereign function would only be covered under other authorities. But later on it rejected the interpretation on the basis of ejusdem generis and held that no restriction can be assigned to the interpretation of the term. This made the definition to be more liberal.

Governmental and Sovereign functions

In Rajasthan State Electricity Board v. Mohan Lal, it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It should-

1. Be created by the Constitution of India
2. Have power to make laws
3. Performance of functions very close to governmental or sovereign functions

LIC, ONGC and ANDIFC were held to be State as performing very close to governmental or sovereign functions. The Corporations are State when they enjoy

1. Power to make regulations
2. Regulations have force of law
3. Clearance of five tests

The Five point test

In R.D. Shetty v. Airport Authority of India, the 5-point test was given to determine whether a body is an agency or instrumentality of the State. The Supreme Court also said that this test was only illustrative and not conclusive in its nature and is to be approached with great care and caution.

1. Financial resources of the State is the Chief funding source i.e. the entire share capital is held by the government.
2. Deep and pervasive control of the State
3. Functional character being Governmental in its essence
4. A department of Government transferred to corporation.
5. Enjoys Monopoly status which is State conferred or protected by it.

Test to determine whether a juristic person is State or not.

In Ajay Hasia v. Khalid Mujib Sehravardi, the Supreme Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.

Other authorities

This Supreme Court ruled that it is dangerous to exonerate corporations from the need to have constitution conscience, the common sense significance of the expression “other authorities under the control of the Government of India” is plain and there is no reason to make exclusions on sophisticated grounds such as that the legal person must be a statutory corporation, must have power to make laws, must be created by no under a statute and so on.

Overruling of Ajay Hasia Case

In Pradeep K. Viswas v. Indian Institute of Chemical Biology, A seven-judge bench ruled that the Ajay Hasia principles are not a rigid collection of principles, and that if a body falls under any of them, it must be considered a State within the context of Article 12 ex hypothesi. The question in each case would have to be considered on the basis of the evidence available as to whether the body is financially, functionally, or administratively controlled by or under the control of the government in light of the combined facts as defined. This type of regulation must be specific to the body in question and widespread. A body’s regulatory power, whether imposed by statute or otherwise, will not suffice to transform it into a state.

Whether Judiciary is State or not?

Judiciary when acting “Judicially” would not fall under the definition of State but when it performs any administrative or similar functions e.g. conducting examination, it will fall under the definition of “State” and remedy could be sought in that context in case of violation of fundamental rights.

In State of Punjab v. Ajaib Singh, the SC rules that non-judicial functions of court will be covered under Article 12.

In K.S. Ramamurthy Reddiar v. Chief Commissioner Pondicherry, the Supreme court said ‘under the control of government of India’ does not apply to quasi-judicial bodies.

A PIL was filed in 2006 and it demanded judiciary to be included under article 12 but the court rejected it.