THE CONCEPT OF STATE UNDER ARTICLE 12 OF THE INDIAN CONSTITUTION Shefali Tiwari BASICS OF LAW Fri, Dec 27, 2019, at ,03:14 PM Part III of the Constitution is said to contain the Bill of Rights for the people of India. The rights secured are the necessary consequence of the declaration contained in the Preamble to the Constitution. Laying down the propositions in Electricity Board, Rajasthan v. Mohan Lal case, the Supreme Court held that ‘other authorities’ would include all authorities created by the Constitution or statute on which powers are conferred by law. It was not necessary that the statutory authority should be engaged in performing government or sovereign functions. Art. 12 gives an extended significance to the term ‘state’ occurring in art. 13(2) or any other provision concern fundamental rights, has an expansive meaning. In P. D. shamdasani V/s Central Bank of India Supreme court held that Art. 19(1) and Art.31(1) contains the rights which are available against the state not against the private individual. Definition of State – Article 12 Article 12 defines the term ‘state’ it says that-Unless the context otherwise requires the term ‘state’ includes the following – 1) The Government and Parliament of India that is Executive and Legislature of the Union. 2) The Government and Legislature of each states. 3) All local or other authorities within the territory of India. 4) All local and other authorities under the control of the Government of India. So it means the ‘state’ under art. 12 includes executive as well as legislative organ of union and states. It is therefore an action of these bodies that can be challenged before the courts as violating the fundamental rights. a) Authorities – It means a person or body exercising power to command in the context of Art. 12. word ‘authority’ means – the power to make laws. Orders, regulations, bye-laws, notification etc. which to enforce those laws. b) Local Authorities- ‘Local Authority’ means an authority legally entitled to or entrusted by the Government with the control or management of a local fund. Hence Dock Labour Board is a local authority.19 But a “Gram Panchayat” does not come within the ambit of ‘local authority’.Under section 3(31) of General clauses Act. it means authorities like Municipalities, District Board, Panchayats, Improvement Trust and Mining settlement Board. Case Laws Relating To Local Authorities In the case of Calcutta State Transport Corporation v. Commissioner of Income-tax, West Bengal Supreme Court refused to characterize the corporation as a ‘local authority’. The corporation is meant only for the purpose of providing road transport services and has no element of popular representation in its constitution. Its powers and functions bear no relation to the powers and functions of a municipal committee.It is more in the nature of a trading corporation. In Premji Bhai Panwar v. Delhi Development Authority (DDA) the Delhi Development Authority, a statutory body, has been held to be a ‘local authority’ because it is constituted for the specific purpose of development of Delhi according to plan which is ordinarily a municipal function. Mohammad Yasin V/s Town Area Committee The S.C. held that the bye-laws of Muncipal Committee charging a prescribed fee on the wholesale dealer was an order by a State Authority contravened Art. 19(1). These bye-laws in effect and in substance have brought about a total stoppage of the wholesale dealer’s business in the commercial sense. c) Other Authorities- It refers to authorities other than those of local self-Government, who have the power to make rules, regulations, etc., having the force of a law. The expression of “other authorities is so wide in itself that it could have covered all authorities created by constitution or state on whom power are conferred by law. It is not necessary that statutory authority should be engaged in performing governmental or sovereign function. Supreme Court of India came up with more broad and liberal interpretation of “other authorities” so as to include all those bodies or instrumentalities which are though not created by the constitution or by a statute of government. They evolved the Doctrine of Instrumentality. Case Laws Relating To Other Authorities In University of Madras V/s Santa Bai. Madras H.C. held that ‘other authorities’ could not only indicate authorities of like nature that is ejusdem generic. So it could only mean authorities exercising governmental or sovereign functions. It cannot include authorities or person natural or juristic such as university unless it is maintained by the state. But In Ujjammbai V/s State of U.P. Court rejected the restrictive, interpretation of expression ‘other authorities’ given by the Madras H.C. and held that ejusdem generic rule could not be resorted to in interpreting this expression. In Art. 12 the bodies specially named are the Government of Union and States and the Legislature of Union and states and local authorities. There is no common genus running through these named bodies nor can these bodies so placed in one single category on any rational basis. Electricity Board Rajastan V/s Mohan Lal In this case the decision given by Madras High Court in Santa bai’s case was overruled and held university to be a ‘state’ further Patna High Court is in Umesh singh v. V.N. Singh following the decision of Supreme Court held that ‘Patna University’ is a ‘state’. The court in Romana Dayaram Shetti V/s The International Airport Authorities of India The tests were laid down by P.N. Bhagwati, J. for determining whether a body is an agency of instrumentality of government – i) Financial resources of the state is the chief funding source that is if the entire share capital of the corporation is held by the government. ii) Existence of deep and pervasive state control. iii) Functional character being governmental in essence. iv) If a department of government is transferred to a corporation. In SM.IIyar V/s ICAR it has been held that the Indian council of Agricultural research is a state within the meaning of Art. 12 of the constitution. CSIR is state – 19 April 2002, it is an important case. In this supreme court by 7:5 majority overruled its old judgement delivered in 1975 and held that Council of Scientific and Industrial Research (CSIR) is a state within the meaning of Art. 12 of the constitution and therefore its employees can approach the High Courts or the Supreme Court to enforce their fundamental rights of equality. WHO ALL COMES UNDER THE AMBIT OF OTHER AUTHORITIES? There is no common feature running through the various bodies, which have been held to be covered by the expression ‘other authorities’. The expression refers to- Instrumentalities or agencies, of the Government and Government Departments. But every instrumentality of the Government is not necessarily a‘Government Department’. Every type of public authority, exercising statutory powers, whether such powers are governmental or quasi-governmental or non-governmental and whether such authority is under the control of Government or not, and even though it may be engaged in carrying on some activities in the nature of trade or commerce. An authority set up under a statute for the purpose of administering a law enacted by the legislature, including those vested with the duty to make decisions in order to implement them. A private body or a company Society registered under the Societies Registration Act Corporation set up under the State Financial Corporation Act, 1951 A non-statutory body, exercising no statutory powers is not ‘State’: A company Private bodies having no statutory power, not being supported by a State act. WHETHER ‘STATE’ INCLUDES JUDICIARY? In USA it is well-settled that the judiciary is within the prohibition of the 14th Amendment.42 The judiciary, it is said, though not expressly mentioned in Article 12 it should be included within the expression ‘other authorities’ since courts are set up by statute and exercise power conferred by law. Judiciary in India to be included under the ambit of ‘State’ arose in the case of Naresh v. State of Maharashtra which observed that "while exercising the rule making powers the judiciary is covered by the expression state with Art.12 but while performing its judicial functions it is not so included." Thereby a court may be sued for a violation of the fundamental right to the extent only till it is performing its administrative function. The point it began it judicial function it does not violate any fundamental right and cannot be taken as “State”. STATE AS NON-GOVERNMENTAL BODIES The Supreme Court by a majority judgement held that the Board of Control for Cricket in India (BCCI) is not a ‘State’ or ‘authority’. It was held that merely because a non-governmental body exercises some public duty, that by itself would not suffice to make such body a State for the purpose of Article 12. Hon’ble Supreme Court held since the State is today distancing itself from commercial activities and concentrating on governance rather than business, situation prevailing at the time when, was decided is not in existence and there is no need to further expand the scope of “other authorities” WHETHER THE STATE ITSELF CAN CLAIM OR ENFORCE A FUNDAMENTAL RIGHT In State of West Bengal v. Union of India, SINHA, C.J., for the majority, set forth a proposition that under the Indian Constitution fundamental rights may be claimed not only by individuals and corporations but sometimes also by the State. His Lordship was obliged to assert this proposition as a concomitant of his major conclusion that the Union may acquire the property of a State Government by making a law of compulsory acquisition under Article 31 (2) gives rise to a right to compensation in favour of the expropriated owner which should logically belong to the State when property belonging to it is compulsorily acquired by the Union. CONCLUSION The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times. Through various case laws & their judgements given by The Court and also through various different viewpoints of different judges in giving those judgements or different law writers in their books or law scholars or law students is what which has gained wider meaning for the term ‘other authorities’ and there is a need now to finally define this important term in context to Article 12 i.e. “STATE”