Fundamental rights are a group of rights that are guaranteed to all the citizens of the nation by the constitution of India under Part III. Fundamental Rights apply universally to all citizens, irrespective of their race, xxx, religion, caste, or gender. Definition of State is given in Article 12 Of The Constitution.
Part III of our constitution consists of a long list of fundamental rights, it starts right from Article 12 of the constitution to Article 35 of the constitution. Fundamental rights provided to the citizens can be claimed against the State and its instrumentalities and not against the private bodies.
Definition of State given in Article 12 Of The Constitution:- Hence, it is very important to determine what bodies fall under the definition of a state so as to determine on whom the responsibility has to be placed. The most important characteristic of the definition is that it has been specifically mentioned that the definition is not exhaustive but inclusive in nature.
Components of State in Article 12 Of The Constitution:- The State includes:-
1. The Government and Parliament of India
2. The Government and Legislature of each of the States
3. Local Authorities or
4. Other Authorities.
Within the territory of India or under the control of the Government of India.
1. The Government and Parliament of India include the Lok Sabha, Rajya Sabha, and Central Government
2. The Government and Legislature of each of the States include Vidhan Sabha, Vidhan Parishad, and State Government.
3. The ambit of Local Authorities.
4. Other Authorities have been altered by the Judiciary, creating confusion as to what exactly both mean.
Authority under Article 12 Of The Constitution means the power to make laws (or orders, regulations, bye-laws, notifications, etc.)
As per Section 3(31) of the General Clauses Act, 1897 “Local Authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund.”
Any Local Authority must be of like nature and character as a municipal committee, District Board, or Body of port commissioners, possessing, therefore, but possessing one essential feature namely, that it is legally entitled to or entrusted by the government with the control and management of a local fund.
In Union of India v/s R.C. Jain, to be considered a “local authority”, (mentioned in Article 12 Of The Constitution) an authority must fulfill the following tests-
1) Separate legal existence.
2) Function in a defined area.
3) Has the power to raise funds.
4) Enjoys autonomy.
5) Entrusted by a statute with functions that are usually entrusted to municipalities.
Other Authorities according to Article 12 Of The Constitution
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1987 nor in any other statute of India. So for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several judgments as per the facts and circumstances of different cases.
Case laws related to Article 12 Of The Constitution
The Madras High Court evolved the principle of ‘ejusdem generis‘ i.e. of the like nature. There are certain general principles of interpretation which has been applied by the courts from time to time. And one of them is Construction Ejusdem Generis. Ejusdem Generis is a Latin term which means “of the same kind”. The rule is that where particular words have a common characteristic (i.e. of a class) any general words that follow should be construed as referring generally to that class.
If a kaw refers to automobiles, trucks, tractors, motorcycles, and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic.
The Court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule interprets ‘other authorities. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.
The Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial whether the power conferred on the body is of a commercial nature or not.
In this case, the Court found that bodies like LIC, ONGC, IFC, etc, were created by statutes, had the statutory power to make binding rules and regulations, and was under the pervasive control of the Government.
This was a landmark case that gave us the 5 Point test as proposed by Justice P.N Bhagwati for determining if a body is a state or not. The test to determine whether a body is an agency or instrumentality of the state goes as follows-
1. Financial resources of the State are 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 is Governmental in its essence, meaning thereby that its functions have public importance or are of a governmental character.
4. A department of Government transferred to a corporation.
5. Enjoys monopoly status which is State conferred or protected by it.
Under challenge was the validity of admissions made to the Regional Engineering College, Srinagar for the academic year 1079-80 on grounds of arbitrariness. In this case, the Court held that in order to be an agency or instrumentality of the State the impugned body or corporation need not necessarily be created by an Act or Statute.
The inquiry must not be how the juristic person was born but rather why it was born.
1) if the entire share capital of the corporation is held by the Government
2) where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation
3) existence of deep and pervasive State control
4) if the functions of the public corporation are of public importance and closely related to governmental functions
5) if a department of the Government is transferred to a corporation Applying these tests Regional Engineering College was held to be an instrumentality or agency of the State because of the deep and pervasive Government control over the society.
Is Judiciary included in the word “State” In Article 12 Of The Constitution?
The judiciary is not expressly mentioned in Article 12 and a great amount of dissenting opinions exist on the same matter. Bringing Judiciary entirely under Article 12 causes a great deal of confusion as it comes with an attached inference that the very guardian of our fundamental rights is himself capable of infringing them. In America, it is well-settled that the judiciary is within the scope of the 14th Amendment.
Mr. H.M. Seervai is of opinion that the judiciary should be included in the definition of ‘the State’ and a judge acting as s judge is subject to the writ jurisdiction of the Supreme Court. According to D.D. Basu, the Courts. like any other organ of the State, are limited by the mandatory provisions of the Constitution and they can hardly be allowed to override the fundamental rights under the shield that they have within their jurisdiction, the right to make an erroneous decision.
The question of whether the judiciary was included within the definition of ‘the State’ in Article 12 arose for consideration by the Supreme Court in this case. A 9-judge bench of the Supreme Court held that- A Judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication cannot since what the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more.
BCCI is a State under Article 12 of the Constitution or not?
This was decided in the case of Zee Telefilms v. Union Of India AIR 2005 SC 2677. BCCI is not part of State under Article 12 of the Constitution as it is:- 1. not created by a statute, 2. not dominated by the government either