Article 12- State

Introduction

Like many other concepts and ideas of our time, the concept of fundamental rights also developed in the West.[1] Under that concept unlike the other legal rights which are the creation of the State given to individuals against one another, the fundamental rights are claimed against the state. Therefore, whether the constitution says it or not, it is generally assumed that the fundamental rights given in it are available against only the State and its officials. For this reason, the Constitution of the US, first amongst modern written Constitution to provide for the fundamental rights, applied those rights only to State action, even though the Constitution does not say so. The same conception has played a role in the application of the fundamental rights in our Constitution. For that reason and more than that for the reason, that some of the rights are expressly guaranteed against the State, a definition of State was necessary. The definition of state has been provided in the Constitution of India.[2]

Meaning of “State” in Article 12

 Article 12 Definition-

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.[3]

The definition of “State” given under Article 12 of the Indian Constitution of India is inclusive and not an exclusive definition. Therefore, authorities and instrumentalities not specified in it may also fall within it if they otherwise satisfy the characteristics of “the State” as defined in this article.[4] The authorities and instrumentalities specified in Article 12 are:

(1) the Government and Parliament of India;

(2) the government and legislatures of each of the state;

(3) all local authorities; and

(4) other authorities within the territory of India and under the control of the Government of India.

It has not been defined anywhere in the Constitution of India or any other statute for that matter that purports to “other authorities” in the Article 12 of the Constitution of India. Thus one has to completely rely on various judicial pronouncements to ascertain the hidden meaning and characteristics of the organizations which may be included in Article 12 of the Indian Constitution as “other authorities”.

Judicial View of “other authorities” in Article 12 of the Indian Constitution

Principle of “ejusdem generis” and Article 12

 In the case of University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. 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, for example, unaided universities.[5] 

In the case of Ujjammabai v. The State of U.P., AIR 1962 SC 1621 the court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to while interpreting ‘other authorities’. In Article 12 bodies specifically named are the Government of the Union and the States, Legislature of Union and the 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.[6]

Only the corporations which are created by the Constitution or by a statute could be “State”?

In Rajasthan Electricity case[7]The Supreme Court held that “other authorities” would include all authorities created by the Constitution or statute on whom powers are conferred by law. It was not necessary that the statutory authority should be engaged in performing governmental or sovereign functions. This decision in effect overruled earlier decisions excluding the universities from definition of “the State” within the meaning of Article 12.[8] Accordingly, the universities have been later held to be the “State”.

Later in Sukhdev Singh case[9], the Supreme Court had to deal with the question of whether statutory corporations such as the ONGC, IFC, LIC created respectively by the Oil and Natural Gas Commission Act, 1956, the Industrial Finance Act, 1948 and the Life Insurance Act, 1956, came within the definition of “the State”. By a majority of 4:1, the Apex Court held that the three corporations were State. Following the Rajasthan Electricity case, majority led by Ray CJ held that the three corporations were created by the statutes, and had the statutory power to make binding rules and regulations, and are subject to pervasive governmental control. They were, therefore, “other authorities” within the meaning of Article 12.

The effect of these decisions was that the ‘authorities’ not created by the Constitution or by a statute could not be ‘State’ under the definition under Article 12 of Constitution of India. This is a very restrictive interpretation of the expression “other authorities” under Article 12 of the Constitution of India. But in subsequent cases before the Supreme Court has given a broad and liberal interpretation of the term “other authorities” in Article 12.

With the changing role of the State to a welfare State it was necessary to widen the scope of the expression “other authorities” in Article 12 so as to include all those bodies or instrumentalities of government. The Court has, therefore, rightly taken the view that such juridical persons acting as the instrumentality or agency of the government must be subject to the same restrictions as the state.

In Airport Authority’s case[10], Bhagwati, J., preferred, and rightly, the broader test as suggested by Mathew, J., in Sukhdev v. Bhagatram case. In this case the Court held that if a body is an agency or instrumentality of government it may be ‘authority’ within the meaning of Article 12 of the Constitution of India whether it is a statutory corporation, a government company or even a registered society.

This line of approach was finally confirmed in Som Prakash Rekhi v. Union of India[11]. Applying the criteria laid down in the International Airport Authority case, in Som Prakash the Court reached the conclusion that there was enough material to hold that the Bharat Petroleum Corporation registered as a government company under the Companies Act, 1956 was “the State” within the meaning of Article 12. Consequent upon the takeover of Burmah Shell under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, the right, title and interest of the company stood transferred and vested in the Government of India. Thereafter, the Central Government acting under section 7 of the Act took necessary steps for vesting the undertaking in the Bharat Petroleum Corporation Ltd. which became the statutory successor of the petitioner’s employer. Krishna Iyer J. observed that various provisions of the Act of 1976 that transformed the corporation into an instrumentality of the Central Government with a strong statutory flavor super-added were clear indicia of power to make it an “authority”. Although registered as a company under the Companies Act, 1956, Bharat Petroleum Corporation was clearly a creature of the statute, a limb of government, an agency of the state and was recognized and clothed with rights and duties by the statute. The expression “other authorities” is not confined only to statutory corporations alone but may include Government company, a registered society, or bodies which have nexus with the government.

Bhagwati J., speaking for unanimous five-judge bench in Ajay Hasia’s case[12]reiterated that the test for determining whether a corporation falls within the definition of State in Article 12 was whether it was an instrumentality or agency of the Government. The enquiry must not be how the juristic person was born but why was it brought into existence. It was, therefore, immaterial whether the corporation was created by a statute or under a statute. The concept of instrumentality or agency of the government was not limited to a corporation created by a statute, but was equally applicable to a company or society considering the relevant factors as explained in the International Airport Authority case[13].

Tests for finding which organization comes under the definition of “other authorities:

The relevant tests gathered from the decision in the International Airport Authority’s case[14] were summarized by Bhagwati J., in Ajay Hasia’s case[15] as follows:

  1. One thing is clear that if the entire share capital of the corporation is held by the Government it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government.
  2. Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.
  3. It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.
  4. Existence of deep and pervasive State control may afford an indication that the Corporation is a state agency or instrumentality.
  5. If the functions of        the corporation of public importance and closely related to governmental functions, it would be a relevant factor  in classifying the corporation an instrumentality or agency of Government.
  6. 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.

Whether private individuals are included in definition of “State” under Article 12 of the Constitution

The courts have to resort to horizontal application of fundamental rights. Horizontal application of fundamental rights refers to the notion in which along with “the State” the fundamental rights can also be enforced against private individuals.

Indian legal system has consistently shown reluctance towards the application of direct horizontal application. The Supreme Court of India has always stood on the opinion that fundamental rights given under Indian constitution in case of violation can only be enforced against the public authorities and not private individuals. The reason behind reluctance can be traced from the Constitutional assembly intention to mean only state as an addressee not any private individual. But there are some instances of horizontal application of fundamental rights in our Constitution. The Article which prohibit discrimination i.e. Article 15(2) enshrined in the Part III of the constitution have horizontal application that obliged all public and private entities to abstain from doing discrimination on ground of sex, caste, race or place of birth. Another Article of pivotal importance in the Part III of the Constitution i.e. Article 21. It ensures the individual’s right to live and possess personal liberty and it applies both to state and private individuals.

Whether Judiciary is included in the ambit of Article 12 of the Constitution of India

Judiciary through an organ of the State like the executive and legislature, is not specifically mentioned in Article 12. But it does not mean that Judiciary is altogether excluded from the scope of Article 12. Whether Judiciary would come under the ambit of Article 12 will depend upon the type of function it is performing.

In the exercise of non-judicial functions such as administrative or legislative, the court falls within the definition of “the State”. It has been held that when a court exercises its legislative powers under Article 145 of the Constitution and makes a rule which contravene the fundamental rights of citizens, the rule would be held ultra vires, and appropriate remedy under Article 32 or Article 226 could be sought and obtained.[16] Likewise, the Chief Justice of India or of a High Court in exercising the powers of appointment of officers of the respective courts shall be amenable to the writ jurisdiction, if appointments are made in violation of the equality clause of the Constitution.[17] But in Naresh v. State of Maharashtra[18], it was held that even if a court is the State in exercise of its non-judicial functions a writ under Article 32 cannot be issued to the High Court of competent jurisdiction against its judicial orders, because no violation of fundamental rights can be attributed to such orders.  

The exercise of judicial functions will, however, not occasion the infringement of the fundamental rights and, therefore, the question of bringing the courts under the purview of “the State” under Article 12 of the Constitution. To be more explicit and specific, in the exercise of judicial function, courts are required to determine the scope of the fundamental rights vis-à-vis a legislative or executive action or action of any other person or body. Unless their power to perform that function is excluded or restricted by the Constitution or any other law, courts are competent to make right or wrong determination in exercise of that function. A wrong determination in such a case does not constitute a breach of any fundamental right by the court. It is a genuine mistake which a court is competent to, though it must not, make. The remedy against such a mistake is not to allege a violation of fundamental rights and approach the courts under Articles 32 or 226, but to allege that determination of courts is consistent with the fundamental rights and approach the court with such allegation in appeal or review.

Conclusion

Now in contemporary times the rules and principles related to the question of whether the organization comes under the ambit of Article 12 as “other authorities” are well established. Two tests have been laid down for the same, i.e. firstly the functions test and secondly the agency or instrumentality test. Court has to apply its mind to see which test has to be applied in each case by looking at the facts of the case.

Another thing which is a matter of concern is the extent of horizontal application of fundamental rights. Clearly, by seeing the current trend of the economy one can observe that it is transforming into a capitalist one with an increasing role of the private sector and thus it is very important that fundamental rights can be enforced not only against “the State” but also against private individuals. Thus private individuals must also be included within the definition “State” under Article 12 of the Constitution of India. 

References

  1. The Constitution of India.
  2. Shukla, V.N, Constitution of India, Eastern Book Company, 2018.
  3. Pandey, J.N, Constitutional Law of India, Central Law Agency, 2018.
  4. All India Reporter
  5. SCC online
  6. Main.sci.govt.in (The Supreme Court of India)

Questions

  1. What does Article 12 of the Constitution of India propounds?
  2. What is the principle of ejusdem generis and is it still applicable in determining “other authorities” under Article 12?
  3. How does Indian judiciary interpret Article 12 of the Constitution of India? Explain with help of case laws?
  4. Explain the test laid down in Ajay Hasia v. Khaled Mujib Sehravardi to identify what all organisations come under the ambit of Article 12?
  5. Is the Judiciary considered as “other authority” under Article 12 of the Constitution of India?

[1] See American Bill of Rights, September 25, 1789.

[2] See the Constitution of India, Article 12.

[3] See the Constitution of India, Article 12.

[4] V.N Shukla, Constitution of India, 26, ( Eastern Book Company)

[5] University of Madras v. Shanta Bai, AIR 1954 Mad 67.

[6] AIR 1962 SC 1621.

[7] Electricity Board Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857: (1967) 3 SCR 377.

[8] University of Madras v. Shanta Bai, AIR 1954 Mad 67, Krishan Gopal Ram Chand Sharma v. Punjab Universities, AIR 1966 Punj 34.

[9] Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, 1 SCC 421: AIR 1975 SC 1331.

[10] Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628.

[11] Som Prakash Rekhi v. Union of India, AIR 1981 SC 212.

[12] Ajay Hasia v. Khaled Mujib Sehravardi, AIR 1981 SC 487.

[13] Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628.

[14] Ajay Hasia v. Khaled Mujib Sehravardi, AIR 1981 SC 487.

[15] Ajay Hasia v. Khaled Mujib Sehravardi, 1 SCC 722, AIR 1981 SC 487.

[16] Prem Chand Garg v. Excise Commr., AIR 1963 SC 996

[17] Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1953 SC 10.

[18] Naresh v. State of Maharashtra, AIR 1967 SC 1.

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