'State' as defined by Article 12

State:

Article-12 defines the term “State” as used in the different articles of the Part-3 of the constitution.

The term “State” includes:

The Government and the Parliament of India i.e., Executive and Legislature of the Union.

The Government and the Legislature of each State i.e., Executive and Legislatures of the states.

All the local or other authorities within the territory of India.

All the local or other authorities under the control of the Government of India.

The term “State” thus includes the Executive as well as the legislative organs of the union and states.

It is therefore, the actions of these bodies can be challenged before the courts, if the fundamental rights is been violated.

States also includes:

1. Authorities
2. Local Authorities
3. Other Authorities
4. Restricted Interpretation
5. Broad and liberal Interpretation
6. Authorities under the control of the Government.  

Authorities:

Authority means the power to make laws, orders, regulations, bye-laws etc, which have the power to enforce these laws.

Local Authorities:

Local Authorirites refer to the authorities like municipalities, District Boards, Panchayats, Improvement Trust and the mining settlement boards.

In Mohammed Yasin

V

Town Area Commiittee

The Supreme Court held that the bye-laws of a minucipal committee charging a prescribed fees on the wholesale dealer was as order by the state authority.

Other Authorities:

Restricted Interpretation:

In Article-12, the expression “other Authorities” is used after mentioning a few of them, such as Government, Parliament of India etc.

In University of Madras

V

    Santa Bai

Articile-12 of the expression of “Other Authorities” is used after mentioning few government or sovereign functions.

It does not includes persons, natural or juristic such as Univeristy unless it is “Maintained by the State”

In Electricity Board, Rajasthan

V

    Mohanlal

The Supreme Court held the expression “Other Authorities” includes all the authorities created by the constitution.

On this Interpretation, the expression “Other Authorities” will include the Rajasthan Electricity Board, Cochin Devasam Board, Co-operative Society, which have the power to make the bye-law under Co-Operative Societies Act 1911.

Broad and liberal Interpretation:

In the subsequest decisions of the Supreme court has given a broad and liberal interpretation to the expression “Other Authorities” in Article-12.

 With the changing role of the state from being a police state to Welfare state, it is necessary to widen the scope of the expression “Authorities” in Article-12, so that it includes all those bodies which were through not created by the constitution but were acting as a agencies or instrumentalities of the government.

In R.D. Shetty

V

International Airport Authority of India 

In this case the court held that, if a body is an agency or a instrumentality of the government, it may be an “Authority” within the meaning of Article-12.

Accordingly, the International Airport Authority created by an Act of Parliament is the “State” within the meaning of Article-12.

(Airport is Private Co but people are from government)

Test to determine whether a body is an agency or instrumentality of the state:

The Court laid down the following test for determining whether a body is an agency or an instrumentality of the government:

Financial resources of the state is the chief funding source i.e., the entire share capital corporation is held by the government.

Existence of deep and pervasive state control.

Functional character of governmental is an essence i.e., the functions of the corporation are of public importance and is closely related to the governmental functions.

A department of the Government is transferred to a corporation.

Whether the corporation, enjoys monopoly status, which is the state protected.

In Som Prakash

V

Union of India

The Court held that a government company (Bharat Petroleum Corporation) fell within the meaning of the expression “The State” used in Article-12.

The expression “Other Authorities” would include all the bodies created for the purpose of promoting economic activities.

The expression “other Authorities” was not only to statutory corporations alone but would include a government company, a registered society or the bodies which had some nexus with the government.

 

In U.P.Warehousing Corporation

V

Vijai Narain

It was held that the U.P.Warehousing Corporation was owned and controlled by the Government, is an agency or instrumentality of the government and therefore “the State” is within the meaning of Article-12.

In Ajay Hasia

V

Khalid Mujib

It has been held that a society registered under the Societies Registration Act 1898, is an agency or “Instrumentality of the State” and hence a “state” is within the meaning of Article-12.

Authorities under the Control of the Government of India:

There are 2 types:

1. Unaided Minority School
2. Private University

Unaided Minority School:

Government has no administrative control over unaided minority school due to their authority under Article-30(1) of the constitution are not a “State” within the meaning of Article-12 of the Constitution.

The right of equality which is available against the state cannot be claimed against unaided minority schools.

Private University:

SRM University, Madras, declared as “Deemed university” by the central government under section-3 of the UGC Ac.

The management which was a private trust was held to be an authority provided under Article-12 of the constitution, whose all the functions and activities were governed by the UGC Act like other Universities, it was a “Other Authority” within the meaning of Article-12 of the constitution.

Example:

Board of Cricket for Control in India:

The board was not created by the statute nor was a part of the share capital held by the government, there the board is not discharging “State” functions.

Is Judiciary included in the word “State” :

In AR Antulay

V

RS Nayak

It has been held that the court cannot pass an order which would violate the fundamental rights of the citizens.