DEFINITION OF STATE -OTHER AUTHORITIES :

 Bottom of Form‘State’ under Article 12 of the Constitution of India

INTRODUCTION :

Fundamental rights are said to be  a group of rights that are provided  to all the citizens  by the  Indian Constitution under Part III.  Applicability of these rights is universal in nature regardless  of their race, birth place , religion, caste, or gender. They are considered as rights  that have high level of   protection from the government and even violation of them by Government is not permissible. Though Fundamental rights possess the characteristics of enforceability however they cannot be enforceable against individuals and private entities. State or its authorities have  the obligation of protection of these rights.

Fundamental Rights as mentioned in the Constitution are mostly claimed against the State and its instrumentalities and not against the private bodies. Article 12 of Constitution provides  an extended significance to the term ‘state’. Thereby it is important  to determine what bodies fall under the definition of a state to determine on whom the responsibility has to be placed.

The  Constitution framers  used the words ‘the State’ in a wider sense rather than limiting its meaning in ordinary or narrow sense . It does not merely mean the states in the Union. The word ‘includes’ in the article shows that the definition is not exhaustive and through judicial interpretations, the court has widened the scope of the Article way beyond what even the framers of Article 12 may have had in mind during the framing of the constitution.

Article 12 : State means

Article 12 of the Indian Constitution states that,

“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.”

In other words, for Part III of the constitution, the state comprises the following:

  1. Government and Parliament of India i.e. the Executive and Legislature of the Union
  2. Government and Legislature of each State i.e. the Executive and Legislature of the various States of India
  3. All local or other authorities within the territory of India
  4. All local and other authorities who are under the control of the Government of India

Key  notes :

  1. Government (Union and state)
  2. Parliament and state legislature
  3. Local authorities
  4. Other authorities
  5. Territory of India
  6. Control of the government of India

The above-mentioned are explained below along with relevant judicial rulings or pronouncements.

Government (Union and state), Parliament, and State Legislature : Explanation

  • Parliament: The parliament comprises the President of India, the lower house of the parliament that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya Sabha.
  • Executive: It is that organ that have to implement  the laws passed by the legislature and the policies of the government.  Welfare state  rise has tremendously increased the functions of the state, and in reality, of the executive.

A big increase in the power and role of the executive in every state. The executive  comprise the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.

  • Legislature: The legislature is the organ of the government which  have been assigned with responsibility to enacts the laws of the government. It is the agency that has the responsibility to formulate the will of the state and vest it with legal authority and force..
  • Government: It comprises of  the law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch.Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal, and family courts at the district level form the Judiciary.
  • State Legislature:  At state level also there is  legislative body which is known as  the State Legislature. It includes  the state legislative assembly and the state legislative council.

Local Authorities : Meaning

 According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. Under Article 12 of the Constitution, the word authority means the power to make laws (or orders, regulations, by-laws, notifications, etc.) that have the force of law. It also comprises  the power to enforce those laws

Local Authority:  Section 3(31) of the General Clauses Act, 1897,  also provides about  local authority which is as under :

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.”

 Local authority  “ Includes “:

  1. Local government: According to Entry 5 of the List II of VII Schedule ‘local government’ includes a municipal corporation, improvement trust, district boards, mining settlement authorities, and other local authorities for local self-government or village administration.
  2. Village Panchayat: In the case of Ajit Singh v. the State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included.

Local Authorities : How to determine

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be characterized as a ‘local authority the authority concerned must;

  1. Have a separate legal existence as a corporate body
  2. Not be a mere government agency but must be legally an independent entity
  3. Function in a defined area
  4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
  5. Enjoy a certain degree of autonomy ( : complete or partial)
  6. Be entrusted by statute with such governmental functions and duties as are usually entrusted to locally (like health, education, water, town planning, markets, transportation, etc.)
  7. Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges, or fees

Other Authorities

 Under Article 12 of Indian Constitution the term ‘other authorities’ in  has nowhere been defined. Neither in the Constitution nor the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation is based on judicial opinion and which has undergone many changes during time period.

The functions of a government can be performed either by the governmental departments and officials or through autonomous bodies which exist outside the departmental structure. Such autonomous bodies also comprises   companies, corporations, etc.

 In order  , to determine what ‘other authorities’ would fall or consider under the scope of the State,  several judgments  has been provided by judiciary taking into consideration the facts and  and circumstances of relevant  cases.

In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generic 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.

In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope and held that the ‘ejusdem generic rule could not resort to in interpreting ‘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.

Lastly, in Rajasthan Electricity Board v. Mohan Lal, 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 commercial or not.

Territory of India

Article 1(3) of the Indian Constitution provides  that;

“The territory of India shall comprise- (a) the territories of the States;(b) the Union territories specified in the First Schedule, and (c) such other territories as may be acquired.”

In the case of Masthan Sahib v. Chief Commissionerthe court held that the territory of India for Article 12  means the territory of India as defined in Article 1(3).

Control of the government of India

Under Article 12, it is not be meant that  the control of the Government does not necessarily mean that the body must be under the absolute direction of the government. It only  means that the government must have some form of control over the functioning of the body. Mere reason that  a body is a statutory body, does not mean that it is a ‘State’. Both statutory, as well as non-statutory bodies, can be considered a ‘State’ if they are provided funds  from the government and the government have powers to  exercises a  deep pervasive control over them.

For example- State includes Delhi Transport Corporation, ONGC, and Electricity Boards, but does not include NCERT as neither is it substantially financed by the government nor is the government’s control pervasive.

Whether State includes Judiciary or not ?

Article 12 of the Constitution does not provide specifically for the term  ‘judiciary’. So this provided  the judicial authorities the power to pronounce decisions that may be contravening the  Individual Fundamental Rights . If it was taken into the head of ‘State’, then as per the article, it would be  the obligation that the  citizen fundamental  should not be violated.  Henceforth  , the judgments pronounced by the courts cannot be challenged on account of reason that are of nature which violates the individual fundamental rights . On the contrary , it has been observed that orders passed by the courts in their administrative capacity (including by the Supreme Court) have regularly been challenged as being violative of fundamental rights.

The answer to this controversy can be solved through the functional structure of courts. When the performance of functions by  courts in non judicial capacity then they would fall under the scope of the “State” and when performance of functions in judicial capacity , then they would outside the purview of scope of the  term “State” perform their non-judicial functions, they fall within the definition of the ‘State’.

So, it is of noteworthy that the judicial decision of a court cannot be challenged as being violative of fundamental rights. But, an administrative decision or a rule made by the judiciary can be challenged as being violative of fundamental rights,  if there is support of facts in this regard . This is reason that bifurcation of non judicial and judicial functions of the court is required.

Conclusion :

The  Indian Constitution  not only provides  fundamental right to the citizens but it also says about imposition of  the duty on the state to ensure that the fundamental rights are protected.  Through interpretations courts have widened the scope of the term “State” as to include various statutory and non statutory bodies under its umbrella.

The  reason for determination of what would be under the purview of state is to assign the responsibility to the party upon whom to implement  such right is placed.  Also , the definition of state under Article 12 has several words which have not provided in the Constitution and  may not have definite meanings, words such as local authorities, control of the government, other authorities, etc. and as seen in the above sections, the courts have, through the course of their judgments,  described the extent of the article by laying down a test and discussing the meaning of the terms.

REFERNCES :

Constitution of India

blog.ipleaders.in/state-article-12-constitution-india/

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Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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