Source- thejeshgn.com
The Fundamental rights are enshrined in Part III of the Indian Constitution from Article 12 to 35.
The framers of the constitution derived inspiration from the constitution of the USA (Bill of Rights). Fundamental rights uphold the equality of all individuals, the dignity of the individual, the public interest, and the unity of the nation. Also, prevent the establishment of authoritarian and despotic rule in the country. They protect the liberty and freedom of the people against the invasion by the state. These rights are meant for promoting the idea of political democracy.
Fundamental rights are the primary rights of the citizens which are justifiable and written in the Constitution.
The State has been used in different provisions concerning fundamental rights. Hence, Article12 has defined the term for Part III. Fundamental rights are available against State and not against private individuals
Definition of State – Article 12 defines the state in the following manner:
1] The Government and Parliament of India, i.e., Executive and Legislature of the Union.
2] The Government and Legislature of each of the States, i.e., Executive and Legislature of
the States.
3] Local Authorities (Defined under Section 3(31) of the General Clause Act).
4] Other Authorities within the territory of India or under the control of Government of India
The term ‘State’ thus includes executive as well as the legislative organs of the Union and State. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.
Concerning Article 12, the word “Authority” means those who have the power to create or release the law, by-law, order, notification, etc. as well as the power to enforce it. In Mohammad Yamin v. Town Area Committee AIR 1952, the Supreme Court has considered the municipal corporation under the term ‘State’ used in Article 12
Union of India v. RC Jain[i]
In this case, it was decided that the ‘local authorities’ are those who complete the following test:
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 which are usually entrusted to municipalities.
‘Other Authorities’ refers to the authority other than the local self-government, who has the power to make laws, the power of laws.
The expression used in Article 12 is used after mentioning the executive and legislature of union and states and all local authorities. Thus, it has been held that it could only indicate authorities of alike nature, i.e. Ejusdem Generis.
For 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 law on Other Authorities
The University of Madras v. Shantabai[ii]
A restrictive interpretation was given to this term and the principle of ejusdem generis was applied and this meant that authorities exercising governmental or sovereign function would only be covered under other authorities.
Ujjambai v. State of U.P[iii]
The liberal interpretation came when the apex court rejected the interpretation based on ejusdem generis and held that no restriction can be assigned to the interpretation of the term.
Rajasthan electricity board v. Mohanlal[iv]
In this case the Supreme Court gave wider interpretation and held that ‘Other Authorities’ includes all authorities created by the constitution or the statute on which powers are conferred by law.
It is not necessary that statutory authority should be engaged in governmental or sovereign functions.
Sukhdev v. Bhagat Ram[v]
Three statutory bodies LIC, ONGC, Finance Corporation were held to be authority, and this fall within the state under Article 12. These corporations have independent personalities but at the same time, they are subject to government control.
R.D Shetty v. International Airport Authority[vi]
The International Airport Authority was held to be an authority. The Supreme Court held that an instrumentality or agency of the government would be regarded as an authority or state within Article 12 and led down some test to determine whether a body could be regarded as an instrumentality or not.
Five tests:
Chief funding source by government.
A functional character being governmental.
Pervasive control residing in government.
Prior history of the same activity being carried out by the government and made over to the new body.
Some kind of authority with the body in question.
Somprakash v.Union of India[vii]
The company was held to fall under Article 12. The court emphasizes that the true test for whether a body was an authority or not, was not to be determined by its formation (Statutory or Non Statutory) but how it was functional.
Ajay Hasia v. Khahid Mujib[viii]
This case dealt with whether the society registers under the society's registration act, running the regional engineering college, sponsored and supervised and financially supported by the Government was held to be an authority under Article 12. The Supreme Court led down the test to adjudge or determining the test.
Where the entire share capital is held by the government.
A great degree of financial assistance is by the government.
A monopoly status is protected by the state.
Deep and pervasive state control.
If the function is of public importance or is related to governmental function.
If a governmental department is transferred to that body of operation.
[i] 1981 AIR 951, 1981 SCR (2) 854 [ii] AIR 1954 Mad 67, (1953) IIMLJ 287 [iii] 1963(1) SCR 778 [iv] 1967 AIR 1857, 1967 SCR (3) 377 [v] AIR 1975 SC 1331, 1975 (30) FLR 283 [vi] 1979 AIR 1628 [vii] AIR 1981 SC 212 : (1981) 1 SCC 449 [viii] 1981 AIR 487
Author- YUKTI CHORDIYA
BACL(Main Branch), Nagpur
LEGALEAGLE LAW FORUM