INTRODUCTION
In earlier times, kings used to recognize the rights and liberties of their subjects i.e., people in order to provide assurance to people for respecting those rights and liberties. No doubt that the human thinking evolved with time. This evolution provided the observation that some rights are of such importance that no compromise can be made with and there is a need on the part of state for the protection of such rights. Due to this observation, Magna Carta, Bill of Rights and finally Fundamental Rights were consolidated. In 1928, Motilal Nehru observed that Fundamental Rights should be guaranteed in such a manner that these cannot be withdrawn in any case. Hence, Fundamental Rights were incorporated in part-III of the constitution providing for the enforcement of these rights in case of any violation. But these rights cannot be enforced against all if there is violation of such right. It is mentioned in the constitution that enforcement of Fundamental Rights is possible when infringement of the right is caused only by any act of the state. Hence, it raises the questions- What is State? Against whom the action can be taken of fundamental rights? These questions draw the attention on the Article 12 of the Indian constitution that provides us the ambit of state in reference to the enforcement of Fundamental Rights.
ARTICLE 12
Part III of the Indian constitution that is concerned with the fundamental Rights starts from Article 12. Article 12 states the “Definition of state”. It mentions about the authorities and the bodies that are considered as state in reference to the part III and part IV of the Indian Constitution. Hence, the definition of state provided in the Article 12 is applicable only to the part III and part IV and not to rest of the constitution.
Article 12 states - “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.”
The definition under Article 12 mentions the State as-
1. Government and Parliament of India
2. Government and Legislature of all states
3. Local Authority
4. Other Authority
within the territory of India or under the control of the Government of India.
The first two points 1 and 2 are clearly pointing towards the inclusion of Executive and Legislature of Union and the States in the ambit of State. Union Executive includes the President, Vice President and the Council of Ministers with the Prime Minister. State Executive includes the Governor and council of state Ministers with the Chief Minister, Union Legislature is consisted of President, Lok Sabha and Rajya Sabha. And the State Legislature includes Governor, State Legislative Assembly and the State Legislative Council.
An important question is raised on the status of judiciary in the perspective of State. As such, Supreme Court has never accepted itself as State. The current scenario in this aspect is that the Judiciary is not covered under the ambit of State when it is performing any act within the judicial limits or within the process of providing justice. But, when the judiciary is performing any administrative task like that of the exams conducted by the High Court Judiciary, then it is treated as the State.
Now, coming to the 3rd point mentioning Local Authority. Section 3 (31) of the General clauses Act, 1987 states that “Local Authority shall mean a Municipal Committee, District Board, Body of Commissioner or any other authority legally entitled to or entrusted by the Government within control or management of a municipal or local fund.”
Hence, the Local self- governing bodies like Municipalities, District Boards, village Panchayats, etc. are included under the perspective of Article 12 and are treated as State in relation to the enforcement of fundamental rights.
The 4th point is an ambiguous part of this definition because the ‘Other Authority’ is not defined anywhere (neither in the constitution, nor in any law). The dynamic nature of State was kept in mind while interpreting Other Authority and defining its scope.
The concept of ‘Other Authority’ is not defined anywhere, but a lot of judgements have been passed from time-to-time providing clarity as what to be included in Other Authority under state. The judgements have helped in evolving this concept.
UNIVERSITY OF MADRAS V. SHANTABAI (1954) -
This case initiated the consideration of clarifying other Authority. University of Madras was established under Madras University Act. The University issued guidelines prohibiting the admission of female students. This decision was challenged in the court alleging that it was in violation of Article 15 as discrimination was made on the basis of gender. Here, the question arises whether the university was under the ambit of State to make it liable for the infringement of fundamental right.