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 In 1928, Motilal Nehru observed that Fundamental Rights should be guaranteed in such a manner that these cannot be withdrawn in any case.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.
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.
The court held that “an authority can be included in ‘Other Authority’ only when it is construed ‘Ejusdem Generis’ with Government or Legislature and so Construed can only mean authorities exercising the governmental functions.” Ejusdem Generis means ‘of the same kind or same nature.’ According to this, to qualify as other Authority, Sovereign function was an inherent quality. If an authority is performing sovereign functions, then it is considered as state, otherwise not.
In this case, Supreme Court observed that the University was not performing sovereign function, hence it was declared as outside the ambit of state and was made free from the liability.
UJJAMBAI V STATE OF UP (1961) -
The judgement passed in the earlier case was overruled in this case. The finding of the Court was that “The bodies mentioned under Article 12 have no common genus running through them and they can’t be placed in one single category on any rational basis.” Hence, the approach of Ejusdem Generis was invalidated by the court saying that this approach was restrictive and other three were not having any common thread.
RAJASTHAN ELECTRICAL BOARD V MOHAN LAL (1967) -
Claim was raised by the petitioner on the basis of Article 14 and Article 16 alleging that the right was violated by making discrimination in promotion. The court held that “All bodies created under a statue is conferred with such powers that will surely affect the fundamental rights. And hence, it becomes necessary to quality such authorities as State.”
In this case, the Rajasthan Electricity Board was enacted trough Electricity Supply Act, 1948 and Court observed its functions as Governmental or Semi-Governmental. Hence, the Court declared the board as state.
SUKHDEV V. BHAGATRAM (1975) -
This Case raised a question whether all the bodies created under statue will be State even when if any authority is created mainly for commercial purpose. The Court held that “Statutory Bodies such as ONGC/LIC/IFC that were set up under special statutes are held to be State under other Authority as they perform Governmental or Sovereign functions.”
SABHAJIT TEEVARY V. UNION OF INDIA (1975) -
The question whether CSIR (Council of Scientific and Industrial Research) is a State or not was raised in this case. It was held by the Court that “CSIR was enacted by the Government of India to promote Industrial Research in India with a majority of its members being nominated by Central Government and major financial assistance was provided by the Government but the Society does not have a statutory character like that of ONGC, LIC or IFC. Hence, CSIR was declared as outside the ambit of state.”
R.D. SHETTY V. INTERNATIONAL AIRPORT AUTHORITY (1979) -
This is quite an interesting case. International Airport Authority invited applications for tenders. R.D. Shetty also applied for a tender. But his tender was not accepted due to some discriminatory reasons. He filed a case against the authority alleging the infringement of his fundamental right. Then, the question arises about the status of Airport Authority with reference to State. The Court held that “This authority was formulated under Airport Authorities Act which is a parliamentary act and observed that Central Government was exercising a lot of powers on this body in relation to Appointment of chairman and other members, Capital Investment, etc.” Hence, this body was declared as under the ambit of State.
The Court laid down six conditions for validating an authority as State-
• Entire share capital held by Government
• Greater Portion of financial assistance by the Government
• Deep and pervasive control of state
• Functions of Corporation are of public importance and closely related to Government functions
• A Government department is transferred to a corporation
• Enjoys Monopoly status which is conferred and protected by State
SOM PRAKASH V. UNION OF INDIA (1980) -
“A public authority is a body that performs public functions and performs duties and carries out its transactions for the benefit of state,” was held by the court.
Besides that, the court provided five criteria’s for declaring an authority as State-
• Financial Resources or state being chief funding source
• Undertake governmental functions
• Government is having plenary or absolute control
• Prior history of same activity being carried out by Government and now handed over to new body
• Some element of authority or command with that body
AJAY HASIA V. KHALID MUJIB (1981) -
The Supreme Court provided clarity regarding Determining Test in this case. It was held that determining test is not whether a body was formulated under a statute or not, but whether a body is working as an instrumentality or an agency of the state or not? If yes, then it will be State under Article 12.
In this case, Court approved of the tests laid down in R.D. Shetty and added that these tests are not conclusive, these are merely indication that has to be used with case and caution.
The cases mentioned above is not the exhaustive list for deciding whether an authority is State or not. But these provide some basic criteria’s for holding an authority as State. In the current scenario, weightage is not provided to the functional aspect of authority, but to the usual degree of control and financial assistance by Government.