The third Chapter of the Indian Constitution provides certain fundamental
rights to the citizen and non-citizens of India. All these Fundamental Rights
are a guarantee against a State action. The private action is protected by the
ordinary law of the land.
Thus if any body, authority, department, etc. that comes under the definition of
State, violates any of the fundamental rights, given in the Indian Constitution,
such violation can be challenged under Art 32 through a writ petition before the
court by the person whose right was violated. The definition of State is
provided in Article 12 of the Constitution. It provides:
The term "State" includes:
- The Government and Parliament of India
- The Government and Legislature of each State
- All local and other authorities within the territories of India
- All local and other authorities under the control of Government of India
From this it can be observed that the term State includes both the legislative
and executive organs of the Union of India. Thus if any of these bodies violates
any fundamental rights it can be challenged before court.
Now coming to the definition of "Authority" mentioned in Art 12 it means the
power to make laws, rules, regulations, notifications etc.
Furthermore, Art 12 mentions two types of authority first the "local authority"
and the second "other authority". Coming to the first mentioned authority the
local authority, this term is defined in sec 3(31) of the General Clauses Act,
1897 and under this definition the term local authority refers to authorities
like Municipalities, District Boards, Panchayats, Improvement Trust and Mining
The second mentioned authority in Art 12, other authority, has neither been
defined under Constitution of India or any other statutes. But the definition of
this term has evolved through several cases. In University of Madras V. Shantha
Baithe Madras High Court held that the term other authorities only includes the
authorities of like nature and this term means the authorities exercising
governmental and sovereign functions. It does not include natural or juristic
person unless maintained by state. The court in this case gave a restrictive
interpretation of the term "Other Authority".
Later in Ujjammabai V. State of U.P
, the court rejected the view, given in the
Shantha Bai's case
. The court held that the rule of ejusdem generis cannot be
applied to interpret this expression because there is no common genus running
through the bodies which come under this expression.
Also in Electricity Board, Rajasthan V. Mohan Lal
the Supreme Court held that
the expression "other authorities" is wide enough to include all authorities
created by the Constitution or Statute on whom powers are conferred by law and
it was not necessary that the statutory authority should be engaged in
performing governmental or sovereign functions. Later in Sukhdev Singh V.
Bhagatram Sardar Singh Raghuvansi
it was held that the statutory authorities
such as ONGC, IFC, LIC etc. come within the definition of State.
The cases of Ujjammabai and Mohan Lal gave a liberal interpretation to the
expression "other authority". But this is not the widest interpretation of the
term other authority. In 1979 in the case of Ramana Dayaram Shetty V. The
International Airport Authority
, the court gave a more broad and liberal
interpretation than the previous interpretations. In this case the court held
that if a body is instrumentality of agency of government it may be an authority
under the Art 12.
In this case, J. Bhagwati discussed in detail various factors relevant for
determining whether a body is an instrumentality or agency of the state. These
factors were finally summarised by him in Ajay Hasia V. Khalid Mujib
, these are:
- The entire share capital of the corporation is held by Government
- Existence of deep and pervasive state control
- The functions of the corporation are of public importance and closely related to governmental functions
- A department of Government is transferred to a corporation
- Whether the corporation enjoys monopoly status which is State conferred or State protected.
If considering the above matters it is found that the corporation is an
instrumentality or agency of government, it would be an authority and therefore
will be considered State under Article 12. But these tests are not conclusive
which is why these have to be used with care and caution.
Later Ajay Hasia raised the question of whether the society registered under the
J&K Registration of Societies Act was State within the definition of Art 12. It
was held that a Society registered under the Jammu and Kashmir Registration of
Societies Act, 1898 is an agency or "instrumentality of the State" because the
State and the Central Government have full control of the working of the
society. Thus it comes under the definition of State under Art 12.
In the case of Janet Jeyapaul (Dr.) V. S.R.M University
University which was a private university was held to be an authority under the
Article 12 of the Constitution and amenable to writ jurisdiction because of the
reasons of imparting education to large amount of students which is a public
function. Also, it was notified as a deemed university under Sec 3 of the UGC
There has been an important question of whether the judiciary comes under the
definition of "State" in Article 12 or not. This question first arose in Naresh
V. State of Maharashtra which held that even if a court is the State a writ
under Art 32 cannot be issued to a High Court of competent jurisdiction against
its judicial orders because such orders cannot be said to violate the
fundamental rights. Though this case remarked the court or judiciary as a state
but it did not provide any remedy which can be availed under Art 32 for
violation of fundamental rights.
But later in A.R.Antulay V. R.S.Nayak
the Supreme Court in a seven-judge
bench held that the expression "State" as defined in Article of Constitution
includes the Judiciary also and remedy provided in Art 32 can be availed by one
whose fundamental right got violated.