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Article 12 Of The Indian Constitution: Definition Of State

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:
  1. The Government and Parliament of India
  2. The Government and Legislature of each State
  3. All local and other authorities within the territories of India
  4. 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 Settlement Boards.

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 Sheravardi, these are:
  1. The entire share capital of the corporation is held by Government
  2. Existence of deep and pervasive state control
  3. The functions of the corporation are of public importance and closely related to governmental functions
  4. A department of Government is transferred to a corporation
  5. 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 the S.R.M 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 Act.

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.

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