You are on page 1of 27

PROJECT REPORT

ON
CONSTITUTIONAL LAW

Interpretation of State under Article 12 of


The Indian Constitution

Submitted To:

Submitted By:

Dr. Shruti Bedi

Akhil Ahuja (124/13)

UILS, Panjab University

B.Com./LLB (Honors)

Chandigarh.

Semester 4th

Chapter 1

INTRODUCTION
1.1 Article 12 of the Constitution of India:
The Constitution of India, Article 12 : In this part, unless the context otherwise requires, the
State includes the Government and the Parliament of India, the Government and the
Legislature of each of the States, all local and other authorities within the territory of India or
under the control of the Government of India.
Article 12 of the Constitution has four components:

(a) The Government and Parliament of India- Government means any department or institution
of department. Parliament shall consist of the President, the House of People and Council of
States.
(b) The Government and Legislature of each State- State Legislatures of each State consist of the
Governor, Legislative Council and Legislative Assembly or any of them.
(c) Local Authorities within the territory of India
(d) Other Authorities- Authorities other than local authorities working( i ) Within the territory of India or;
( ii ) Under the control of the Government of India.

1.2 Importance of Article 12:


1 | Page

The Constitution of India has defined the word State for the purpose of Part III and Part IV. The
State has been defined by different political thinkers. In Political theory for state to exist the
Territory, Population, Sovereignty and Capacity to maintain international relation is important
but this definition could not serve the purpose of enforcement of Fundamental Rights.
Fundamental Rights constitute limitation on the power of the State and are a guarantee against
State action. The Fundamental Rights are a protection against invasion of the rights by the State.
So, Article 12 of Indian Constitution defines State against whom the fundamental rights can be
claimed. Therefore, whether Constitution says or not, it is generally assumed that Fundamental
Rights given in Part III are available against the State that is against the action of State and its
officials.

1.3 Judicial Interpretation of Article 12:


The definition of State in Article 12 is not exhaustive but inclusive, which means that apart from
the bodies or organs which have been enumerated, others may also be covered by the expression
State.
In State of West Bengal v/s Subodh Gopal Bose1, the Supreme Court observed that the object of
Part III of the Indian Constitution is to provide protection to the rights and freedoms guaranteed
under this part by the invasion of State. Individuals need constitutional protection against the
state. The rights which are given to the citizens by way of fundamental rights as included in Part
III of the Constitution are guarantee against State action as distinguished from the violation of
such rights from private parties. Private action is sufficiently protected by the ordinary law of
land. Patanjali Sastri, CJ, said:
The whole object of Part III of the constitution is to provide protection for the freedoms and
rights mentioned therein against arbitrary invasion by the state
In P.D. Shamdasani v. Central Bank of India2, the petitioner, in an application under Article 32
of the constitution, sought the protection of the court on the ground that his property rights under
1 AIR 1952 SC 59
2 Ibid.
2 | Page

Articles 19(1)(f) and 31 were infringed by the action of another private person the central bank
of India. The Supreme Court said that the language and structure of Article 19 and its setting in
Part III of the Constitution clearly show that the Article was intended to protect those freedoms
against state action other than in the legitimate exercise of its power to regulate private rights of
property by individuals is not within the purview of this article.3
The term state thus includes executive as well as the legislative organs of the Union and States. It
is therefore, the actions of these bodies that can be challenged before the courts as violating
fundamental rights.
The first two categories included the legislative and executive wings of the Union and State in all
their possible varieties. They are quite specific and self explanatory. The latter two categories,
particularly the last are not so specific and require some explanation. To give a wider dimension
to Fundamental Rights the Judiciary has interpreted State in different context at different time.

Authorities: Authority means a person or body exercising power to command. In the context of
Article 12, the word authority means authority who has the power to make laws, orders,
regulations, bye-laws, notifications etc. which have the force of law and power to enforce those
laws.

Other authorities: In article 12 other authorities is used after mentioning a few of them, such as,
the government, parliament of India, the government and legislature of each of the states and all
local authorities.
Courts have ruled that where there is pervasive or predominant governmental control or
significant involvement in the activities, such bodies, entities and organizations fall within the
definition of the State. As a result of judicial interpretation, the State has been held to
include

statutory

bodies

such

as

insurance

corporations, nationalized

banks, airline

corporations, electricity boards, educational institutions and societies whose composition and
3 J.N. Pandey, The Constitutional Law Of India, Central Law Publisher, Allahabad, 2011, p. 59

3 | Page

administration are predominantly controlled by the government. Consequently the reach and
extent of protection of fundamental rights has been widened and greater protection has been
afforded especially in the area of employment against discriminatory practices.
Again there are private, non-State entities which discharge important quasi-governmental or
important public functions, which have repercussions on the life and welfare of the community.
Such entities and bodies can be regarded as the State as would appear from the concurring
opinion of Justice Mathew. Institutions engaged in matters of high public interest or performing
public functions are, by virtue of the nature of the functions performed, government agencies.
Activities which are too fundamental to the society are by definition too important not to be
considered government function.4
The word State under Article 12 has been interpreted by the courts as per the changing times .It
has gained wider meaning which ensures that Part III can be applied to a larger extent which is
discussed in Chapter 3 of the project. We hope that it would continue to extent its width in
coming times.

Chapter 2
4 Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331, 1355

4 | Page

Interpretation of Local
Authority
In this Part, unless the context otherwise required, "the State" includes the Governmental 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.
Fundamental Rights are available against the state. Article 12 of the Indian Constitution defines
the State. State includes local authority.

2.1 Meaning of Local authority in General


Clauses Act:
Local authority is defined in sec 3(31) of General Clauses Act:
"Local authority" shall mean a municipal committee, district board, and body of port
commissioners or other authority legally entitled to, or entrusted by the Government with, the
control or management of a municipal or local fund.
A proper and clear scrutiny of the language of Section 3(31) of General Clauses Act 1897
suggests that an authority, in order to be local Authority, must be of a like nature and character as
a Municipal Committee, District Board or Body of Port Commissioners possessing therefore
many if not all, of the distinctive attributes and characteristics of municipal Committee, District
Board or Body of Port Commissioners, but possessing one essential feature, namely, that it is
legally entitled to or entrusted by the Government, with the control and management of
Municipal or local fund. Local bodies are subordinate branches of the Government activities.
They are democratic institutions managed by the representative of the people. They function for
the public purpose and take away a part of the government affairs in the local areas.

5 | Page

2.2 Judicial interpretation of Local Authority:


The distinctive attributes and characteristics of an authority to be a local authority were noticed
by Supreme Court in Union of India v R.C. Jain5. These briefly are:
The authorities must have separate legal existence as cooperate bodies. They must not
be mere government agencies but must be legally independent agencies.
They must function in defined area and must ordinarily, wholly or partly, directly or
indirectly be elected by the inhabitants of the area.
Next they must enjoy a degree of autonomy with freedom to decide for themselves the
questions of policy affecting the area administered by them. The autonomy may not be
complete and the degree of dependence may vary considerably but, and appreciable
measure of autonomy there must be.
They must be entrusted by statute with such governmental functions and duties as are
usually entrusted to Municipal Bodies, such as those connected with providing amenities,
to the inhabitants of the locality, like health and education services, water and sewerage,
town planning and developments, roads, markets transportation , social welfare services
etc. Broadly they may be entrusted with the performance of civic duties and functions
which would otherwise be governmental duties/ functions.
Finally they must have the power to raise funds for the furtherance of their activities
and the fulfillment of their projects by levying taxes, rates, charge of fees. This may be in
addition to moneys provided by Government obtained by borrowing or otherwise.
In Union of India v R.C.Jain,6 it was said what is essential is that control and management of
the fund must vest in the authority. The Delhi Development Authority was held to be Local
Authority because it was constituted for the specific purpose of development of Delhi according
to plan which is limited to Delhi. It has some elements of popular representation in its
composition and enjoys a considerable degree of autonomy.
In Municipal Corporation of Delhi v Birla Cotton & Weaving Mills Delhi 7, Hidayatullah. J.,
described some of the attributes of Local Authorities in this manner:
5 AIR 1981 SC 951.
6 Ibid.
6 | Page

Local Bodies are subordinate branches of Government activity. They are political sub-division
and agencies which exercise a part of State functions (as they are intended to carry on local selfgovernment the power of taxation is a necessary adjunct to their other powers). They function
under supervision of the Government.
In Valijbhai Muljibhai Soneji v State of Bombay,8 one of the questions was whether Trading
Corporation was Local Authority as defined by Section 3(31) of the General Clauses Act, 1897.
It was held that it was not, because it was not an authority legally entitled to or entrusted by the
government with, control or management of a Local fund. It was observed that though the
Corporation was furnished with funds by the Government for commencing its business that
would not make the funds of the corporation.
In, Calcutta State Transport Corporation v Commr. Of Income Tax, West Bengal,9 the Supreme
court refused to characterize the corporation as a Local Authority. The corporation is meant
only for the purpose of providing road transportation services and has no element of popular
representation in its Constitution. Its powers and functions bear no relation to the powers and
functions of the municipal committee. It is no more in the nature of a trading corporation.
Expression Local Authority shall include Municipal Board as laid down in Rashid Ahmed v
Municipal Corporation, Kairana10. The Supreme Court struck down a by-law framed by the
respondent Municipal Corporation, which prohibited the establishment of a market for wholesale
transactions in vegetables except with the permission of the Board. The by-law was held to
impose unreasonable restriction on the fundamental rights of the petitioner contained in Article
19(1) (g) and hence void under Article 13(1) of the Constitution.

7 AIR 1968 SC 1232


8 AIR 1963 SC 1890
9 AIR1996 sc 1316
10 AIR 1950 SC 163
7 | Page

In Ajit Singh v State of Punjab,11 The Gram Panchayat was held to be a local Authority with the
meaning of the term State under Article 12. Land acquired for the Panchayat was thus held as
acquired under article 31-A(1) and (2) by the State.
Local Authority also includes Town Area Committee 12, a Notified Area Committee13,
Improvement Trust, a Mining Settlement Board, A Municipal Corporation, and a Port Trust.14
In P. Srivastava v Union of India,15 the Ramgarh Cantonment Board, created by the Cantonment
Act, has been held to be a local authority and is therefore included in the term State within the
meaning of Article 12.
Whether Mines Board of Health constituted under the Bihar and Orissa Mining Settlement Act
1920 is a Local Authority was considered by Supreme Court in Surya Kant Roy v Imanul16 and
the court observed that the board is not wholly under the control of the state government in all its
functions. The board levies taxes and other assessment and has got its own funds. The fact that
government and local authorities must grant fund to the board does not mean that all funds of the
board are Government Funds. It was held that board is a local authority within the meaning of
the expression as defined in Section 3(31) of General Clauses Act 1897.
Article 12 does not define Local authority but defines State. In Housing Board of Haryana v
Employees Union,17 the question posed for the consideration before the Supreme Court as to
whether Housing Board of Haryana is a Local Authority within the meaning of Sec32(iv) of the
11 AIR 1967 SC 856
12 Mohd. Yasin v Town Area Committee, Jalalabad, AIR 1952 SC 115
13 Sri Ram v The Notified Area Committee, Khatauli, AIR 1952 SC 118
14 J.H.wadia v Board of Trustees, Port of Mumbai, AIR 1985 SC 1415
15 AIR 1996 SC 212
16 AIR 1975 SC 1053
17 AIR 1996 SC 434
8 | Page

Payment of Bonus Act 1965. The Supreme Court Observed that the functions as are indicated in
the housing scheme are essentially performed by Municipal Boards and Municipal Council
which, undoubtedly are Local Authorities but on that analogy the Haryana Housing Board
cannot be treated as Local Authority as the extent of the control of the State Government under
which the Board had to function is so prominently pervasive that is almost destructive to its
independence which will also be apparent from the facts that in matters of settlement of its
annual programmes, budget and establishment schedule, the board has to obtain the sanction of
the State Government. The housing Board does not have the semblance of independence which
are normally possessed by the Local Self-government. The board not even partially consists of
elected representative of the people. The legislature itself has given the status of Local Authority
only for the purpose of Land Acquisition Act. It is local authority for limited purposes. The
legislature could well have given this status to the board for the purpose of the Payment of Bonus
Act but this has not been done and so it cannot be treated as a local authority under Payment of
Bonus Act.

9 | Page

Chapter 3
Interpretation of Other
Authorities- Judicial Evolution
The interpretation of the term other authorities in Article 12 has caused a good deal of
difficulty, and judicial opinion has undergone changes over time. Todays government performs a
large number of functions because of the prevailing philosophy of a social welfare state. The
government acts through natural persons as well as juridical persons. Some functions are
discharged through the traditional governmental departments and officials while some functions
are discharged through autonomous bodies existing outside the departmental structure, such as,
companies, corporations etc.18
While the government acting departmentally, or through officials, undoubtedly falls within the
definition of state under Article 12, doubts have been cast as regards the character of
autonomous bodies. Whether they could be regarded as authorities under Article 12 and, thus,
be subjected to Fundamental Rights? The judicial trend with regard to the interpretation of term
other authorities can be understood by studying the case laws.
In University of Madras v Shanta Bai19 the Madras High Court held that other authorities
could only indicate authorities of a like nature, i.e. ejusdem generis. Ejusdem generis is a Latin
18 M.P. Jain, Indian Constitutional Law. Nagpur: Lexis Nexis, 2012. p.907. Print.
19 AIR 1954 Mad 67.
10 | P a g e

phrase which means of the same kind. As a legal term it refers to a principle for interpreting
the language of a statute. The rule of ejusdem generis says that when a generic description
follows specific items, the more generic description is read to apply only to things belonging to
the same group or class as the specific items. So construed, it could only mean authorities
exercising governmental or sovereign functions. In cannot include persons, natural or juristic,
such as, a University unless it is maintained by the State.
However, this view of Madras High Court has not been accepted by the Supreme Court. This
restrictive interpretation of other authorities was rejected by Supreme Court in Ujjammbai v.
State of U.P.20 Supreme Court observes that Article 12 winds up the list of authorities falling
within the definition by referring to other authorities with in the territory of India which
cannot, obviously, be read as ejusdem generis with either the Government and the Legislature or
local authorities. The words are of wide amplitude and capable of comprehending every
authority created under the statute and functioning within the territory of India. In Article 12 the
bodies specifically named are the Government of the Union and the States, the Legislation of the
Union and the States and local authorities. There is no common genus running through these
named bodies nor can these bodies so places in one single category on any rational basis.
Consequently, it must include every type of authority set up under a statute for the purpose
of administering laws enacted by the Parliament or by the State including those vested with
the duty to make decisions in order to implement those laws.

3.1 Statutory Authority:


Definition of State is not narrow. It includes all such entities that are constituted by the State.
Considerable light is thrown on what are the other authorities contemplated by Article 12 which
falls within the definition of the State by the Supreme Court in Rajasthan State Electricity
Board v. Mohan Lal.21 This was the case in which court was called upon to consider whether
Rajasthan Electricity Board was an authority within the meaning of the expression other
authorities in Article 12. Bhargava J., delivering the judgment of the majority pointed out that
20 AIR 1962 SC 1621.
21 AIR 1967 SC 1857.
11 | P a g e

the expression other authorities in Article 12 could include all constitutional and statutory
authorities on whom powers were conferred by law. The judge also said that if anybody of
persons, had authority to issue directions the disobedience of which would be punishable as a
criminal offence, that would be an indication that authority was state. Shah J., who delivered a
separate judgment, agreeing with the conclusion reached by the majority, preferred to give a
slightly different meaning to the expression other authorities. He said the authorities,
constitutional or statutory, would fall within the expression other authorities only if they are
invested with the sovereign power of the state, namely the power to make rules and regulations
which have the force of the law. The ratio of this judgment, thus, is that a constitutional or
statutory authority would be within the meaning of the expression other authorities, if it had
been invested with statutory power to issue binding directions to third parties, the disobedience
of which would entail penal consequence or it had sovereign power to make rules and
regulations having the force of law. In context of this case, the Supreme Court in Sukhdev v.
Bhagatram22 considered the meaning of the word other authorities as provided in Article 12 of
the Constitution. The Court held that the rules and regulations framed by the Oil and Natural Gas
Commission, the Life Insurance Corporation and the Industrial Finance Corporation are all
States because the rules and regulations made by them have the force of law. The employees of
these statutory bodies have a statutory status and they are entitled to the declaration of being in
employment when their removal or dismissal is in the contravention of the statutory provisions.
The Court held that these statutory bodies are authorities as provided under Article 12 of the
Constitution.
Justice Mathew in his concurring judgment advocated the new evolving concept of the state
acting through a corporation and making it an agency or instrumentality of the State which found
support in subsequent decisions of the Supreme Court. He was pleased to the reason that the
State is an abstract entity and it can only act through the instrumentality or agency of natural or
juridical persons. Therefore, there is nothing strange in the notion of state acting through a
corporation and making it an agency or instrumentality of the state. He observed that the
Corporations were agencies or the instrumentalities of the state as the Central Government
contributed the original capital of the Corporation and large part of profit went to the Central
22 AIR 1957 SC 1331.
12 | P a g e

Government and the Government exercised control over the Corporations and the Corporations
discharged the functions of great public importance.
In order to analyze the link between the State and undertaking in question, it was necessary to
evolve some formula; and that is the principal approach adopted by the Supreme Court in its well
known judgment in Ramana Dayaram Shetty v. The International Airport Authority of India. 23
International Airports Authority is a body corporate constituted under the International Airports
Authority Act, 1971. The Director of the Authority had issued a notice, inviting tenders for
putting up and running a second class restaurant and two snack bars at the International Airport
at Bombay. Tenders were received in response to the notice. Shri R.D. Shetty, the appellant, who
was not a tenderer, filed a writ petition which was rejected by the Bombay High Court. He
applied for and obtained the special leave to Appeal in the Supreme Court. He urged that the
notice inviting tenders by the Airports Authority had stipulated a condition of eligibility, but
subsequently same was changed without any rational justification, as a result of which he could
not submit his tender. It was further urged before the Supreme Court that the International
Airport Authority being a state within the meaning of Article 12 of the Constitution, was bound
to give effect to the condition of eligibility set up by it was and not entitled to depart from it at its
own sweet will without rational justification. The Airports Authority contended that since the
appellant had not submitted any tender, he had no locus standi to maintain the petition and he
had suffered no injury by the grant of license to one of the respondents. In further raised the
contention that the condition of eligibility had no statutory force. Therefore, even if there was
any departure from the standard or norm of eligibility, it was not justiciable.
The Supreme Court dismissed the appeal on the ground that the appellant had not submitted any
tender and he had suffered no injury. Nevertheless, it held that where the government is dealing
with the public, whether by the way of giving jobs or entering into contracts or issuing quotas or
licenses or granting other forms of largesse, the Government cannot act, arbitrarily and its sweet
will, and, like a private individual deal with any person it pleases, but its action must be in
conformity with a standard or norm which is not arbitrary, irrational or irrelevant. The power or
discretion of the Government in the matter of grant of largesse including award of jobs,
contracts, quotas, licenses, etc. must be confined and structured by rational, relevant and non23 AIR 1979 SC 1628.
13 | P a g e

discriminatory standard or norm and if the Government departs from such norm or standard in
any particular case or cases, the action of the Government would be liable to be struck down,
unless it can be shown by the Government that the departure was not arbitrary, but was based on
some valid principle which in itself was not irrational, unreasonable or discriminatory. After
making the aforesaid observation, the Supreme Court further held that corporations established
by statute or incorporated under law are an instrumentality or agency of the Government, if they
satisfied certain tests which may be summed up as under:

i.
ii.

The source of the share capital;


The extent of the State control over the Corporation, and Whether it is deep and

iii.
iv.

pervasive;
Whether the Corporation has a monopoly status;
Whether the functions of the Corporation are of public importance and closely related

v.

to governmental functions; and


Whether, what belonged to a Government Department formerly was transferred to the
Corporation.

After laying down the aforesaid tests, the Supreme Court observed that the list is not exhaustive
and by its very nature, it cannot be, because, with increasing assumption of new tasks, growing
complexities of management and administration and the necessity of continuing adjustment in
relations between the Corporation and Government, calling for flexibility, adaptability and
innovative skills, it is not possible to make exhaustive enumeration of the tests which would
invariably and in all cases provide an unfailing answer to the question whether a Corporation is a
governmental instrumentality or agency.

3.2 State and its instrumentalities:


Various factors for determining whether a body is agency of state has been laid down in Ajay
Hasia v. Khalid Mujib24:

24 (1981) 1SCC 722: AIR 1981SC 487


14 | P a g e

a)

If the entire share capital of the corporation is held by the government, it would go for long

way towards indicating that the corporation is an instrumentality or an authority of the


government.
b)

Where the financial assistance of the state is so much as to meet almost entire expenditure of

the corporation it would afford some indication of corporation being impregnated with the
government character.
c)

Whether the corporation enjoys monopoly status which is state conferred or state protected.

d)

Existence of deep and pervasive state control may afford an indication that the corporation is

a state agency or instrumentality.


e)

If the function of the corporation are of public importance and closely related to

government functions, it would be relevant factor in classifying a corporation as an


instrumentality or agency of the government.
f)

If a department of government is transferred to corporation, it would be strong factor

supporting the inference of the corporation being an instrumentality or agency of the


government.
In the case of Ajay Hasia v. Khalid Mujib,25 the question raised was whether the Regional
Engineering College, Srinagar, established, administered and managed by a society registered
under the J&K Registration of Societies Act, was State within the meaning of Article 12. Justice
P. N. Bhagwati speaking for a unanimous five-judge bench reiterated that the test for determining
whether a corporation falls within the definition of State in Article 12 was an instrumentality or
agency of government. The enquiry must be not how the juristic person was born but why was it
brought into existence. It was therefore immaterial whether the corporation was created by a
statute or under a statute. The concept of instrumentality or agency of the government was not
limited to a corporation created by a statute but was equally applicable to a company or society
considering the relevant factors.

25 Supra. 24
15 | P a g e

Considering the tests formulated in Ajay Hasia case26, and holding that the tests so laid down,
were not a rigid set of principles, so that if a body fell within any of them, it must, ex hypothesis,
be considered to be a state within the meaning of Article 12, the majority ruled that the question
in each case would be whether in the light of cumulative facts as established, the body is
financially, functionally and administratively dominated by or under the control of Government.
Such control must be particular to the body in question and must be pervasive. If it was found
that the control of the Government was merely regulatory whether under Statute or otherwise, it
would not serve to make the body, a state, the court held.27
Explaining and criticizing the decision in Ajay Hasia case, the minority, consisting the two
learned judges, said that the tests laid down in that case were relevant for the purpose of
determining whether an entity was an instrumentality or agency of the state and that simply by
holding a legal entity to be an instrumentality or agency of the state, it did not necessarily
became an authority within the meaning of other authorities in Article 12. To be an authority,
the learned judges opined, the entity should have been created by a Statute or under a statute
and functioning with liability and obligations to the public.
Applying the tests laid by the Apex Court in Pradeep Kumar Case,28 a Divisional Bench of the
Supreme Court in G. Bassi Reddy v. International Crops Research Institute,29 held the
respondent institute is not covered by Article 12. The institute is an International Organization,
set up as a non-profit research and training centre, with the object to help developing countries in
semi-arid tropics to alleviate rural poverty and hunger in ways that are environmentally
sustainable. Not set up by the Government, the institute gives its services voluntarily to a large
number of nations besides India. It is not controlled by, neither it is accountable to the
Government. The Indian Governments financial contribution to the Institute is minimal and is
participation in administration of the Institute is limited to 3 out of 5 members.
26 Ibid.
27 Pradeep Kumar v. I.I.C.B., (2002) 5 SCC 111.
28 Supra 27.
29 AIR 2003 SC 1764.
16 | P a g e

It was laid down that The Indian Statistical Institute 30, Indian Council of Agricultural research 31,
Sainik School Society32, U.P. State Co-operative Land Development Bank Ltd.33 , U.P Rajya
Karamchari Kalyan Nigam34, all societies registered under the Societies Registration Act; Project
and Equipment Corporation of India Ltd. 35 a government of India undertaking; Food Corporation
of India36, a statutory corporation; The Steel Authority of India Ltd, a Public Limited company
owned, controlled and supervised by the Central Government 37; Mysore Paper Mills Ltd, a State
Government Company38; The Indian Oil Corporation, a company registered under the Companies
Act, 195639; a State-aided school, whose employees enjoy statutory protection and which is
subject to the regulations made by the State education department 40; a medical college run by

30 B.S. Minhas v. Indian Statistical Institute, (1983) 4 SCC 582: AIR 1984 SC 363.
31 P.K. Ramchandra Iyer v. Union of India, (1984) 2 SCC 141.
32 All India Sainik School Employees Association v. Sainik School Society AIR 1988
SC 88.
33 P. State Co-operative Land Development Bank Ltd. V. Chandra bhan Dubey AIR
1999 SC 753.
34 Virendra Kumar Srivastav v. U.P Rajya Karamchari Kalyan Nigam, (2005) 1 SCC
149
35 A. L. Kalra v. Project and Equipment Corporation (1984) 3 SCC 316
36 Workmen v. Food Corporation of India, (1985) 2 SCC 136
37 Bihar State Harizan Kalyan Parishad v. UOI (1985) 2 SCC 644
38 Mysore Paper Mill Ltd. v. Mysore Paper mill Officers Association (2002) 2 SCC
167
39 Mahabir Auto Stores v. Indian Oil Corporation (1990) 3 SCC 752
40 Mnamohan Singh Jaitli v. Governer, UT of Chandigarh 1984 suppl SCC 540
17 | P a g e

municipal corporation41; several State electricity boards42 created on the lines of Rajasthan
Electricity Board; Central Inland Water Transport Corporation Ltd, a government company
jointly owned by Central government and two State governments 43; a Government Company
constituted as development authority under a State Town Planning Act; regional rural banks
established under the Regional Rural Banks Act,1976; port trusts created under the Major Port
Trusts Act, 1889 or 1963 have been held other authorities within the meaning of Article 12. In
M.C. Mehta v. Union of India44, without deciding the question finally, Justice Bhagwati advanced
strong arguments for including the non-governmental companies within the meaning of state.

41 Dinesh Kumar v. Moti lal Nehru Medical College, Allahabad (1985) 3 SCC 542
42 Rohtas Industries Ltd. v. Bihar S.E.B, 1984 supp SCC 161
43 Central Inland Water Transport Corporations Limited v. Brojonath Ganguly (1986)
3 SCC 156
44 (1987) 1 SCC 395
18 | P a g e

Chapter 4
Judiciary- Is It a Part of the State?
Judiciary is the prominent organ of the State. Legislature frames the law and executor organ
implements them and enjoys vast power of delegated legislation as well. One of the most
important functions of Judiciary is to check invasion of fundamental right by these two organs
and their instrumentality. Judiciary is to turn down the rules, regulations, which are in clear
violation of fundamental rights. So judiciary act in three different capacities:
a)

As a rule making authority

b)

As an administrative authority

c)

Act judicially

Judiciary is part of State or not depends upon the capacity in which it acts. When judiciary acts
in its judicial capacity, it is not included within the meaning of other authorities and therefore,
it is not a State under Article 12. But when judiciary acts in administrative capacity, it is in
included within the meaning of other authorities and therefore, it is State under Article 12. If
judiciary acts in administrative capacity or exercises administrative function or make rules and
its actions or rules contravene Fundamental Rights, they may be challenged in the Court.

4.1 Judiciary in its Administrative and Rule


making capacity:
In Paramatam Sharan v Chief Justice 45 it was held that when Chief Justice of the High Court or
Supreme Court appoints officer of the Court in the exercise of his power of appointment and the
appointment made by him contravene the Fundamental Rights, they may be challenged in the
Court because when Chief Justice of the High Court or Supreme Court makes appointment

45 AIR 1964 Raj. 13


19 | P a g e

officer of the Court the exercise of his power of appointment, he acts in administrative capacity
and therefore, he is included within the meaning of term State under Article 12.
In Prem Chand Garg v/s Excise Commissioner U.P.46 the question related to the rule making
power of the Supreme Court, conferred by Article 145 for regulating, generally, the practice and
procedure of the Court. Rule 12 of Order 35 made by Supreme Court, provided that the court
might in the proceeding to which the said Order applied, impose such terms as to costs and as to
giving of security, as it considered fit. A petition under Article 32 was one such proceeding
covered by Order 35. By the petition under Article 32, the petitioner has challenged the validity
of an order of the Excise Commissioner refusing permission to the distillery to supply power
alcohol to the petitioner. The petition was admitted, but, acting under the impugned Rule, the
Court directed the petitioner to deposit a security of Rs.2500/- in cash within 6 weeks, as a
condition precedent for issuing rule nisi to the impleaded respondents. The petitioner having
failed to collect the requisite fund, challenged the validity of Rule 12 of Order 35 and contended
that the said Rule was ultra vires as it contravened their Fundamental Right guaranteed by Article
32.
Gajendragadhkar, J. speaking for the majority, held that impugned Rule invalid, as it retarded the
assertion or vindication of the Fundamental Right to move to the Supreme Court under Article
32. The Rules framed under Article 145, the Court held are framed in the exercise of the
delegated power of legislation, and the said power could not be exercised so as to affect the
Fundamental Rights. Likewise, the Chief Justice, in exercising powers of appointment of officer
under Article 146, shall be amenable to the writ jurisdiction, if appointments are made in
violation of Article 14-16 of the Constitution.
It is thus be stated that Judiciary while exercising its rule making power would be covered by
the expression State within meaning of Article 12.

46 AIR 1963 SC 996 (1004).


20 | P a g e

4.2 Judiciary in its judicial capacity:


The Court in Ratilal v State of Bombay47 expresses the view that the judgment of the court
cannot be challenged for violation of Fundamental Rights. The Mysore High court in Keshavan
Iyenger v State of Madras,48 held that equal protection clause of Article 14 applies to the
Judiciary with the same force and Spirit.
However the view of the Supreme Court does not appear to be consistent. In Budhan v State of
Bihar49 the Supreme Court held that the guarantee of equal protection under Article 14 of the
constitution extends to all the three organs of the State viz executive, legislative and Judicial. The
arbitrary and unreasonable judicial decisions are subjected to judicial review by the superior
courts.
In Naresh Kumar v State of Maharashtra 50 the issue posed before the Supreme Court for
consideration whether judiciary is covered by the Expression State in Article 12 of the
Constitution. In this case a suit relating to claim of damages, for the publication of the English
weekly Blitz an alleged malicious libel, was being heard by Mr. Justice Tarkunde of the
Bombay High Court. During the pendency of the suit, the learned Judge orally directed the
Petitioner that the evidence of a witness should not be published in the Blitz. The petitioner felt
aggrieved by the said oral order and moved the Supreme Court under Article 32 and contended
that the order had infringed his fundamental right contained in Article 19(1)(a) of the
Constitution. Dismissing the writ petition Court ruled that:
When a judge deals with the matters brought before him for his adjudication, he first decides
question of fact on which the parties are at issue, and then applies the relevant Law to the said
facts. Whether the findings of facts recorded by the Judge are right or wrong, and whether the
47 AIR 1954 SC 388; AIR 1953 Bom 242.
48 AIR 1956 Mys 20
49 AIR 1955 SC 191
50 AIR 1967 SC 1
21 | P a g e

conclusion of law drawn by him suffers from any infirmity can be considered and decided if the
party aggrieved by the decision of the Judge takes the matter before appellant Court.
So, the Court held that Fundamental right is not infringed by order of Court and no writ can be
issued to High Court. In Naresh the majority judgment held that the scope of the jurisdiction of
this Court dealing with writ petitions under Art. 32 was examined by a Special Bench of this
Court in Smt. Ujjam Bai v. State of Uttar Pradesh51, The decision would show that it was
common ground before the Court that in three classes of cases a question of the enforcement of
the fundamental rights may arise; and if it does arise, an application under Article 32 will lie.
These cases are:
(1) where action is taken under a statute which is ultra vires the Constitution
(2) where the statute is intra vires but the action taken is without jurisdiction; and
(3) where the action taken is procedurally ultra vires as where a quasi judicial authority under an
obligation to act judicially passes an order in violation of the principles of natural justice.
But in the case the Supreme Court expressed the view that the Regional Transport Authority
while acting as a quasi judicial body, its decisions cannot be challenged as violative of Article 14
of the constitution. Close scrutiny of the observation of the Supreme Court would reveal that the
fundamental rights are not available against the Judiciary. The court held that violation of
Fundamental Rights under Article 14 cannot be setup against the decision of the RTA52
Finally in Rupa Ashok Hurra v Ashok Hurra53 a constitutional bench of 5 judges held that no
judicial proceeding could be said to violate any of the Fundamental Rights. Even though this is
the settled law, the observation in Naresh Mirajkar v. State of Maharashtra 54 it is observed that

51 AIR 1962 SC 1621


52 Ujjam Bhai v State of UP, AIR 1962 SC 1621
53 AIR 2002 SC 1771
54 AIR 1967 SC 1
22 | P a g e

while exercising the rule making powers the judiciary is covered by the expression state with
Art.12 but while performing its judicial functions it is not so included.

23 | P a g e

Chapter 5
CONCLUSION
Since 17th century if not earlier, human thinking has been veering round to the theory that man
has certain essential, basic, natural and inalienable rights or freedoms and it is the function of the
State, in order that human liberty may be preserved, human personality developed, and an
effective social and democratic life promoted, to recognize these rights and freedoms and allow
them a free play.
The concept of human rights protects individuals against the excesses of the state. The concept of
human rights presents an attempt to protect the individual from oppression and injustice. In
modern times, it is widely accepted that the right to liberty is the very essence of a free society
and it must be safeguarded at all times. The idea of guaranteeing certain rights is to ensure that a
person may have a minimum guaranteed freedom.
Part III of the Constitution protects substantive as well as procedural rights. Articles 12-35 of the
Constitution pertain to Fundamental Rights of the people. Most of the Fundamental Rights are
claimed against the State and its instrumentalities and not against private bodies. 55 Article 13(2)
bars the state from making any law infringing a Fundamental Right.
According to Article 13(2), the State shall not make any law, which takes away or abridges the
Fundamental Rights; and a law contravening the Fundamental Rights is, to the extent of that
contravention, void. It is the crucial constitutional provision which deals with the postconstitution laws. If any such law violates any Fundamental Right it becomes void ab initio, i.e.,
from its inception. The effect of Article 13(2) thus is that no Fundamental Right can be infringed
by the state either by legislative or administrative action.
The two important concepts used in this provision are: state and law. These concepts thus,
need some elucidation. Fundamental Rights are mostly claimed against the state. Article 12
gives an extended significance to the term state. Article 12 clarifies that the term state
55 Shamdasani v. Central Bank of India, AIR 1952 SC 59.
24 | P a g e

occurring in Article 13(2), or any other provision concerning Fundamental Rights, has an
expansive meaning. The action of the any of the bodies comprised within the term state as
defined in article 12 can be challenged before the courts under Article 32 on the ground of
violating Fundamental Rights.
The most significant expression used in Article 12 is other authorities. This expression is not
defined in the Constitution. The interpretation of the term other authorities in Article 12 had
caused a good deal of difficulty, and judicial opinion has undergone changes over time. It is,
therefore, for the Supreme Court, as the Apex Court, to define this term. It is obvious that wider
the meaning attributed to the term other authorities in Article 12, wider will be the coverage of
the Fundamental Rights, i.e., more and more bodies can be brought within the discipline of
Fundamental Rights. The reason for adopting such broad view is that the Constitution should,
whenever possible, be so construed as to apply to arbitrary application of power against
individuals by centers of power. The emerging principle appears to be that a public corporation
being a creation of the state is subject to the Constitutional limitation as the state itself.
Again there are private, non-State entities which discharge important quasi-governmental or
important public functions, which have repercussions on the life and welfare of the community.
The word State' under Article 12 has been interpreted by the courts as per the changing times .It
has gained wider meaning which ensures that Part-III can be applied to a larger extent. As a
result of judicial interpretation, the State has been held to include statutory bodies such as
insurance corporations, nationalized banks, airline corporations, electricity boards, educational
institutions and societies whose composition and administration are predominantly controlled by
the government. Consequently the reach and extent of protection of fundamental rights has been
widened and greater protection has been afforded especially in the area of employment against
discriminatory practices. Thus, it is hoped that it would continue to extent its width in coming
times.

25 | P a g e

Bibliography
Books:
1.

De, D. J., Interpretation and Enforcement of Fundamental Rights, Eastern Law

House, Calcutta, 2010


2.

Jain, M.P., Indian Constitutional Law, Lexis Nexis, Nagpur, 2012

3.

Pandey, J. N., The Constitutional Law of India, Central Law Agency, Allahabad, 2012

4.

Rai, Kailash, The Constitutional Law of India, Central Law Publication, Allahabad, 2008

5.

Seervai, H.M., Constitutional law of India, Universal Law Publishing, Allahabad, 2006

6.

Singh, M.P., Constitution of India, ed. V.N.Shulka, Eastern Law House, Calcutta, 2010

7.

Singhvi, L. M., Constitution of India, N. D. Thomas, Reuters, 2013

8.

Bakshi, P M, The Constitution Of India, Universal Law Publication, 2010

9.

Basu, D.D, Commentary on the Constitution of India, Lexis Nexis, Nagpur, 2012

Statutes:
1.

Constitution of India, 1950

26 | P a g e