ARTICLE 12 OF THE INDIAN CONSTITUTION
INTRODUCTION
As the fundamental rights apply only against the state, as has been held by Patanjali Shastri, J. in State of West Bengal v. Subodh Gopal Bose (AIR 1959 SC 92), it becomes necessary to define ‘state’. ‘State’, in a parliamentary democracy like ours, would mean the elected representatives of the country and the various organs of the government. But the concept of state has expanded as the state has transcended to the level of a “welfare state” from the earlier concept of “police state”.
Article 12 of the constitution defines state for the purposes of fundamental rights and the courts have interpreted ‘other authorities’ in Article 12 so as to take care of the dynamic nature of the state.
As per Article 12, ‘state’ includes:-
1. The government and parliament of India i.e. executive and legislature of the Union. 2. The government and legislature of states i.e. executive and legislature of the states. 3. All local authorities within Indian Territory.
4. All other authorities within Indian Territory.
5. All other authorities under the control of Government of India.
It is pertinent to observe that Article 12 uses the word ‘includes’ and not ‘means’. The two are quite different in their implications:
∙ Firstly, ‘means’ is an exhaustive definition. The reason being that the legislature wants to be specific that is nothing more can be included.
∙ Secondly, ‘includes’ is not an exhaustive definition. The reason being that the legislature in view of the dynamism in society, does not want to restrict the categories and leaves room for future inclusions.
However, even if a definition is an inclusive definition it cannot include ‘anything’. The purpose and nature of the provisions have to be interpreted and only the related matters have to be included.
As regards the first three categories, Article 12 is quite self-explanatory. State includes both legislature and executive actions i.e. the administrative orders.
∙ Thus the Income Tax Department, a part of the executive, has been held to be state in Bidi Supply Co. vs. Union of India, (AIR 1956 SC 479).
Local authorities include municipalities, District Boards, panchayats, improvement trusts, poverty trusts and Mining settlement boards.
∙ In Mohd. Yasin vs. Town Area Committee (1952) the Supreme Court held that the bye law made by a municipal committee charging a press fee on the wholesale dealer was an order by a ‘state’ authority and contravene Article 19 (1) (g).
∙ In Rashid Ahmed vs. Municipal Board, Kaivana (1950) also a municipal Board was held to be a local authority.
OTHER AUTHORITIES
It is with respect to the interpretation of ‘other’ authorities in Article 12 that problem arise. The expression ‘other authorities’ is a wide category and is inclusive in nature. Therefore, it has to be interpreted widely. But there has to be limits to such inclusions. The courts have tried to revolve a principle with respect to the same.
The principle with respect to ‘other authorities’ as it evolved through the following cases:
1. University of Madras v. Santa Bai (1957, Madras High Court)
2. Devdas v. Karnataka Engineering College (1964, Karnataka High Court) 3. Krishna Gopal v. Punjab University (AIR 1966 Punjab High Court)
In all these cases, the High Courts were of the view that the authorities concerned were not ‘other authorities’ as ‘other authorities’ in Article 12 is preceded by three other categories and hence as per the principle of egusdem generic it should derive its colour from the other three. And as the first three categories have an inherent quality that they enjoy sovereignty, ‘other authorities’
should also enjoy sovereign power of the state. In the above cases, those authorities did not enjoy sovereign power and hence they were not ‘state’.
∙ In Ujjambai vs. State of Uttar Pradesh (1962 SC), the Supreme Court rejected the above restrictive approach and held that the rule of ejusdem generic requires that there should be a common genus serving through all the categories. The first three categories in Article were not of a common genus nor could they be placed in one single category on any national basis.
∙ In Electricity Board, Rajasthan vs. Mohan Lal (AIR 1967 SC 1857), the Supreme Court rejected the ejusdem genus argument. The first three categories are not of similar nature and are also not specific, particularly the category of local.
The Supreme Court contemplated that any kind of body or authority that are created by law or by the constitution are vested with the power or authority to affect the rights of others are ‘other authorities’. The court also observed that the constitution itself under Articles 298 and 299 contemplates the government to run business. As a result it may behave like any other business organisation in some respect, but not as a whole.
∙ Following the above decision, Patna University was held to be ‘state’ in Umesh vs. V. N. Singh (AIR 1968 Patna 3).
However, the Rajasthan Electricity Board Case left doubts as to whether there is a distraction between ‘by the law’ and ‘under the law’.
∙ This doubt was further classified in Sukhdeo Singh v. Bhagat Ram (AIR 1975 SC 1331) where in the LIC, ONGC, Indian Finance Corporation created by special statutes (Corporation Act) were involved. The employees filed a writ under Article 32 in the Supreme Court on the ground of violation of their fundamental rights under Article 16. The defendants argued that as the bodies were created for commercial purposes, they were not
‘state’. Ray, C. J., speaking for the majority (4:1) made a distinction between bodies created by a statute and those created under a statute. Only the first type is ‘state’. ∙
∙ In R. D. Shetty vs. International Airport Authority (AIR 1979 SC 1628) the question of grant of contracts to caterers was involved. One of the caterers had filed a suit under Article 32 as his tender was rejected. In this case also, the question of ‘under’ did not actually arise as here also the body was created ‘by’ the law.
Bhagwati, J. laid down two propositions:-
1. An authority created by the law is state
2. An agency created by a law or under a law, is a state
Thus, Bhagwati, J. did not go into the functional aspect, rather he laid down that the agency aspect was the deciding factor.
This approach was confined in two subsequent cases:-
1) Som Prakash Rekhi vs. Union of India (AIR 1981 SC 212):
Therein basing his judgment on the criteria set in R. D. Shetty vs. International Airport Authority (AIR 1979 SC 1628), Krishna lyer, J. speaking for the majority, held that the Bharat Petroleum Corporation registered under the Corporation Act, is an instrumentality of the Central Government and hence ‘state’.
2) Ajay Hasia vs. Khalid Mujib Sehravardi (AIR 1981 SC 487):
Bhagwati, J. reiterated his earlier view: “The enquiry has not to be as to how but as to why the juristic person has been brought into existence.” The determining test is not whether it comes into existence by or under a statute but as to whether it is an agency or instrumentality of the Government.
Accordingly, it was held that the Regional Engineering College, Srinagar, established, administered and managed by a society registered under the J & K Registration of Societies Act, was a ‘state’.
TEST TO ASCERTAIN WHETHER AN AUTHORITY IS A STATE
An authority is a state in the following cases:
1. Where entire share capital held by government.
2. A great degree of financial assistance is provided by government.
3. Monopoly status compared by state or protected by government.
4. Deep and pervasive state control.
5. Fundamental rights are of public importance and related to government functions. 6. Where a government department is transferred to corporation.
∙ In M. C. Mehta v. Union of India (SC 1987), an important question raised was whether a private corporation fell within the ambit of Article 12. The question was not finally decided but Bhagwati, J. advanced strong arguments for including non-government rules within Article 12, if they satisfy the test of being agency of the government.
∙ In Chandra Mohan Khanna v. NCERT [(1991) 4 SCC 5781], the tests of Bhagwati, J. were reiterated but it was observed that these tests are not exhaustive. Article 12 cannot be stretched so as to bring each and every autonomous body which has some nexus with the government under the sweep of Article 12. In the modern concept of welfare state, independent institutions, corporations and agency are generally subjected to State control. So, NCERT is ‘not state’.
WHETHER FUNDAMENTAL RIGHTS AVAILABLE AGAINST PRIVATE PERSONS
The purpose of the constitution is to achieve an ‘optimal state’ as a means and not an end to achieving the larger ends of social well-being and higher values. And therefore there has to be a balance between this optional state and the higher objectives envisaged to be achieved through this State. In this process, as Marx rightly said, some groups are bound to have an upper hand, but at
the same time it is equally important that all groups and individuals have an equal opportunity. This is achieved by the fundamental rights.
The state can guarantee the right of the individual vis-a-vis other individuals in order to forge a social order. The question is what of the rights of the individual against the state itself? This is guarantee by the fundamental rights. The fundamental rights are a mandate to the state. There are certain inherent rights in the individuals which cannot be taken away by it in the process of achievement of its larger goals.
Seen in the above light, it might appear to be an individual versus state conflict however, one has to look into the very basis of the concept of fundamental rights. The social contract theory of Hobbes said: “People in a kind of social contract with the state, have parted away with their rights and have vested them in the State which in turn is to protect these rights”. Locke and Rousseau
went a step further and modified it by adding that in the process the people have retained some of their inalienable rights. These rights are what later came to be called the fundamental rights.
The fundamental rights are no doubt a guarantee against the state but at the same time the state helps in realization of these guarantees. It also takes positive steps as per the directions under the directive principles of state policy.
As with respect to private individuals, there are other remedies under the ordinary law. It is against the right of the state that the individuals need constitutional protection.
∙ In P. D. Shamdasani v. Central Bank of India Ltd. (AIR 1952 SC 59) the petitioner, an individual sought protection of the Supreme Court under Article 32, on the ground that his right to property under Article 19 (1) (1) and 31 were being infringed by the action of another private person, the Central Bank of India Ltd. The petition was dismissed by the Supreme Court which held that violations of fundamental rights by private individuals are not within the purview of Article 32.
∙ In Vidya Verma v. Shiv Narayan (AIR1956 SC 108) writ of habeas corpus was refused under Article 32 against a private person. Such a writ against a private person could be filed under Article 226 where it was held that violation of the right of personal liberty by a private individual is not within the purview of Article 21. Therefore, a person whose right to personal liberty is infringed by a private individual must seek his remedy under the
ordinary law and not under Article 21. Also, writ of habeas corpus was refused under Article 32 against a private person.
∙ In State of West Bengal vs. Subodh Gopal Bose (AIR 1954 SC 92) the Supreme Court observed that freedoms enumerated in Article 19 (1) are those great and basic rights which are recognised as the natural rights inherent in the status of a citizen. Further Patanjali Shastri, J. 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”.
It is to be noted that, during the recent years the Supreme Court has accepted the writ petition with regard to the violation of fundamental rights given in Part III of the Constitution. It emphasized upon the rights guaranteed to the citizens under the constitution, rather going into the questions as to whether it is violated by the private persons or the State or its instrumentality as such.
