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THE STATE[1]

Table of Contents

QUESTION BANK.

Q.1. Against whom are fundamental rights available? Explain the meaning of “other authority”.

Q.2. Explain the meaning of the term “State”?

SHORT NOTES.

‘Other authority.
‘Local authority.

SYNOPSIS

Fundamental rights are available against the ‘State’:-

II). Definition of State (Art. 12)-

a) The Government and Parliament of India-
b) The Government and the Legislature of each State.
c) ‘Local authority-
d) ‘Other authorities”-

I) Fundamental rights are available against the ‘State’[2]:-

Protection of rights and liberties against the arbitrary use of power by the government is necessary. Part III from Art. 12 to 35 consists of fundamental rights. The fundamental rights are limitations upon all powers of the government. Thus, fundamental rights are available to the individual against the State.

The fundamental rights of individuals are the area within which the State is not allowed to interfere. Fundamental rights are not available to private individuals.[3].

Since fundamental rights are available against the arbitrary use of the State’s power, studying the meaning and concept of “State” as used in part III of the Constitution becomes necessary.

II) Definition of “State” (Art. 12)-

Unless the context is otherwise required, the term ‘State’ includes the following-

The Government and Parliament of India, i.e. Executive and Legislature of a Union[4].
The Government and the Legislature of each State, i.e. Executive and Legislature of States[5].
All local and other authorities within the territory of India[6].
All local or other authorities are controlled by the Government of India.

The term ‘State’ thus includes the Union and the State’s executives and legislatures. Thus, the actions of the above-mentioned bodies, if they violate fundamental rights, can be challenged in court.

We will discuss different concepts used in defining the term ‘State’.

a) The Government and Parliament of India-

The government and parliament of India are the executive and legislative branches of the Union. (These terms are discussed in detail at appropriate places in subsequent chapters in this note).

b) The Government and the Legislature of each State.

Each state’s government and legislature are the executive and legislature of each state in India.

c) ‘Local authority[7]’-

The term ‘authority’ denotes a person or body of persons exercising power to command. In the context of Part III of the Constitution, the term ‘authority’ denotes the power to make laws, orders, regulations, etc. and their execution.

The term ‘Local authority’ denotes local self-government. S. 3 (31) of the General Clauses Act. 1897 defines the term ‘Local Authority’ as a “Municipal Committee, District Board, 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”.

Thus, Village Panchayats, Municipal Councils, Corporations, Zilla-Parishads, and Panchayat Samitis are all ‘local authorities, i.e. States within the meaning of Art. 12.

d) ‘Other authorities[8]”-

In the University of Madras v. Shantha Bai[9]

The term ‘other authorities’ under Art. 12 means “authorities exercising governmental or sovereign functions”. To be called an “other authority”, the authority must either be an instrumentality or agency of the government.

The Supreme Court held the Sales Tax Officer as other authority within the meaning of Art.12 [Ujjambai V. State of UP]. The Court held that he carries on governmental functions.

In Rajasthan State Electricity Board, V. Mohan Lal[10]

The Supreme Court observed that the expression “other authorities” in Art.12 was wide enough to include within it every authority created by a statute and functions within India’s territory or under the government of India’s control. It further held that even statutory authority having some commercial functions like the State Electricity Board is also “other authority under Art.12.

Similarly, The Supreme Court held that the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation are authorities under Art.12. Therefore, fundamental rights are available against them all.

In R. D. Shetty Vs. International Airport Authority[11]

The Supreme Court held that if a body or authority is found to be an agency or instrumentality of the government, it is a State within the meaning of Art.12, falling under the expression “other authorities”. The Court further laid down the test to decide whether any authority falls under the expression “other authority” under Art.12. viz.-

(i) If the entire share capital of the corporation is held by the Government.

(ii) Existence of deep and pervasive state control.

(iii) If a corporation enjoys monopoly status, which is State conferred or protected.

(iv) If the function of the Corporation is of public importance and closely related to governmental functions.

(v) If a department of government is transferred to a corporation.

However, The court further suggested that these tests are not conclusive but illustrative. Moreover, the expression ‘other authorities’ coming under the concept of State is related to parts III and IV of the Constitution.

Thus, an employee of a Statutory Corporation can claim the protection of fundamental rights but cannot seek the safeguards of civil servants[12].

Thus, the expression ‘other authority’ is not confined only to statutory corporations alone but may include a governmental company, a registered society, or bodies which have some nexus with the government[13]. Even courts were held as States under the expression ‘other authority’[14].

Thus, Government Companies, Where-housing corporations, Societies registered under the Societies Registration Act, 1898 and 1860, the Indian Council of Agricultural Research, Central Inland Water Transport Corporation, and the Council of Scientific and Industrial Research are held to be falling under the expression ‘other authority’, under Art. 12 and therefore State.

Thus, fundamental rights are available against the Executive and Legislature of the Union and State and against all ‘local and other authorities’ as discussed above.

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[1] राष्ट्र/देश

[2] मुलभूत अधिकार हे राष्ट्रच्य विरुध्द आहेत.

[3] In P. D. Shmdasani V. Central Bank of India AIR 1952 SC 59.

[4] केंद्र सरकार (प्रषासन) व संसद (कायदे मंडळ)

[5] केंद्र सरकार (प्रषासन) व संसद (कायदे मंडळ)

[6] सर्व स्थानीक स्वराज्यसंस्था व ईतर अधिकारी/संस्था इ.

[7] स्थानीक स्वराज्यसंस्था

[8] ईतर अधिकारी/संस्था इ.

[9] AIR 1954 Mad 67

Sukhadev Singh V. Bhagatrm AIR 1975 SC 1331

[10] (AIR 1967 SC1621)

[11] (AIR 1979 SC1628)

[12] Steel Authority of India V. Shri Ambica Mills Ltd AIR 1998 SC 418.

[13] Sam Prakash V. Union of India AIR 1981 SC 212.

[14] A. R. Antule v. R. S. Nayak AIR 1988 SC 153