Comment on Art 12 of Constitution of India.
The constitution of India has defined the word STATE for the purpose of Part –III and Part IV.
In STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC observed that the object of Part III is to provide protection to the rights and freedoms guaranteed under this part by the invasion of State.
Part III and Part IV carry a theme of Human Rights, Dignity of Individual and also of the unity and dignity of the nation.
These parts respectively as a Negative Obligation of the State and not to Interfere with the Liberty of the Individual, and Positive Obligation of the State to take steps for the welfare of the Individual.
Sate under Art 12 of the constitution has Four Components:
- 1. 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 State.
- 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.
- All Local Authorities and;
It means, Municipal boards Panchayats, Body of Port Commissioner, and other legally entitled to or entrusted by the government.
- Other Authorities within the territory of India or under the control of Government of India.
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 letter two categories, particularly the last are not so specific and require some explanation. To give a wider dimension to FR the Judiciary has interpreted “State” in different context at different time.
Principle of Ejusdem Generis:
In University of Madras v/s Santa Bai ,the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities which perform governmental or sovereign functions.
In Ujjam Bai v/s Union of India the Supreme Court rejected the principle of ejusdem generis .It observed that there is no common genus between the authorities mentioned in Article 12. And by giving the reference of Art 19 (1) (g), and Art 298 which contemplated engagement of state in the performance of commercial activity, and Art 46 promotion of education or economic interest.
In Rajasthan State Electricity Board v/s Mohan Lals it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions .It should-
( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;
In R.D.Shetty v/s International Airport Authority, the Court laid down five tests to be an other authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.
( f ) Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.
( g ) Clearance of five tests
In Union of India v/s R.C.Jain , to be a local authority, an authority must fulfill the following tests-
( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.
In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that when rule making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned in Article 12, it is not State, therefore if the Judge or magistrates are not note State while there are functioning as a Judiciary. But if they are also functioning as Administrator then they will be treated as State within the meaning of Art 12. The Chief Justice of High court shall have functions in dual role :
- Chief Justice of High Court
- Chief Administrative of High Court.
If any citizen aggrieved by the act of the Chief Justice , while he was function as chief administrator of the high court then that chief justice has no remedy and he shall be treated as a State under the Art 12.
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. We hope that it would continue to extent its width in coming times.