INTRODUCTION
The Article 12 is about the State. In the applications of the provisions of Fundamental Rights for Indian Citizens, the term ‘State’ has been used in a wide concept. To provide clarity to the term, ARTICLE 12 of the Indian Constitution defines it.
Part III of the Indian Constitution & Article 12
• Part III of the Indian Constitution deals with Fundamental Rights. Since Fundamental Rights provide for the security of citizens’ sets of rights in relation with speech, expression, religion, against exploitation, education, language, culture, and constitutional remedies; the term ‘State’ has been used in a wider context to include all such agencies, actions of whose can challenged in the Supreme Court if they violate the any of these Fundamental Rights. And that definition is given in ARTICLE 12 of the Indian Constitution.
• Most of the Fundamental Rights are claimed against the State and it's instrumentalities and not against private bodies. Fundamental Rights are claimed mostly against the "State". ARTICLE 12 gives an extended significance to the term ''State''.
• According to ARTICLE 12, the term "STATE " includes ___
(i) the Government and Parliament of India;
(ii) the Government and the Legislature of a State;
(iii) all local authorities; and
(iv) other authorities within the territory of India, or under the control of the Central Government .
• The actions of any of the bodies comprised within the term "State" as defined in Article 12 can be challenged before the courts under ARTICLE 13(2) 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. 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 the Fundamental Rights.
• Judiciary, Executive and Legislature are integral parts of the "State" within the meaning of ARTICLE 12 of the Constitution.
1. LOCAL AUTHORITIES:
Before understanding what a local authority is, it is important to define Authorities. According to Webster's Dictionary; "Authority" means a person or body exercising power to command. When read under ARTICLE 12, the word Authority means the power to make laws (or orders, regulations, bye-laws, notification etc.) which have the force of law. It also includes the power to enforce those laws
• Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
• "Local Authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund."
•The term Local authority includes the following:
1. Local government: According to Entry 5 of the List II of VII Schedule 'local government' includes a municipal corporation, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
2. Village Panchayat:
√ CASE LAW: Ajit Singh v. State of Punjab
• It was held that within the meaning of the term local authority, village panchayat is also included.
Test to determine Local Authorities:
√ CASE LAW: Mohammad Yasin v. Town Area Committee
• the Supreme Court held that to be characterized as a 'local authority' the authority concerned must;
1. Have a separate legal existence as a corporate body.
2. Not be a mere government agency but must be legally an independent entity.
3. Function in a defined area.
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area.
5. Enjoy a certain degree of autonomy (complete or partial).
6. Be entrusted by statute with such Governmental functions and duties as are usually entrusted to locally (like health, education, water, town planning, markets, transportation, etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or fees.
2. OTHER AUTHORITIES:
• It refers to authorities other than those of local self- government, who have the power to make rules, regulations, etc. having the force of law. “INSTRUMENTALITY” and “AGENCY” are the two terms, which to some extent overlap in their meaning. The basic and essential distinction between an “INSTRUMENTALITY or AGENCY” of the State and “other authorities” has to be borne in mind. An ‘Authority’ must be authority sui juris within the meaning of the expression “other authorities” under ARTICLE 12. A juridical entity, though an authority may also ratify the list of being an instrumentality or agency of the state in which event such authority may be held to be an instrumentality or agency of State, but not vice versa.
√ CASE LAW : Rajasthan State Electricity Board V. Mohanlal
• wherein it was decided that "other authorities" is wide enough to include within it, every authority created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions and functioning within the territory of India or under the control of the Government of India.”
√ CASE LAW : Sukhdev V. Bhagatram
• The primary question lying before the court, in this case, was whether ONGC (Oil and Natural Gas Corporation), IFC (International Finance Corporation) and LIC (Life Insurance Corporation of India) created by an act came under the purview of "state" under ARTICLE 12. The court held all the three to be state following the decision given in Rajasthan Electricity Board vs Mohan Lal. These three bodies were held to be state as they were created by a statute and had the statutory power to make binding rules and regulations, and were subject to pervasive governmental control. Statutory corporations are agencies or instrumentalities of the state for carrying on trade or business which on the other hand would have been carried out by the state departments. Hence, it must be seen whether a body is acting as an agency or instrumentality of the state.
√ CASE LAW : Ajay Hasia V. Khalid Mujib
• A registered society was held to be an 'authority' for the purposes of ARTICLE 12. This Case has initiated a new judicial trend, viz., that of expanding the significance of the term "authority".
• In this Case, The Supreme Court laid down the following TESTS to adjudge whether a body is an Instrumentality of the Government or not:
(1) If the entire share capital of the body is held by the Government, it goes a long way towards indicating that the body is an Instrumentality of the Government.
(2) Where the financial assistance given by the Government is so large as to meet almost entire expenditure of the body, it may indicate that the body is impregnated with Governmental character.
(3) It is a relevant factor if the body enjoys monopoly status which is conferred or protected by the State.
(4) Existence of deep and pervasive State control may afford an indication that the body is a state Instrumentality.
(5) If the functions performed by the body are of public importance and closely related to Governmental functions, it is a relevant factor to treat the body as an Instrumentality of the Government.
CONCLUSION:
• The definition of State under ARTICLE 12 of the Constitution does not explicitly mention the Judiciary. Hence, a significant amount of controversy surrounds its status vis-a-vis Part III of the Constitution. Bringing the Judiciary within the scope of ARTICLE 12 would mean that it is deemed capable of acting in contravention of Fundamental Rights. It is well established that in its non-judicial functions, the Judiciary does come within the meaning of State. However, challenging a judicial decision which has achieved finality, under the writ jurisdiction of superior courts on the basis of violation of fundamental rights, remains open to debate.
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