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Fundamental Rights Article 12 Final

In this part, unless the context otherwise requires, the State includes the Government 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.<br>

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Fundamental Rights Article 12 Final

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  1. PART III FUNDAMENTAL RIGHTS : ARTICLE 12 BE N BY IAS beandbyias.com By – Jasbir Singh Bajaj I.A.S. (V.R.S)

  2. ARTICLE 12: DEFINITION • In this part, unless the context otherwise requires, the State includes the Government 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. • Montevideo Convention on the Rights and Duties of States, 1933 :- • A permanent population; • Defined territory; • Government; and • Capacity to enter into relations with other States. BE N BY IAS beandbyias.com

  3. MEANING OF EXPRESSION “IN THIS PART”: • Only for the purpose of application of the provisions contained in Part III of the Constitution of India. • Central Ware Housing Corporation Sri Ganganagar v. State of Rajasthan, AIR 1995 – the definition of the ‘State’ given under Article 12, is only applicable for the purpose of Part III of the Constitution and therefore, the instrumentalities, or agencies of the State are also subject to all constitutional limitations enshrined in Part III of the Constitution. BE N BY IAS beandbyias.com

  4. MEANING OF “UNLESS THE CONTEXT OTHERWISE REQUIRES”: • May exclude the meaning given by Article 12 to the word “State”. • For instance, the expression ‘security of the State’ in Article 19(2) refers not to the persons carrying on the administration of the State but to the State as an organized political society or the established order. BE N BY IAS beandbyias.com

  5. MEANING OF “INCLUDES”: • Definition is not exhaustive • There might be other instrumentalities of State action within the sweep of the definition. BE N BY IAS beandbyias.com

  6. MEANING AND CONCEPT OF STATE: • Enforceability of the Fundamental Rights in Part-III, the authority against whom the right is to be enforced has to qualify to be “State” by falling under one or more of the above-mentioned essential ingredients of the definition as stipulated in this Article. • John Locke - The purpose of state is “common good or good of mankind • A writ under Article 226 will still be available in High Courts under Article 226 if the relief claimed is for the infringement of any other legal right on non-constitutional grounds or on ground of contravention of some provision of the Constitution outside Part III, e.g., where such body has a public duty to perform or where its acts are supported by the State or public officials [Kartik v. W.B.S.I.C., AIR 1967 Cal 231 (234)] for which adherence to Article 12 is not necessary. BE N BY IAS beandbyias.com

  7. KEY PROVISIONS OF ARTICLE 12: • Government and Parliament of India: • All ministries and departments performing the executive functions of the government. • Parliament includes both the houses; Lok Sabha and Rajya Sabha. • A.R. Antulay v. R.S. Nayak, AIR 1988, the SC held that Expression State as defined in Article 12 can also include Judiciary also. • Government and the Legislature of each of the States: • All ministries and departments performing the executive functions of the State Government. • State Government includes Executives and Legislature of the State. BE N BY IAS beandbyias.com

  8. KEY PROVISIONS OF ARTICLE 12: • Local Authorities within the territory of India: • Under Section 3(31) of the General Clauses Act X of 1897 “Local authority” shall mean a Municipal Committee, District Board, Body of Port Commissioner or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund. • Municipal Committee, Municipal Corporation, Cantonment Board, Municipal Council, a Panchayat, a Port Trust. Local bodies are not Government but are subordinate branches of Government activity. BE N BY IAS beandbyias.com

  9. KEY PROVISIONS OF ARTICLE 12: • Other Authorities: Not specified • Ajay Hasia v. Khalid Mujib (AIR 1981 SC 487) ‘Instrumentality’ and ‘Agency’ of the Government to determine the real nature and character of the authority and by applying these tests. BE N BY IAS beandbyias.com

  10. KEY PROVISIONS OF ARTICLE 12: • Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 , Justice P.N Bhagwati gave 5 Point test:- • Financial resources of the State. • Deep and pervasive control of the State. • The functional character being Governmental, functions have public importance or are of a governmental character. • A Department of Government transferred to a Corporation. • Enjoys “monopoly status” which is State conferred or is protected by it. • The test is only illustrative and not conclusive BE N BY IAS beandbyias.com

  11. ANALYSING ‘AGENCY, OTHER AUTHORITY AND INSTRUMENTALITY’ WITHIN THE MEANING OF ARTICLE 12: • Whether an Agency is State for the purpose of Article 12: • “Agency”: A consensual relationship created by contract or by law where one party, the Principal, grants authority for another party, the Agent, to act on behalf of and under the control of the Principal to deal with a third party. • “Instrumentality” includes ‘means’, which “agency” does not in its meaning. • Any society registered under Society Registration Act of 1898 is an “agency” or “instrumentality of the state” and hence a “State” within the ambit of Article 12. BE N BY IAS beandbyias.com

  12. ANALYSING ‘AGENCY, OTHER AUTHORITY AND INSTRUMENTALITY’ WITHIN THE MEANING OF ARTICLE 12: • Expenses of Society are entirely provided by the Central Government. • The rules made by the society require prior approval of the State and is completely controlled by the Government. • The government has the power to appoint and remove the members of the society. • An Organization performing the essence of government or in support of a government or is discharging duty of State can be considered as “State”. BE N BY IAS beandbyias.com

  13. ANALYSING ‘AGENCY, OTHER AUTHORITY AND INSTRUMENTALITY’ WITHIN THE MEANING OF ARTICLE 12: • Other Authorities: • ‘Other authorities’ refers to authorities other than those of local self-Government, who have the power to make rules, regulations, etc., having the force of a law. • “Local Government” or “Local-self Government’ (or Panchayat Raj Institutions): • Zilla panchayats • Mandal or taluka panchayats • Gram panchayats BE N BY IAS beandbyias.com

  14. ANALYSING ‘AGENCY, OTHER AUTHORITY AND INSTRUMENTALITY’ WITHIN THE MEANING OF ARTICLE 12: • It could be observed that “other authorities” could be authorities of like nature i.e. Ejusdem Generis. [University of Madras v. Shanta Bai (1954). • Doctrine was rejected by Supreme Court in the case of Ujjam Bai v. State of U.P. (1962) that “Ejusdem Generis rule could not be restored in interpreting this expression”. • In Rajasthan State Electricity Board v. Mohanlal AIR 1967 SC 1857: (1967) 3 SCR 377; State electricity board, set up by a statute, having some commercial functions to discharge, would be an ‘authority’ under Article 12. BE N BY IAS beandbyias.com

  15. ANALYSING ‘AGENCY, OTHER AUTHORITY AND INSTRUMENTALITY’ WITHIN THE MEANING OF ARTICLE 12: • Sukhdev Singh v. Bhagat Ram AIR 1967 SC 1857 • Electricity Board Rajasthan’s case by 4:1 majority held that Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation are authorities within the meaning of Article 12 of the Constitution and therefore they are ‘State’. BE N BY IAS beandbyias.com

  16. DOCTRINE OF INSTRUMENTALITY: • Ramana Dayaram Shetty v. International Airport Authority of India AIR 1979 SC 1628; held that if a body is an agency or instrumentality of the Government it may be an authority in Article 12. • Tests are as follows: • If the entire share capital of the Corporation is held by government, deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality. • Whether the Corporation enjoys monopoly status which is State conferred or State protected. • If the functions of the Corporation are of public importance and closely related to governmental functions. • If a Department of Government is transferred to a Corporation. BE N BY IAS beandbyias.com

  17. DOCTRINE OF INSTRUMENTALITY: • These tests are not conclusive but illustrative only and will have to be used with care and caution. • Pradeep Kumar Biswas v. Union of India, 2002 5 SCC 111 :- • “When the body is- • Financially; • Functionally; and • Administratively • Dominated by or under the control of the government and such control is particular to the body and its pervasive, then it will be a “State” within the Article 12.” BE N BY IAS beandbyias.com

  18. SOME OF THE “OTHER AUTHORITIES” AS HELD BY COURTS BY APPLYING THE ABOVE-MENTIONED TESTS: • NCERT has been held to be outside the scope of Article 12. The court opined that NCERT is a society registered under the Societies Registration Act. It is largely an autonomous body; its activities are not wholly related to governmental functions; governmental control is confined mostly to ensuring that its funds are properly utilized; its funding is not entirely from government sources Chandra Mohan Khanna v. NCERT AIR 1992 SC 76. • Railway Board is a ‘State’.[Rly. Board, Government of India v. Observer Publication (P) Ltd., AIR 1972 SC 1792] BE N BY IAS beandbyias.com

  19. SOME OF THE “OTHER AUTHORITIES” AS HELD BY COURTS BY APPLYING THE ABOVE-MENTIONED TESTS: • ICAR is State. [S.M. Ilyas v. ICAR, AIR 1993 SC 384] • State Financial Corporations constituted under State Financial Corporation Act are instrumentality of the state. [UP Financial Corporation v. Gem Capt. (India) Pvt. Ltd., 1993 SC 1435] • Delhi Development Authority. [DDA Builders Association v. DDA, AIR 1996 Del 364] • Regional Rural Banks established under RRB Act are covered by definition of State. [M.K. Aggarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286] BE N BY IAS beandbyias.com

  20. SOME OF THE “OTHER AUTHORITIES” AS HELD BY COURTS BY APPLYING THE ABOVE-MENTIONED TESTS: • Nationalised Banks are other authorities. [Hyderabad Commercials v. Indian Bank, AIR 1991 SC 247] • High Court (on administrative side). [State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296] • Delhi Stock Exchange is State. [K.C. Sharma v. Delhi Stock Exchange, (2005) 4 SCC 4] • Coffee Board is State. [Consolidated Coffee Ltd. v. Coffee Board, AIR 1980 SC 1468] • Cooperative Society registered under the State Cooperative Societies Act can be treated as State if any order passed by them is statutory in nature. [Administrator, LouchSehkariKaryaVikarya Samity Ltd. v. Sarmam Singh, (1997) 11 SCC 144] BE N BY IAS beandbyias.com

  21. SOME IMPORTANT ENTITIES NOT HELD AS ‘OTHER AUTHORITIES’ ARE AS FOLLOWS: • Board of Control for Cricket in India (BCCI) is not State , as a registered society but is not financially, functionally or administratively dominated by Government nor it is under control of Government. [Cricket Association of Bihar v. BCCI, AIR 2015 SC 3194] • Shri Mata Vishno Devi Shrine Board was held to be not State as being not a controlled or owned Corporation by the Government. [Bhuri Nath v. State of Jammu and Kashmir, AIR 1997 SC 1711] • A private educational institution does not become an instrumentality of the State because of the mere fact that it has received recognition or affiliation from the State, but it will be so if it discharges a public duty, viz., imparting education which is a purpose of the State. [Unnikrishnan v. State of AP, AIR 1993 SC 2178] BE N BY IAS beandbyias.com

  22. SOME IMPORTANT ENTITIES NOT HELD AS ‘OTHER AUTHORITIES’ ARE AS FOLLOWS: • A company (Government Company) even if it is created under section 617 of the Companies Act, 1956 ‘the Bokaro Steel Ltd.’ Cannot be held to be State unless it acts as an agency of the Government. [Verma v. Bokaro Steel Ltd., AIR 1971 Pat 127] • Private unaided minority school is not State as over them the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution. [Satimbla Sharma v. St. Paul’s Senior Secondary School, AIR 2011 SC 2926] • Mere dealing in a subject by the state, or the monopoly of the State in a particular field would not render an enterprise sovereign in nature. [Balmer Lawrie & Co. Ltd. v. ParthaSarthy Sen Roy, (2013) 8 SCC 345] BE N BY IAS beandbyias.com

  23. WHETHER JUDICIARY AND QUASI-JUDICIAL TRIBUNALS ARE STATE: • Administrative side and the quasi-legislative (rule-making) side of the Judiciary are “State” within the meaning of Article 12 of the Constitution of India. • The Judicial side of the Judiciary is not “State”. • Budhan Choudhary v. State of Bihar, AIR 1955 SCC 191, there should be a ‘wilful and purposeful discrimination’ which would essentially depend on the facts and circumstances of the case. • Prabhani Co-operative Society v. R.T.A., AIR 1960 SC 801, the Supreme Court of India speaking through Justice Sarkar, was of the opinion that no complaint of a breach of fundamental right lay against a quasi-judicial body. BE N BY IAS beandbyias.com

  24. WHETHER JUDICIARY AND QUASI-JUDICIAL TRIBUNALS ARE STATE: • P.C. Garg v. Excise Commissioner, AIR 1963 SC 996, the remedy under Article 32 can be sought. The word ‘State’ must include ‘courts’ else it will enable the courts to make laws in contravention of Fundamental Rights. • Naresh Shridhar Mirajkar v. State of Maharashtra (1973) 4 SCC 225, it was held that even if the Court is State, a writ under Article 32 cannot be issued to High Court of competent jurisdiction against its Judicial Order because such order cannot be said to violate the Fundamental Rights. • A.R. Antulay v. R.S. Nayak, 1988 SCC 602, the Supreme Court held that Judiciary could not pass an order or issue a direction which would be violative of Fundamental Rights. BE N BY IAS beandbyias.com

  25. WHETHER JUDICIARY AND QUASI-JUDICIAL TRIBUNALS ARE STATE: • Sitaram v. Union of India, 1990 3 SCC 223, the Supreme Court held that “Any arbitrary action, whether in the nature of a Legislative or Administrative or Quasi-Judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution.” • Common Cause v. Union of India, (2015) 7 SCC 1: AIR 2015 SC 2286: • “Part IV of the Constitution is as much a guiding light for the Judicial organ of the State as the Executive and the Legislative arms, all three being integral parts of the “State” within the meaning of Article 12 of the Constitution.” BE N BY IAS beandbyias.com

  26. WHETHER THE STATE ITSELF CAN CLAIM OR ENFORCE A FUNDAMENTAL RIGHT • State of West Bengal v. Union of India, 1964 1 SCR 371: Under the Indian Constitution, Fundamental Rights may be claimed not only by individuals and corporations but sometimes also by the State. BE N BY IAS beandbyias.com

  27. RATIONALE BEHIND FUNDAMENTAL RIGHTS AGAINST STATE: • If the State has absolute power to cut down those liberties of an individual, it would be tyranny. Individuals need constitutional protection against the state. • Fundamental Rights are against the State for the protection of individual. BE N BY IAS beandbyias.com

  28. FUNDAMENTAL RIGHTS AGAINST STATE AND INDIVIDUALS: • Fundamental rights are binding upon not only the State and agencies of State but also upon individuals/organizations. • If untouchability or any sort of discrimination is practiced by any individual then that individual indulging in such practices is punishable under the law of the land. • Even the act of any individual may become an act of the State if it is enforced or aided by any of the authorities mentioned above. • Fundamental Rights are also available against private individuals like Article 15(2) [Equality with regard to access to and use of places of public resort], Article 17 [Prohibition of traffic in human beings], Article 18(3)-(4) [Prohibition of acceptance of foreign title], Article 23 [Prohibition of traffic in human beings] and Article 24 [Prohibition of employment of children in hazardous employment]. BE N BY IAS beandbyias.com

  29. PREVIOUS YEARS QUESTIONS Critically evaluate the changing dimensions of the concept of ’State’ under Article 12 of the Constitution of India.[2018 1(c)] Given the contemporary economic, political and social realities, critically evaluate the judicial framework developed to determine whether an agency/body is ‘State’ for the purpose of Article 12. Is the test currently too narrow? Justify your answer.[2015 1(a)] Write short notes on Meaning of the term ‘Other Authorities’ under Article 12 of the Constitution. The concept of instrumentality, or agency of the government is not limited to a corporation created by a statute but it is equally applicable to a company or society.’’ Discuss and state whether Article 12 also includes private persons.[1997 3(a)] BE N BY IAS beandbyias.com

  30. PREVIOUS YEARS QUESTIONS Critically examine the widening dimensions of the concept ‘’the state’’ in Article 12 of the constitution of India [1995 2(a) ‘An authority is state within the meaning of article 12 of the constitution of India if it is an agency or instrumentality of state’ How is it determined whether an authority is an agency or instrumentality of state or not? [1992 1(a)] BE N BY IAS beandbyias.com

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