Article 12 And Definition Of The State

Part III of our constitution contains a long list of fundamental rights, beginning with article 12 and ending with article 35. This chapter has been dubbed the Magna Carta of India, because the Magna Carta was more than just a document signed by King John; it was also a symbol of individual rights assertion. It reflects the people's awakening in the face of oppressive systems such as monarchy, and it teaches us that individuals empowered with rights and freedoms can effect significant change.

 

Article 12 specifies the definition of a state. It goes like this: "The State" in this section includes 1. The Indian Government and Parliament, unless the context requires otherwise. 2. Each State's Government and Legislative Assembly 3. Local Governments or 4. Other Governments Within India's territory or under the control of the Indian government

 

The term refers to the Union's executive and legislative branches. This phrase can be understood simply by observing that whenever Parliament passes a bill, it receives assent, and is enacted as a "act," it is a central legislative function. When any "act," whether in whole or in part, infringes on an individual's fundamental rights, it is brought before the courts and subjected to judicial scrutiny. Section 66A was challenged before the Hon'ble Apex Court as being in violation of Article 19 in the well-known case of Shreya Singhal v. Union of India, and was struck down and declared ultra vires on the same grounds. Now that the Information Technology Act of 2000 has been passed by the Union legislature, it cannot be used to violate fundamental rights because it is a "state."

 

This phrase indicates that acts of the state legislature or executive will be included in the definition of the state, and any State act, order, rule, or regulation that violates an individual's rights will be declared null and void to the extent of the violation.

 

Municipalities, District Boards, and other local authorities are all covered by local authorities, and an individual can seek redress against them. A Municipal committee's bye-laws fall under Article 13's definition of law and can be challenged on the basis of a violation of a fundamental right. The reference to local authorities is found in the General Clauses Act of 1897, and it is worthwhile to examine it briefly.

 

A proper and careful examination of Section 3(31) suggests that in order to be a local authority, an authority must be of the same nature and character as a municipal committee, District Board, or Body of Port Commissioners, possessing many, if not all, of those bodies' distinctive attributes and characteristics, but lacking one essential feature: it must be legally entitled to or entrusted by the government with the control and management of a local fund.

Now we come to the most contentious and debated phrase in all of Article 12, namely, "other authorities." It is critical that the evolution of this concept be discussed in order to gain a better understanding of it.

 

1. Previously, this term was given a restrictive interpretation, and the principle of ejusdem generis, or things of like nature, was applied, which meant that authorities performing governmental or sovereign functions were only covered by other authorities.

 

2. The liberal interpretation came when the Supreme Court in Ujjambai v. State of Uttar Pradesh rejected the interpretation based on ejusdem generis and held that the term's interpretation could not be restricted. It was opined in Electricity Board v. Mohan lal that an authority does not have to be engaged in sovereign or governmental functions to fall under the definition, and that the State Electricity Board of Rajasthan would fall under the definition. In Sukhdev Singh v. Bhagatram, the same test was used to determine that LIC, ONGC, and IFC are all "other authorities."

 

3. However, R.D Shetty v. Airport Authority of India was a watershed moment, as it established the 5Point test proposed by Justice P.N Bhagwati. This is a test to see if a body is a state agency or instrumentality, and it goes like this:

 

1) The state's financial resources are the primary source of funding, as the government owns all of the company's stock.

 

2) State control that is deep and pervasive

 

3) The functional character is inherently governmental, implying that its functions are of public importance or have a governmental character.

 

4) A government department has been transferred to a private company.

 

5) Has monopoly status conferred or protected by the government. The statement that the test is only illustrative and not conclusive in nature and should be approached with great care and caution clarified this.

 

It was held in Ajay Hasia v. Khalid Mujib Sehravardi that a statutory body falling under the purview of the expression "other authorities" should be treated differently. The tests established in this case, in the opinion of the minority, are only relevant for determining whether an entity is a "instrumentality or agency of the State."

 

Zee Telefilms v. Union of India is the relevant case in this case. Because BCCI is not a government-owned corporation, it is not dominated financially, functionally, or administratively by the government. As a result, it is not a state as defined by Article 12 of the Constitution.

 

Rejecting the argument that the Board of Control for Cricket in India (BCCI) is a private body, the Law Commission advised the government to bring the BCCI and its constituent member cricketing associations under the RTI Act.

 

• Based on Article 12 of the Constitution, the commission determined that BCCI should be classified as a "state" within the meaning of that article.

 

• The Law Commission also stated that BCCI has state-like powers that affect stakeholders' fundamental rights as guaranteed by Part III of the Constitution.

 

• The Supreme Court had asked the commission in July 2016 to recommend whether the cricket board should be subject to the RTI Act.

 

• Under the Tamil Nadu Societies Registration Act, the Board of Control for Cricket in India (BCCI), the world's richest cricket body, operates as a private entity.

 

Article 12 does not specifically mention the judiciary, and there are numerous dissenting viewpoints on the subject. Bringing the judiciary under Article 12 in its entirety causes a great deal of consternation because it implies that the very guardian of our fundamental rights is capable of infringing on them. 

 

Perhaps this can be better understood with the help of relevant judgments: The Apex Court reaffirmed and ruled in Rupa Ashok Hurra v. Ashok Hurra that no judicial proceeding could be said to violate any of the Fundamental rights, and that it is a settled legal position that superiorcourts of justice did not fall within the ambit of'state' or'other authorities' under Article 12. This leaves us with the rationale that a Superior Judicial body acting "judicially" would not be considered a state, but if it performs any administrative or similar functions, such as conducting examinations, it would be considered a state, and that a remedy could be sought in that context only if fundamental rights were violated.

 

The definition in Article 12 is only for the purposes of applying the provisions of Part III. It cannot be applied to any provision outside of Part III, such as Art. 311. Within the territory of India or under the control of the Government of India is limited in its application only to Part III and, by virtue of Art. 36, to Part IV: it does not extend to other provisions of the Constitution, and thus a legal entity that is a 'State' for the purposes of Part III and Part IV would not be so for the purposes of Part XIV or any other provision of the Constitution. 

 

As a result, even if a group of people does not meet the definition of "State" in the instant definition, a writ under Art. 226 may be issued against them on non-constitutional grounds or for violating provisions of the Constitution outside Part III, such as where such a group has a public duty to fulfil or where its actions are supported by the State or public officials.