03/04 Oct| CONSTITUTIONAL LAW| UPSC LAW OPTIONAL MAINS 2018 question

QUESTION| Critically evaluate the changing dimensions of the concept of ‘State’ under Article 12 of the constitution of India, 1950.

Importance of this question : This question was asked as question 1(c)-UPSC Law Optional Mains 2018

QUESTION POSTED ON | 03.10.2021

MODEL ANSWER WILL BE POSTED ON | 04.10.2021

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ANSWER | Meaning of ‘State’: Article 12 for the purposes of Part III explains that ‘state’ includes:

1. Government and Parliament of India, i.e. executive and legislative wings of the Union government.

2. Government and legislature of states, i.e. executive and legislative wings of state government.

3. All local authorities.

4. All other authorities, that is, statutory or non statutory authorities like LIC, ONGC, SAIL, etc.

Amongst the categories stated above, the categories which require concrete explanation are the Local and other authorities. Let’s discuss them in detail. They have been interpreted widely and responsible for changing dimension of concept of state.

Local Authorities: As per Article 12 this expression refers to authorities like municipalities, district boards, panchayats, improvement trusts, Port trusts, Mining settlement Boards etc. Furthermore, under Section 3(31) of The General Clauses Act, 1897 local authority has been defined to include 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.

Other Authorities: Article 12 provides a list of authorities falling within the definition of state by referring to ‘other authorities’ within the territory of India or under the control of Government of India.

The authorities which the judiciary has stated to be included within the definition of state are :

·The Electricity Board of Rajasthan: In the case of Electricity Board, Rajasthan SEB v. Mohan Lal (1967) it was held that Board had power to give directions, the disobedience of which was punishable as an offence.

·ONGC, IFC, LIC: In Sukhdev Singh v. Bhagatram Raghuvanshi (1975) it was held that the three corporations were created by statutes, and had the statutory power to make binding rules and regulations, and were subject to pervasive governmental control.

·Judiciary: In Rupa Ashok Hurra v. Ashok Hurra (2002) it was held that no judicial proceeding could be said to violate any of the Fundamental rights and that it is a settled position of law that superior courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.

Thus, it can be stated that when a judicial body is performing judicial functions, it would not fall under the definition of State but when it performs any administrative or similar functions it will fall under the definition of “state” and that remedy could be sought in that context only in case of violation of fundamental rights.

Test to Determine Other Authorities: In the case of Ajay Hasia v. Khalid Mujib Sehravardi (1981), the court stated that an authority will be considered as an instrument of state if following factors are satisfied:

1. If the entire share capital of the corporation is held by Government;

2. Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation;

3. Whether the corporation enjoys monopoly status which is State conferred or State protected.

4. Existence of deep and pervasive State control;

5. If the functions of the corporation are of public importance and closely related to Governmental functions;

6. If a department of Government is transferred to a corporation;

Critical analysis | Judiciary has tried to widen the scope of definition of state to make sure that fundamental rights are enforceable against it.

However, NCERT was not held to be state in Chandra Mohan Khanna v NCERT as it was only an advisory body to assist and advise the Ministry of Education and Social Welfare in the implementation of the Governmental policies and major programs in the field of education particularly school education. But the very same role is essentially a major function of state ( to impart education). That too as we aim for a welfare state, such body which is prime pillar of country’s education could not be made immune to enforce fundamental rights against it.

Other example, Zee Telefilms Ltd and Anr vs. Union of India Ors (2005), it was held that BCCI is not an instrumentality of the State and it doesn’t belong under Article 12. The same was reaffirmed in 2011 in the case of A.C. Muthiah v. BCCI & Anr 2011, due to its state-like functions and monopolistic behavior in the market, there have been several debates on reforming BCCI to a government body. However it was made a public authority under RTI.

Yes, there certain bodies which need to be included into the definition to achieve a perfect welfare state.