State (Article12)/asr

• Fundamental rights available against State

Under that concept unlike the other legal rights,
which are the creation of the State given to
individuals against one another, the fundamental
rights are claimed against the State. Therefore,
whether a constitution says it or not, it is generally
assumed that the fundamental rights given in it are
available against the State i.e. against the actions of
the State and its officials. Fundamental Rights
provided by Articles 15(2),17, 23(1) & 24 are
available against private individuals. 1
 Definition of State (Article 12)
• Article 12 defines the term 'State' as used in
different Articles of Part III of the Constitution. It
says that unless the context otherwise requires the
term 'State' includes the following :-
a) The Government and Parliament of India, i.e.,
Executive and Legislature of the Union.
b) The Government and the Legislature of each State,
i.e., Executive and Legislature of States.
c) All local or other authorities within the territory of
India.
d) All local and other authorities under the control of
the Government of India.
2
 Definition of State (Article 12)
• Local Authorities.- 'Local authorities' as defined in
Section 3 (31) of the General Clauses Act refers to
authorities like Municipalities, District Boards,
Panchayats, Improvement Trust s and Mining
Settlement Boards.
OTHER AUTHORITIES
• In Article 12 the expression 'other authorities' is
used after mentioning a few of them, such as, the
Government, Parliament of India, the Government
and Legislature of each of the States and all local
authorities.
3
Once a body is characterized as an ‘authority’ uder
Art. 12, several significant incidents invariably
follow, viz;
1. The body becomes subject to the discipline of the
Fundamental Rights which means that its actions
and decisions can be challenged with reference to
the Fundamental Rights.
2. The body also becomes subject to the discipline of
Administrative Law.
3. The body becomes subject to the writ jurisdiction
of the Supreme Court under Art. 32 and that of the
High Courts under Art. 226.
4
University of Madras v. Santa Bai(1954)
• In University of Madras v. Santa Bai, the
Madras High Court held that 'other
authorities' could only indicate authorities of
a like nature, i.e. ejusdem generis. So
construed, it could only mean authorities
exercising governmental or sovereign
functions. It cannot include University .

5
 Ejusdem generis
• List is=Onion, tomato, potato, brinjal, . If you
need to predict what comes next. You can say
that next should a vegetable. (common genus
running through these items)
• List is=Onion, tomato, table, elephant. . If you
need to predict what comes next. You can say
that next need not be a vegetable

6
 Ujjammbai v. State of U'P(1962)
• But in Ujjammbai v. State of U'P, the Court rejected
this restrictive interpretation of the expression
'other authorities' given by the Madras High Court
and held that the ejusdem generis rule could not
be resorted to in interpreting this expression. In
Article 12 the bodies specifically named are the
Government of the Union and the States, the
Legislature of the Union and the States and local
authorities. There is no common genus ( a class of
things which have common characteristics)
running through these named bodies nor can these
bodies so placed in one single category on any
rational basis. 7
 Electricity Board, Rajasthan v. Mohan Lal
(1967)
• In Electricity Board, Rajasthan v. Mohan Lal, the
Supreme Court held that the expression 'other
authorities' is wide enough to include all
authorities created by the Constitution or statute
on whom powers are conferred by law. It is not
necessary that the statutory authority should be
engaged in performing governmental or sovereign
function. On this interpretation the expression
'other authorities' will include Rajasthan Electricity
Board.
8
Electricity Board, Rajasthan v. Mohan Lal
(1967)
• In effect, the Rajasthan Electricity Board's
decision" has overruled the decision of the
Madras High Court in Santa Bai's case,
holding a University not to be "the State".
And finally, the Patna High Court, following
the decision of the Supreme Court, has held
that the Patna University is"a State".

9
 Sukhdev Singh v. Bhagatram(1975)
• In Sukhdev Singh v. Bhagatram, the Supreme Court,
following the test laid down in Electricity Board
Rajasthan's case by 4:1 majority, (Alagiriswamy, J.
dissenting) 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'.
• The effect of these decisions was that the
'authorities' not created by the Constitution or by a
statute could not be a 'State' within the meaning
of Article 12 of the Constitution. 10
 Airport Authority's case(1979)
• In this case the Court has held that if a body is an
agency or instrumentality of government it may be an
'authority' within the meaning of Article 12 whether it
is a statutory corporation, a government company or
even a registered society. Accordingly, it was held that
the International Airport Authority which had been
created by an Act of Parliament was the "State"
within the meaning of Article 12. The Central
Government had power to appoint the Chairman and
other members of the Airport Authority. It has power
to terminate the appointment of any member form
the Board. The capital needed by it was provided only
by the Central Government.
11
 Airport Authority's case(1979)
• But what is the test whether a body is an agency or
instrumentality? The Court laid down the following
tests for determining whether a body is an agency or
instrumentality of the Government :-
• (1) financial resources of the State is the chief funding
source, i.e., if the entire share capital of the
corporation is held by Government, (2) existence of
deep and pervasive State control, (3) functional
character being governmental in essence, i.e., if the
functions of the corporation are of public importance
and closely related to governmental functions, (4) if a
department of Government is transferred to a
corporation, (5) if the corporation, enjoys monopoly
status which is State conferred or State protected. 12
 Ajay Hasia v. Khalid Mujib(1981)
• In Ajay Hasia v. Khalid Mujib, it has been held that a
Society registered under the J&K Societies
Registration Act, 1898, is an agency or
"instrumentality of the State" and hence a 'State'
within the meaning of Article 12. Its composition is
determined by the representatives of the
Government. The expenses of society are entirely
provided by the Central Government. The rules made
by the society require prior approval of the State and
Central Governments. The society is to comply with all
directions of the Government. It is completely
controlled by the Government. The Government has
power to appoint and remove the members of the
society. Thus, the State and the Central Government
have full control of the working of the society.
13
 Ajay Hasia v. Khalid Mujib(1981)
• In view of these elements the society is an
instrumentality of the State or the Central Government
and it is therefore an "authority" within the meaning of
Article 12. The test is not as to how the juristic person
is created but why it has been brought into existence.
A corporation may be statutory corporation created by
a statute or a government company formed under the
Companies Act, 1956, or a Society registered under the
Societies Registration Act, 1860, or any other similar
statute. It would be an 'authority' within the meaning
of Article 12 if it is an instrumentality or agency of the
Government and that would have to be decided on a
proper assessment of the case in the light of the
relevant factors(Regional engineering College,Srinagar)
14
 Manmohan Singh Jaitla v. Commissioner,
Union Territory of Chandigarh(1984)
• In Manmohan Singh Jaitla v. Commissioner, Union
Territory of Chandigarh, the Court following Ajai
Hasia's case held that an aided school which
received a Government grant of 90 per cent was an
"authority" within the meaning of Article 12.
Similarly, it has been held that the Food
Corporation of India, the Steel Authority of India,
Bihar State Electricity Board, Indian Oil
Corporation, are the 'State' within the meaning of
'other authorities' under Article 12 as they are
instrumentalities of the State.
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 Body/Organization/Establishment
• Engaged in performing governmental or sovereign
functions.
• Created by Constitution or Statute
• Agency or instrumentality(Includes a Government
Company or a Society registered under Societies
Registration Act).
1. If it is supported financially mainly by Govnmt, or
2. If there is deep and pervasive control of
Government or
3. If functions are of public importance (closely
related to governmental functions) 16
 Tekraj Vasandi v. Union of India(1988)
• In Tekraj Vasandi v. Union of India, it has been held
that the "Institute of Constitutional and
Parliamentary Studies ", a society registered under
the Societies Registration Act, 1860, is not a State
within the meaning of Article 12. The Institute of
Constitutional and Parliamentary Studies is neither
an agency nor an instrumentality of the State. It is
a voluntary organization. The object of the society
is not related to government business. In the
functioning of the society, the Government does
not have deep and pervasive control.
17
 Chandra Mohan Khanna v. NCERT(1992)
• Following Tekraj Vasandi v. Union of India the Court in
Chandra Mohan Khanna v. NCERT, has held that National
Council of Educational Research and Training, is not a 'State'
within the meaning of Article 12 of the Constitution. It is a
society registered under the Societies Registration Act. The
object of the NCERT is to assist and advise the Ministry of
Education and Social Welfare in the implementation of the
governmental policies and major programmes in the field of
education particularly school education. These activities are
not wholly related to governmental functions. The
governmental control is confined only to proper utilization
of the grant. It is an autonomous body. Article 12 should not
be stretched so as to bring in every autonomous body which
has some nexus with the government within the sweep of
the expression, 'State'. In the modern concept of welfare
State, independent institution, corporation and agency are
generally subject to State control.
18
 G. Bassi Reddy v. International Crops
Research Institute (2003)
• In G. Bassi Reddy v. International Crops Research Inst, it
has been held that the International Crop Research
Institute is an international organization and has been
set up as non profit research and training centre is not
a 'State' within the meaning of Article 12 of the
Constitution. Consequently, no writ petition can be
allowed by its employees challenging their removal
from service as being violative of Articles 14 and 16 of
the Constitution. It is not set up by the Government
and gives service to a large number of countries
voluntarily. It is not controlled by nor is accountable to
the Government.
19
 M.C. Mehta v. Union of India(1987)
• In M.C. Mehta v. Union of India, the important
question which was raised before the Court was
whether a private corporation fell within the ambit
of Article 12. Although the question whether a
private corporation fell within the ambit of Article
12 was not finally decided by the Court, but it
stressed the need to do so in future.

20
 Unaided minority School
• Unaided minority schools over which the
Government has no administrative control
due to their authority under Article 30 (1) of
the Constitution are not "State" within the
meaning of Article 12 of the Constitution
(Satimbla Sharma V. St. Paul Senior Secondary
school[2011])

21
 BCCI
• BCCI is not ‘State” under Article 12.- Reasons
• The BCCI is not created by a statute.
• No part of the share capital of the BCCI is held by
the government.
• Practically no financial assistance is given by the
government to meet the whole or entire
expenditure of the Board.
• The BCCI’s monopoly in field of cricket is not state-
conferred or state-protected.
• There is no deep and pervasive state control. The
control if any is only regulatory in nature. 22
 BCCI(The Board of Control for
cricket in India
• BCCI, the world’s richest cricket body, operates
as a private entity under the TN Societies
registration Act.
• The Law commission panel unanimously
concluded that given BCC;s monopoly over
cricket, for years in the form of tax exemptions
and allotment of land must be classified as a
public body and brought under the RTI Act

23
Is Judiciary included in the word "State"?
• In America it is well-settled that the judiciary is
within the prohibition of the 14th Amendment. The
judiciary, it is said, though not expressly mentioned
in Article 12 it should be included within the
expression 'other authorities' since courts are set
up by statute and exercise power conferred by law.
• Judiciary cannot be a State under Article 12.
Note:Only when they deal with their employees or
act in other matters purely in administrative
capacity, the courts may fall within the definition of
the State for attracting writ jurisdiction against their
administrative actions only 24
 Laws inconsistent with Fundamental
Rights (Article 13)
• Article 13 (I) declares that all laws in force in the
territory of India immediately before the
commencement of this Constitution shall be void to
the extent to which they are inconsistent with the
provisions of Part III of the Constitution. Clause (2) of
this article provides that the State shall not make any
law which takes away or abridges the fundamental
rights conferred by Part III of the Constitution; and any
law made in contravention of fundamental rights
shall, to the extent of contravention, be void. Clause
(3) of this article gives the term 'law' a very broad
connotation which includes any ordinance, order, by-
law, rule, regulation, notification, custom or usage
having the force of law.
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 Article 13 Clause (2)
Article 13 Clause (2) provides that no law can annul or
abridge Fundamental Rights. Therefore, cannot a
Parliamentary amendment annul or abridge
Fundamental Rights?
In Golak Nath v State of Punjab(1971), a eleven judge
bench of the Supreme Court held that Parliamentary
amendment was law for the purposes of article 13(2),
therefore cannot annul or abridge fundamental rights.
However ,in Keshavananda Bharti’s case, (1973) a
thirteen judge bench of the Supreme Court held that
Parliamentary amendment was not law for the purposes
of article 13(2), therefore can annul or abridge
fundamental rights 26
 Power of Judicial Review
• Judicial Review is the interposition of judicial restraint
on the legislative as well as the executive organs of
the Government. The concept has the origin in the
theory of limited Government and in the theory of two
laws-an ordinary and supreme (i.e., the Constitution).
From the very assumption that there is a supreme law
which constitutes the foundation and source of other
legislative authorities in the body polity, it proceeds
that any act of the ordinary law-making bodies which
contravenes the provisions of the supreme law must
be void and there must be some one who is to possess
the power or authority to pronounce such legislative
acts void. 27
 Marbury v. Madison
• The doctrine of judicial review was for the first
time propounded by the Supreme Court of
America. Originally, the United States
Constitution did not contain an express
provision for judicial review. The power of
judicial review was, however, assumed by the
Supreme Court of America in the historic case
of Marbury v. Madison.

28
 Marbury v. Madison (1803)
• The Federalists had lost the election of 1800, but
before leaving the office they had succeeded in creating
several new judicial posts. Among these were 42
justices of peace, to which the retiring Federalists
President John Adams appointed forty-two persons.
The appointment of commissions were confirmed by
the Senate and they were signed and sealed, but
Adam's Secretary of State, John Marshall, failed to
deliver certain of them. When the new President,
Thomas Jefferson, assumed office, he instructed his
Secretary of State, James Madison not to deliver
seventeen of these commissions including one for
William Marbury. Marbury, filed a petition in the
Supreme Court for the issue of a writ of mandamus to
Secretary Madison ordering him to deliver the
commissions 29
 Marbury v. Madison
• Marbury relied on Section 31 of the Judiciary Act of
1789 which provided: "The Supreme Court shall have
the power to issue..... writs of mandamus in cases
warranted by the principles and usages of law ..... to
persons holding office, under the authority of the
United States". The Court, speaking through Marshall,
who had now become Chief Justice, held that Section
31 of the Judiciary Act was repugnant to Article III,
Section 2 of the Constitution inasmuch as the
Constitution itself limited the Supreme Court's original
jurisdiction to cases" affecting ambassadors, other
public ministers and consuls, and those to which a
State is party''. Since Marbury fell in none of these
categories the court had no jurisdiction in his case.
30
 JR in a more solid footing in India
• In the Indian Constitution there is an express
provision for judicial review, and in this sense it is
on a more solid footing than it is in America.
• But even in the absence of the provision for judicial
review, the courts would have been able to
invalidate a law which contravened any
constitutional provision, for such power of judicial
review follows from the very nature of
constitutional law.

31
 Pre-Constitution Laws
• According to clause (1) of Article 13 all pre-
Constitution or existing laws, i.e., laws which were
in force immediately before the commencement of
the Constitution shall be void to the extent to which
they are inconsistent with fundamental rights from
the date of the commencement of the Constitution.
• Article13 not retrospective in effect.- Article 13 (1)
is prospective in nature. All pre-Constitution laws
inconsistent with Fundamental Rights will become
void only after the commencement of the
Constitution. They are not void ab initio. Such
inconsistent law is not wiped out so far as the past
Acts are concerned. 32
 Keshava Madhav Menon v. State of
Bombay (1951).
• In this case, a prosecution (proceeding) was started
against the petitioner under the Press (Emergency
Powers) Act, 1931 in respect of a pamphlet published in
1949. The present Constitution came into force during
the pendency of the proceeding in the Court. The
appellant contended that the Act was inconsistent
with the fundamental rights conferred by Article 19
(l)(a) of the Constitution hence void, and the
proceeding against him could not be continued. The
Supreme Court held that Article 13 (1), could not apply
to his case as the offence was committed before the
present Constitution came into force and therefore,
the proceedings started against him in 1949 were not
affected.
33
 Doctrine of Severability
• When a part of the statute is declared
unconstitutional then a question arises whether
the whole of the statute is to be declared void or
only that part which is unconstitutional should
be declared as such. To resolve this problem, the
Supreme Court has devised the doctrine of
severability or separability. This doctrine means
that if an offending provision can be separated
from that which is constitutional then only that
part which is offending is to be declared as void
and not the entire statute. 34
 Kihota Hollohan v. Zachithu(1993)
• In Kihota Hollohan v. Zachithu, it has been held
that Section 10 of the Tenth Schedule minus para
7 remains valid and constitutional. Para 7 which
has been declared unconstitutional is severable
from the main provisions of the Tenth Schedule.
The remaining provisions of the Tenth Schedule
stand independent of Para 7 and are complete in
themselves and workable. Para 7 of the Tenth
Schedule provided that the Speaker's decision
regarding the disqualification shall be final and
no court could examine its validity. 35
 EXCEPTION
• This is, however, subject to one exception. If
the valid portion is so closely mixed up with
invalid portion that it cannot be separated
without leaving an incomplete or more or
less mingled remainder, then the courts will
hold the entire Act, void. The primary test is
whether what remains is so inextricably mixed
with the part declared invalid that what
remains cannot survive independently.
36
 Doctrine of Eclipse
• The doctrine of eclipse is based on the principle that a
law which violates Fundamental Rights is not nullity
or void ab initio but becomes only unenforceable, i.e.,
remains in a moribund condition. "It is over-shadowed
by the fundamental rights and remains dormant; but
it is not dead. Such laws are not wiped out entirely
from the statute book. They exist for all past
transactions. and for the enforcement of rights
acquired and liabilities incurred before the present
Constitution came into force and for determination of
right of persons who have not been given
fundamental rights by the Constitution, e.g., non-
citizens. 37
 REVIVAL
• Can such a law which becomes unenforceable
after the Constitution came into force be
again revived and made effective by an
amendment in the Constitution?
• It was to solve this problem that the Supreme
Court formulated the doctrine of eclipse in
Bhikaji v. State of M.P.

38
 Bhikaji v. State of M.P (1955)
• In that case provision of C.P. and Berar Motor Vehicles
(Amendment) Act, 1947 authorized the State
Government to monopolise the entire motor
transport business in the Province to the exclusion of
motor transport operators. This provision, though
valid when enacted, became void on the coming into
force of the Constitution in 1950 as they violated
Article 19 (1)(g) of the Constitution. However, in
1951, Clause (6) of Article 19 was amended by the
Constitution (Ist Amendment) Act, so as to authorise
the Government to monopolise any business. The
Supreme Court held that 'the effect of the
Amendment was to remove the shadow and to make
the impugned Act free from all blemish or infirmity'.
As soon as the eclipse is removed the law begins to
operate from the date of such removal 39
 Does the doctrine of eclipse apply to a
post-constitutionaL Law
State of Gujarat V. Ambica Mills(1974)
• In State of Gujarat V. Ambica Mills, the Supreme
Court modified its view as expressed in Deep Chand
case and held that a post- Constitution law which is
inconsistent with fundamental rights is not nullity
or non- existent in all cases and for all purposes.
The doctrine of absolute nullity is not a universal
rule and there are many exceptions to it. A post-
Constitution law which takes away or abridges the
right conferred by Article 19 will be operative as
regards to non- citizens because fundamental
rights are not available to non-citizens. 40
 Doctrine of Waiver
• The question of waiver directly arose in
Bashesher Nath v. Income Tax-Commissioner
(1959). The Petitioner whose case was referred to
the Income-tax Investigation Commissioner under
Section 5 (1) of the Act was found to have
concealed large amount of income. He,
thereupon, agreed at a settlement in 1954 to pay
Rs. 3 lakhs in monthly installments by way of
arrears of tax and penalty. In 1955, the Supreme
Court in Muthiah v. I. T. Commissioner, held that
Section 5 (1) of the Taxation of Income
(Investigation Commission) Act was ultra vires of
Article 14. 41
 Bashesher Nath v. Income Tax-
Commissioner (1959).
• The petitioner then challenged the settlement
between him and the Income Tax Investigation
Commission. The respondent contended that even
if Section 5 (1) was invalid, the petitioner by
entering into an agreement to pay the tax had
waived his fundamental right guaranteed under
Article 14.
• The majority expressed the view that the doctrine
of waiver as formulated by some American Judges
interpreting the American Constitution cannot be
applied in interpreting the Indian Constitution.
42