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Article 12: Defining the term ‘State’ (Part III of the Constitution of India, 1950)*
Introduction: Jurisprudential Premise
According to Bryce, legal sovereignty lies in that authority, be it a person or a body, whose expressed will binds others, and whose will is not liable to be over-ruled by the expressed will of anyone placed above it.^1 The concept of sovereignty came about as a result of renaissance and reformation of Europe. It was Machiavelli, who developed the concept of „State Absolutism‟, that is, State is absolute and an end in itself; there cannot be restraints on its powers. He opined that, the State is neither subordinate to church, nor to the natural law.^2 The French jurist, Jean Bodin, claimed himself to be the first jurist, who attempted to define the term „sovereign‟. For him „sovereign‟ meant, „absolute and perpetual power within a State‟.^3
Thomas Hobbes (1588-1679) expressed his political philosophy through his most revered work Leviathan , which got published two-years after the execution of King Charles I. Through his work ( Leviathan ) Hobbes claimed that society needs a supreme-excellence that is, an absolute-monarch, for only, the existence of „one supreme sovereign power‟ can ensure peace for all. Hobbes argued that, factionalism within society, such as, rival governments, differing philosophies, or the tussle between the Church and the government, leads to one conclusion that is „civil war‟. Thus, for the maintenance of peace, every individual in the society needs to agree, albeit to have one authoritative figure that controls the government, makes the laws and is in-charge of the church; this authoritative figure is to be termed as the „State‟.
John Locke (1632-1704) in his most influential work, Two Treaties of Government, details out his beliefs qua „human nature and politics‟. Cornerstone of his philosophy was the premise that, the sole purpose of government is to seek (and support) well-being of all individuals. Locke believed that, though some natural rights are surrendered when a government is established; nay, the ability of the government to protect the rights of
*Shivam Goel, B.Com Honours (Delhi University); LL.B. (Delhi University); LL.M. (NUJS, Calcutta); Author: International Arbitration With Special Focus on Bahrain , Lambert Academic Publishing, 2014, ISBN: 978-3- 659-60665-6; Concept of Rights in Islam , Lambert Academic Publication; ISBN-10: 3659641448; ISBN-13: 978-3659641442; and Corporate Manslaughter & Corporate Homicide: Scope for a New Legislation in India , Partridge India (26 June 2015), ISBN-10: 1482846837, ISBN-13: 978-1482846836. Law Researcher to Hon‟ble Mr. Justice Rajiv Shakdher, High Court of Delhi 1 2 See: Bryce,^ Studies in History and Jurisprudence,^ Volume II, p. 3 See: Machiavelli,^ The Prince,^ Volume XXXVI, Part 1, Harvard Classics, P.F. Collier & Sons, (1909-1914) See: Jean Bodin, Six Books of the Commonwealth, (République, I, 8 [Mc] 84), Du Puys, Paris (1576)
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individuals is far more effective, than the ability of an individual to assert them on his own. If the government, Locke asserts, no longer supports the well-being of its people, it should be replaced; further, it is the moral obligation of the community, in such scenario, to revolt. When proper government exists, then both, individuals and societies, flourish, both materially and spiritually. It is obligatory upon the government (that is, the State) to provide its individuals with freedom that aligns with the self-perpetuating natural law created by God.^4
John Austin (1790-1859), father of analytical jurisprudence, in his work of reverence, Province of Jurisprudence Determined (1832) , stated in affirmative terms that, „Where there is State, there is no anarchy; State is the necessary evil‟. Austin defined „law‟ as the command of the sovereign, non-compliance of which calls for sanctions. Austin stated that, „if a determinate human superior is not in a habit of obedience to any such like superior, but receives habitual obedience from the bulk of a given society, then that determinate human superior is the sovereign in that society‟.^5
Lastly, A.V. Dicey (1835-1922) in his much acclaimed work, The Law of the Constitution , explained the theory of „popular sovereignty‟. Dicey stated that, legislature (that is, the Parliament) is the legal sovereign because it is the supreme law making body. Behind this legal sovereign (that is, the legislature) there is a political sovereign which is the electorate. The legal sovereign has to act in accordance with the political sovereign. As per Dicey, the test to determine, whether or not, a person or a body is a legal sovereign, is to see, whether or not, it possesses the power to make or unmake the laws. For establishment of a stable government, there should be harmony between the two sovereigns, that is, the legal sovereign and the political sovereign. Post the elections, in consonance with the election-outcome, the Parliament is constituted, and hence the sovereignty directly vests in the legal sovereign, and the political sovereign continues to remain sovereign only indirectly.^6
Lexically speaking, the term „State‟ in the generic sense of the term can be defined as, „a people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium of an organised government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other
(^4) See: Paul Kleinman, Philosophy 101, Adams Media Publication, 2013, p. 101- (^5) See: John Austin, The Province of Jurisprudence Determined , Volume I, John Murray Publishers (1832), p. 220-221 6 See: A.C. Dicey, The Law of the Constitution, Elibron Classics (2000)
public duty to perform, or where its acts are supported by the State or public officials.^17 To maintain a writ against a person, or against a non-statutory body, it is necessary that the order must be in discharge of public function (or public duty). A private body discharging public duty or positive obligation of a public nature, or a person (or body) under a liability to discharge any function under any statute is also amenable to writ jurisdiction.^18
According to Article 12 of the Constitution of India, 1950, the term „State‟ includes the following: (a) the Central Government and the State Governments; (b) the Parliament of India and the State Legislatures; (c) all local authorities; and (d) other authorities within the territory of India, or under the control of the Central Government. Article 12 envisages a special definition, with a broader goal, qua the term „State‟. Article 12 does not restrict the conceptual framework of the term „State‟ within the bounds of the language of the constitutional provision, that is, Article 12. It in fact, embraces a definition which is wider in scope and perspective, to bring under its sweep all authorities under the control of the Government. The constitutional philosophy as enumerated in the Preamble of the Constitution of India, defines India as- sovereign, socialist, secular, democratic, republic; this in fact mandates the State to undertake multi-dimensional socio-economic operations inspired from Part IV of the Constitution of India, 1950, thus State is empowered to enter into vast domain of activities, carrying on operations monopolistically or competitively, to ensure achievement of the one-dimensional goal of „welfare state‟.
It can said with affirmation that, the definition of „State‟ as contained in Article 12 of the Constitution of India, 1950 will include not only the Executive and Legislative organs of the Union and the States, but also local bodies (that is, municipal corporations) as well as „other authorities‟, which include the „instrumentalities or agencies‟ of the State, or bodies (or institutions) which discharge public functions of governmental character; in other words, it comprises of all acts which can be brought within the fold of „State Action‟^19. It is necessary to note that, the concept of „State Action‟ has been enlarged to bring within its domain acts done by private persons or bodies exercising statutory powers^20 or, acts supported by the
(^17) See: Kartick v. W.B.S.I.C , AIR 1967 Cal 231 (234); Also see: Dr. Durga Das Basu, Commentary on the Constitution of India, 18 8 th^ Edition, Lexis Nexis, p. See: Dr. Durga Das Basu, Commentary on the Constitution of India, 8 th^ Edition, Lexis Nexis, Volume 1, p. (^63619) 20 See:^ Som Prakash Rekhi^ v.^ Union of India , AIR 1981 SC 212 (Para 34 and 37) See: Steele v. L. & N.R. Co. , (1944) 323 U.S. 192; Pennsylvania v. Board of Trustees , (1956) 353 U.S. 230
State^21 , with or without legislative authority or in abuse of such authority^22 , or even where the State has become involved in private action.^23
Chapter II- Tests for the Determination of ‘State’:
In a series of judgments, the Supreme Court of India has deliberated upon „tests‟ for the determination of „State‟; the underlining principle being, „functional, financial and administrative domination‟ coupled with „deep and pervasive control‟. In the case of Ajay Hasia v. Khalid Mujib Sehravardi^24 , the Constitution Bench of the Apex Court relied upon the „test‟ formulated in the case of R.D. Shetty v. International Airport Authority of India^25 , for the determination of „State‟. The following test was formulated in R.D. Shetty :
(i). If the entire share-capital of the body is held by the government, it goes a long way indicating that the body is an instrumentality of the government; (ii). Where the financial assistance rendered by the government is so substantial, so as to meet almost the entire expenditure of the body, it is indicative of the fact that the body is impregnated with „governmental character‟; (iii). If the body enjoys „monopoly status‟ which is State conferred or State protected, it is indicative of the fact that the body is within the periphery of Article 12; (iv). Existence of deep and pervasive control of the government, qua the functioning of the body, affords an indication that the body is State instrumentality; (v). If the functions performed by the body are of public nature, public character or public importance, and are closely related to governmental functions, it is a relevant factor to treat the body as an instrumentality of the State.
In the case of, Pradeep Biswas v. Indian Institute of Chemical Biology^26 , a Seven-Judges Bench of the Apex Court laid down the following test for the determination of „State‟: (i). The test formulated in the case of Ajay Hasia v. Khalid Mujib Sehravardi^27 , is not rigid in
(^21) See: Smith v. Allwright , (1944) 321 U.S. 649; Marsh v. Alabama , (1946) 326 U.S. 501 (^22) See: U.S. v. Classic , (1941) 313 U.S. 299; Screws v. U.S. , (1945) 325 U.S. 91 (^23) See: U.S. v. Classic , (1941) 313 U.S. 299; Blum v. Yaresky , (1982) 457 U.S. 991 (^24) AIR 1981 SC 487 (^25) AIR 1979 SC 1628 (^26) (2002) 5 SCC 111 (^27) AIR 1981 SC 487; In this case, the Supreme Court of India noted that, the constitutional philosophy of a democratic socialistic republic requires the Government to undertake a multitude of socio-economic operations, and there are practical advantages of functioning through the legal device of a corporation for a myriad of commercial and economic activities. But any such contrivance of carrying on such activities cannot be declared by the Apex Court, to exonerate the Government of its basic obligation to respect the fundamental rights of the citizens, for otherwise it would be the easiest thing for any Government to do, that is, to assign a plurality of corporations of almost every State, businesses and thereby cheat the people of the country of their fundamental rights, guaranteed to them under the Constitution. The Court went on to enunciate certain tests applicable for
Constitution; (d) When it regulates the right of a citizen as contained in Article 19(1) (a) of the Constitution of India, 1950, available to the general public, viewers of the game of cricket in particular; (e) When it exercises „ de facto ‟ or „ de jure ‟ monopoly; (f) When to a body (or authority), the State outsources its legislative power; and (g) When a body is obliged with a positive obligation of public nature. These tests are of an independent standing. In this case, the Apex Court held that BCCI (Board of Control for Cricket in India) is not a State under the aegis of Article 12 of the Constitution of India, 1950, for the control exercised by the government over BCCI was merely regulatory in nature and not pervasive. The court stated with affirmation that, if a private body chooses to discharge functions (or duties) which are State functions (or public duties), which are not prohibited under law, then such a private body may be considered as an instrumentality of the State.
Recently, the Supreme Court of India in the case of, Board of Control for Cricket in India v. Cricket Association of Bihar^30 , speaking through the bench of Justice T.S. Thakur and Justice F.M. Ibrahim Kalifulla, held that, BCCI is amenable to the writ jurisdiction of Article 226 of the Constitution of India, 1950, even though admittedly, it is not a „State‟ within the meaning of Article 12 of the Constitution of India, 1950, for BCCI is neither created by a statute, nor any part of its share capital is held by the Government; no financial assistance is given to the BCCI by the Government; and it is not created by transfer of a government- owned corporation. The rationale behind arriving at this decision, that is, BCCI is amenable to the writ jurisdiction albeit Article 226 of the Constitution of India, 1950, was the fact that, BCCI‟s control over the sport of cricket in India is deep and pervasive and BCCI enjoys a monopoly status so far as the game of cricket in India is concerned. BCCI formulates rules, regulations, norms and standards covering all aspects of the game of cricket in India. It enjoys the power of choosing (or selecting) not only the members of the national cricket team, but also the umpires and the coaches. It vests itself with the power of disqualifying players which may at times put an end to the sporting career of a cricketer. It spends huge sums of money in building, developing and maintaining infrastructures like stadia, cricket academies and State sports associations. It frames and regulates pension schemes and incurs expenditure on coaches, trainers and physicians to look after and cater to the cricket players. It sells broadcasting and telecasting rights and collects admission fees qua the venues where the cricket matches are played. All these activities fructify owing to the tacit concurrence of the State Government and the Government of India, which are not just fully aware but are
(^30) (2015) 3 SCC 251
also fully supportive of the BCCI‟s activities. In such a situation owing to the doctrine of fairness and good faith, BCCI has a huge responsibility at its peril to discharge, that is, to look after the sport of cricket in India. The nature of this responsibility is of a great public importance and value. Thus, although BCCI is a private body formed under the Tamil Nadu Registration of Societies Act, 1975, it is subject to the writ jurisdiction of the Constitution of India, 1950 vide Article 226, with little regards to the fact that it is not financially, functionally or administratively dominated by the Government.
Local Authorities: Section 3(31) of the General Clauses Act, 1897 defines the term local authority as follows, “local authority shall mean 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”. Hidayatullah, J. in the case of Municipal Corporation of Delhi v. Birla Cotton, Spinning & Weaving Mills Delhi^31 , describing some of the attributes of local bodies, held as follows: “ Local bodies are subordinate branches of governmental activity. They are democratic institutions managed by the representatives of the people. They function for public purposes and take away a part of the government affairs in local areas. They are political sub-divisions and agencies which exercise a part of State functions. As they are intended to carry on local self-government, the power of taxation is a necessary adjunct to their other powers. They function under the supervision of the Government. ”
In the case of, Union of India v. R.C Jain^32 , the Supreme Court of India held threadbare that, to be characterised as an „authority‟ within the periphery of „local authority‟, it should have the following attributes: (a) it must have separate legal existence as a corporate body; (b) it must not be a mere government agency but must be legally an independent entity, functioning in a defined area; ordinarily, wholly or partly, directly or indirectly, elected by the inhabitants of the area; (c) it must enjoy a certain degree of autonomy (either complete or partial), which must be entrusted to it by a statute; and (d) such a body must have power to raise funds for furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or fees. Following the above laid test, the Apex Court in the present case held that, Delhi Development Authority being a statutory body, is a local authority within the meaning of Article 12, for because it was constituted for the avant-garde purpose of development of Delhi according to government plans, which inherently constitutes a municipal function.
(^31) AIR 1968 SC 1232 (^32) AIR 1981 SC 951
It is necessary to note that, once a body is characterised as an „authority‟ qua the mandate of Article 12 of the Constitution of India, 1950, following significant incidents follow: (a) the body becomes subject to the regimen of the fundamental rights, as contained in Part III of the Constitution of India, 1950 (this means, the actions or decisions of the body, can be challenged with reference to the fundamental rights); (b) the body becomes subject to the regimen of the administrative law; and (c) the body becomes amenable to the writ- jurisdiction of the Supreme Court under Article 32, and that of the High Court under Article 226 of the Constitution of India, 1950.
Statutory Bodies: There are four cases of fundamental importance to deliberate upon the issue of statutory bodies qua Article 12 of the Constitution of India, 1950. These cases are: Rajasthan State Electricity Board v. Mohanlal^41 , where it was held that, Rajasthan State Electricity Board is „State‟ within the meaning of Article 12 of the Constitution of India, 1950; for carrying out activities in the nature of trade and commerce cannot oust a statutory body established under the Electricity Supply Act from the definition of State under Article 12 of the Constitution of India, 1950; Sukhdev v. Bhagatram^42 , where it was held that Life Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation are statutory bodies within the meaning of Article 12 of the Constitution of India, 1950; R.D. Shetty v. International Airport Authority of India^43 , it was held that International Airport Authority of India is a statutory body within the purport of Article 12 of the Constitution of India, 1950; and Som Prakash Rekhi v. Union of India^44 , where it was held that, determination in regards to whether or not a body corporate is a „State‟ does not depends on the origin qua such body corporate in statutory sense of the term, but on the basis of „functional aspects‟ vis-à-vis such body corporate, thus it was held that the test is that of „brooding presence of the State behind the operations of the body, whether statutory or not‟.
In the case of, Madhya Pradesh Cooperative Dairy Federation Limited v. Rajnesh Kumar Jamindar & Others^45 , the question that came for adjudication before the court was, whether or not, Madhya Pradesh State Cooperative Dairy Federation Limited was a “State” within the meaning of Article 12 of the Constitution of India, 1950? The court ruled that, whether Madhya Pradesh State Cooperative Dairy Federation Limited was a „State‟ within the purport
(^41) AIR 1967 SC 1857 (^42) AIR 1975 SC 1331 (^43) AIR 1979 SC 1628 (^44) AIR 1981 SC 212 (^45) (2009) 15 SCC 221
of Article 12 can be determined by applying the test of “administrative, financial and functional control”. The court asserted that, federation concerned, in the present case, not only carries on commercial activities, but it also works for achieving, better economic development and public health vis-à-vis the society, thus, it caters to the spirit of Article 47^46 of the Constitution of India, 1950. The court further held that, the federation in the present case was a federal society registered under the Madhya Pradesh Cooperative Societies Act, 1960; it undertakes works, not only in the nature of training and research, but also it monitors as an Apex Body, the functioning of societies established under it. Moreover, guidelines issued by it (Madhya Pradesh State Cooperative Dairy Federation Limited) are binding on the societies, established under it, by virtue of the operation of the Madhya Pradesh Cooperative Societies Act, 1960. It was concluded by the court that, by virtue of the nature of the operations carried out by the federation, it can be termed as the agency (or instrumentality) of the State.
It is interesting to note that, in the case of, Dalco Engineering (P) Ltd. v. Satish Prabhakar^47 , it was held that, the terminology: “ corporation established by or under a Central, Provincial or State Act ”, as has been used in several enactments intends to convey a standard meaning. This terminology, as used in various enactments, makes a reference to “statutory corporations” as contrasted from “non-statutory companies”. An attempt to include private sector within the purport of this terminology will not only amount to the over-ruling of the clear enunciation in S.S. Dhanoa v. Municipal Corporation (Delhi)^48 , which has held the field for almost three decades, but will also lead to obliteration of the distinction maintained, in the Constitution between statutory corporations (which are “State” within the meaning of Article 12) and the non-statutory bodies (and corporations), for the purposes of enforcement of fundamental rights. The Apex Court, thus, affirmatively held that, where the definition of “establishment” uses the term “ a corporation established by or under an Act ”, the emphasis should be on the word “established” in addition to the words “ by or under ”. The word “established” refers to coming into existence by virtue of an enactment. It does not refers to a company, which, when comes into existence, is regulated by, or is governed in accordance with, the provisions of the Companies Act. There is difference between “established by a Central Act” and “established under a Central Act”. A corporation is
(^46) Article 47 of the Constitution of India, 1950: Duty of the State to raise the level of nutrition and the standard of living and to improve public health 47 48 (2010) 4 SCC 378 (1981) 3 SCC 431
quasi-judicial authorities are not „under the control of the Government of India‟). Thus, where the control of the Government of India extends to an authority outside India, the Superior Courts in India can exercise their „constitutional jurisdiction‟ over the acts of such administrative authorities by passing suitable orders. It is necessary to note, in the case of Lena Khan v. Union of India^51 , it was held that, an instrumentality or agency of the State having operations outside India cannot comply with the municipal law as prevailing abroad, which is, in violation of the provisions of the Constitution of India, 1950.^52
Chapter III: Whether ‘State’ includes ‘Judiciary’?
In the United States, a „judicial decision‟ is included in the concept of „State Action‟ for the purpose of enforcement of fundamental rights conferred by the Fourteenth Amendment (citizenship rights and equal protection of laws) of the Constitution.^53 In Ex parte Virginia^54 it was held that, “ A State acts by its legislative, its executive, or its judicial authorities; it can act in no other way ”. Further, in the United States, the acts of Courts and judicial officers (in their judicial capacity) are equally acts of the State, to which the guarantee of „equal protection‟ extends. This aspect can be understood comprehensively through the decision in the case of, Shelley v. Kraemer^55. In this case ( Shelley ) a restrictive covenant albeit stipulation, forbade the use of property by individuals, who were not from the Caucasian race. It was held that, the covenant was unenforceable as the covenant excluded a class of persons simply on the ground of their race, which in turn was violative of the equal protection clause. It was ruled that, the covenant would be unenforceable in the Court of Law, and a judicial decision which would attempt to enforce it would be violative of the constitutional guarantee of equal protection. It was asserted with affirmation that, it cannot be suggested that a court action is immune from the operation of the provisions of the Constitution simply because it is an act of the „judicial branch‟ of the State (that is, the Government). In short, the position that entails in the United States of America is that, a conviction will fall (that is, will
(^51) AIR 1987 SC 1515: (1987) 2 SCC 402; In this case, the age of superannuation of air hostesses employed by Air India in India was fixed at 35 years with extension till 45 years of age, however, air hostesses employed outside India were allowed to continue beyond the age of 45 years. It was held that, such discrimination should not be sustained merely because it complies with the local law abroad (Section 6(4), the U.K. Sex Discrimination Act, 1975). Air-India‟s submission to maintain the same age of retirement everywhere in future was sustained by the Apex Court. 52 53 See: P.M. Bakshi,^ Constitution of India,^ Universal Law Publishing Co., Eighth Edition (2007), p. 10 In the case of Virginia v. Rives , (1880) 100 U.S. 313, the Supreme Court of the United States observed as follows: “ It is doubtless true that a State may act through different agencies- either by its legislative, its executive, or its judicial authorities; and the prohibitions of the Amendment extend to all actions of the State denying equal protection of laws, whether it be action by one of these agencies or by another. 54 ” 55 (1880) 100 U.S. 339 (347) (1948) 334 U.S. 1
be quashed) if the accused succeeds to establish that, the method of trial or the judicial strategy devised to reach the verdict was bad of the „equal protection clause‟. It is interesting to note that, in the case of Budhan v. State of Bihar^56 , the Supreme Court of India taking inspiration from the decisions rendered by the United States Supreme Court held that, any „State Action‟- executive, legislative or judicial, which contravenes or is in conflict with Article 14 of the Constitution of India, 1950 is void. Needless to say, Article 14 of the Constitution of India, 1950 is based on lines verbatim qua the „equal protection clause‟ of the American Constitution. In the case of Mahendra v. State of U.P.^57 , it was held that, the courts like any other organ of the „State‟ are limited by the mandatory provisions of the Constitution of India, 1950, and they cannot be allowed to override the fundamental rights under the shield that they have within their jurisdiction, the right to make erroneous decisions. The jurisdiction of a court is limited by the Suprema Lex (the Constitution); it cannot, henceforth, have the jurisdiction to decide a case, contrary to the provisions of the Constitution. Where a decision contravenes a fundamental right, it is not merely a case of wrongful decision; for a decision that attempts to override the constitutional limitations is without jurisdiction and is a nullity.^58 The fundamental premise can thus be stated as follows: “ If the decision of a court is intra-vires in the legal sense of being within the jurisdiction conferred by a statute, it may be legally valid; but when it contravenes a fundamental right guaranteed by a written Constitution, it becomes constitutionally invalid. ”^59
In Rupa Ashok Hurra v. Ashok Hurra^60 , the Apex Court affirmatively ruled that, no judicial proceeding could be inferred to have been violating the fundamental rights contained in Part III of the Constitution of India, 1950. The task of the superior courts of justice as the custodians of the Constitution is to protect the fundamental rights of the citizens from State transgressions. It was emphasised that, the superior courts of justice do not fall within the ambit of „State‟ or „other authorities‟ vis-à-vis Article 12 of the Constitution of India, 1950.
(^56) AIR 1955 SC 191 (^57) (1963) Supp. 1 SCR 912 (930) (^58) In the case of A.G. v. Lachmi , AIR 1986 SC 467 (468), a Three-Judge Bench of the Supreme Court of India allowed a joint petition and quashed the judicial order of the Rajasthan High Court which had directed a death sentence to be executed by “public hanging”, on the ground, inter alia, that such a direction is violative of Article 21 of the Constitution of India, 1950. 59 See: Rogers v. Richmond , (1961) 365 U.S. 534; See also: A.R. Antulay v. R.S. Nayak , AIR 1988 SC 1531, in this case a Seven-Judge Bench of the Supreme Court of India held that, a judicial order which violates a fundamental right is without jurisdiction, and therefore is a nullity and may be rectified by the superior court which passed that order, in exercise of its inherent jurisdiction. 60 AIR 2002 SC 1771
authorities”. Further in the case of, State of Bihar v. Bal Mukund^64 , it was held that, the High Court is an „authority‟ within the purport of Article 12 of the Constitution of India, 1950, and its administrative decision is amenable to its writ jurisdiction on the judicial side. Observations made in the case of Rajasthan State Electricity Board v. Mohan Lal^65 , are trite and they still hold the ground. In this case it was held that, the expression „other authorities‟ appearing in Article 12 of the Constitution of India, 1950 need not be construed ejusdem generis. It was further observed that, the definition of „State‟ in Article 12 of the Constitution of India, 1950, is not exhaustive. Based on the jurisprudential analysis of Article 12 pursuant to this case, scholars in the likes of Dr. Durga Das Basu observed that, there appears no reason as to why the „judicial organ‟ of the State be excluded from the ambit of Article 12 merely because it expressly mentions only the Executive and the Legislative branches.
In the recent case of, Riju Prasad v. State of Assam^66 , the Supreme Court of India, clearing the air qua the controversy as to whether or not, judiciary falls within the purport of Article 12 of the Constitution of India, 1950, held as follows: “ The definition of ‘the State’ under Article 12 is contextual depending upon all relevant facts including the concerned provisions of Part III of the Constitution. The definition is clearly inclusive and not exhaustive. Hence, omission of judiciary when the Government and Parliament of India as well as Government and Legislature of each State has been included is conspicuous but not conclusive that judiciary must be excluded. ”
Quasi-Judicial Authorities: It is a settled law that, an administrative tribunal is a limb of the Executive; but because it is obliged to „hear‟ before it „decides‟, it has some “trappings of the court”; but, such an obligation cannot bring it up to the status of a court, in all respects.^67 It is because of the fact that, an administrative tribunal is not a court, it is called quasi-judicial. Being a limb of the Executive, it comes clearly within the periphery of Article 12 of the Constitution of India, 1950. In the case of, Kamala Mills v. State of Bombay^68 , the Apex Court held that, if a quasi-judicial body acts under an ultra-vires law or, outside its jurisdiction or, ignores the mandatory rules of procedure prescribed under the relevant law (for time being in force) or, infringes the principles of natural justice and thereby affects the fundamental rights, then its action can be quashed by the Court of Law. Deliberating further,
(^64) AIR 2000 SC 1296: (2000) 4 SCC 640 (^65) (1967) 1 SCR 377 (385) (^66) 2015 SCC Online SC 613 (Para 60) (^67) See: Shell Co. v. Federal Commissioner of Taxation , (1930) AC 275 (296, 298) (^68) AIR 1965 SC 1942: (1966) 1 SCR 64
the Constitution Bench of the Supreme Court of India, in the case of, Sitaram v. Union of India^69 , purposively held that, an act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if: it is in conflict with the Suprema Lex (the Constitution); or, the Governing Act; or, the general principles of the law of the land; or, it is so arbitrary or unreasonable that no „fair-minded‟ authority could have ever made it. Thus, quasi-judicial authorities come within the ambit of Article 12 of the Constitution of India, 1950, and hence their acts vis-à-vis decisions attain legitimacy only if they are able to withstand the test of fundamental rights, that is, if their acts vis-à-vis decisions do not infringe the fundamental rights conferred upon the citizens of the country.
Chapter IV: Can the State claim ‘fundamental rights’ for itself?
In the case of State of West Bengal v. Union of India^70 , it was observed that, „fundamental rights‟ are primarily for the protection of the rights of individuals and corporations, and are enforceable against executive actions and/or legislative actions of the government agency. However, it is essential to remember that all pre-existing laws, which are inconsistent with, and all post-constitutional laws which contravene (or prohibit) the fundamental rights, to the extent of inconsistency or contravention are void. Some of the fundamental rights declared are in a positive form, but are subject to reasonable restrictions, thus, authorising the State to make laws derogatory qua the fullness of the protection [For example: Article 15 (4); Article 16 (3) to Article 16 (5); Article 19 (2) to Article 19 (6); Article 22 (3); Article 22 (6); Article 23 (2); Article 25 (2); Article 28 (2) and Article 28 (3)]. Also, there are certain Articles which merely declare rights [For example: Article 17; Article 25 (1); Article 26; Article 29 (1); and Article 30 (1)] and there are others which prohibit them without reference to the right of the person, body or agency which are to enforce them [For example: Article 18 (1); Article 23 (1), Article 24; and Article 28 (1)].
The Apex court, in the present case, deliberated that it is trite to say that rights declared in the form of prohibition must have a concomitant positive content, for without such positive content they could be worthless. It is important to note that there are Articles in the Suprema Lex (the Constitution of India, 1950) which are not in the form of rights but are rather in the form of fundamental disabilities [For example: Article 18 (2) to Article 18 (4)]. The principal
(^69) (1990) 3 SCC 223 (Para 52) (^70) (1964) 1 SCR 371: 1963 BLJR 675: AIR 1963 SC 1241
regards to, protection not to be conferred qua the acquisition of property belonging to the States (that is, to the destructible units of the indestructible Union).
No doubt Article 31 of the Constitution of India, 1950 stands omitted by virtue of Section 6 of the Constitution (Forty Fourth Amendment) Act, 1978 (with effect from: 20-06-1979), but the observations made in this case, State of West Bengal v. Union of India (supra) are far reaching, especially in light of the facts recognising existence of fundamental rights qua the State.
Apart from this, in the case of Election Commissioner v. State of Haryana^71 , it was held that where a State (State Government) is affected by an order of an independent public body, for example, the Election Commission, to which Article 131 has no application, the State (State Government) can file a writ petition under Article 226 of the Constitution of India, 1950. In the case of, Corporation of Nagpur v. N.E.L. & P. Co.^72 , it was held that, a local authority having a legal grievance can in certain cases take out a writ petition. In this case, a writ was issued on the petition of a local authority against a public utility concern, for the latter‟s failure to honour its statutory obligation, that is, to supply power to the local authority (consumer).
Moreover, in limited sense of the term, the State through Parliament can exercise powers conferred onto it by virtue of Article 33 and Article 34 of the Constitution of India, 1950. Exceptions to fundamental rights, as contained in Article 33 and Article 34 of the Constitution of India, 1950, can be seen in a narrow sense of the term, from the standpoint of the power that vests with the State (Parliament) to the extent circumscribed by Article 33 and Article 34 of the Constitution of India, 1950. Article 33 equips the Parliament to make laws to restrict the rights conferred by Part III of the Constitution of India, 1950, in application to the Members of the Armed Forces, Members of Forces charged with the maintenance of public peace and order, and in regards to persons employed in any organisation established by the State for the purposes of intelligence or counter-intelligence; the purpose behind this Article is to administer discipline among the Members of Armed Forces, Intelligence and Counter-Intelligence.^73 By virtue of Article 34, power is conferred onto the Parliament: (a) to
(^71) (1984) Supp. SCC 104: AIR 1984 SC 1406 (^72) AIR 1985 Bom 498 (^73) In the case of Prithi Pal Singh Bedi (Lt. Col.) v. Union of India , AIR 1982 SC 1413: (1982) 3 SCC 140: 1982 SCC (Cri) 642 (Paragraphs 13-18), it was held that, a law passed by virtue of Article 33 can override Articles 21 and 22 of the Constitution of India, 1950.
indemnify any person in respect of acts done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law is in force; and (b) to validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area. The opening words of Article 34 are as follows: “ Notwithstanding anything in the foregoing provisions of this Part… ”, this means that, the power to indemnify conferred on Parliament by this Article is exercisable in relation to acts in derogation of the fundamental rights enumerated in Part III of the Constitution of India,
1950.^74 The power the Parliament enjoys under this Article is subject to the following conditions: (a) the act done must be in connection with the maintenance or restoration of order, and (b) martial law must be in force in the area where the act was done. This Article is an exception to the foregoing provisions of Part III of the Constitution of India, 1950. Article 34 uses the term “martial law” without defining it. As per Dr. Durga Das Basu, the term “martial law”, as used in Article 34, is being used in the sense of “a condition of affairs” rather than a „code of rules‟ which arise from a state of war, insurrection or rebellion in any part of the country. When such situations of war, insurrection or rebellion entail, necessary force may be used to restore peace, order and security; this force as such used is “martial law”. Three questions which Article 34 fails to answer are as follows: (a) Who can proclaim the martial law; (b) Do the general powers of the executive include the power to proclaim martial law; (c) If martial law can come into existence without proclamation by the Parliament, can the Indemnity Act be challenged in the court on the ground that the state of affairs did not justify the coming into force of martial law. Martial law as such has not been invoked in India, since the commencement of the Constitution.
Comment: The argument that the fundamental rights are claimed against the State, and the State itself cannot be the beneficiary qua these rights, is meritorious and it finds explicit mention in one of the decisions rendered by the West German Constitutional Court. The West German Constitutional Court in that case, affirmatively held that: “ The basic rights, according to their nature, were intended to protect the sphere of freedoms of the individuals against encroachments by the State authority. Consequently, the State cannot be at one and
Article 33 empowers the Parliament to restrict (or abrogate) the application of fundamental rights in relation to Armed Forces, Para-Military Forces and the Police. See: Achudan v. Union of India , (1976) 2 SCC 780; Gopal v. 74 Union of India , AIR 1987 SC 413. In the case of, A.D.M. Jabalpur v. S.S. Shukla , AIR 1976 SC 1207: (1976) 2 SCC 521: 1976 Cri LJ 945 (Para 535), it was held that, Article 34 of the Constitution of India, 1950, is primarily concerned with granting indemnity by law in respect of acts done during the operation of martial law. The Constitution does not have a provision authorising proclamation of martial law. Declaration of martial law does not ipso facto result in suspension of the writ of habeas corpus.
