Constitutional Law

Nature and Scope of State

Article 12. Defination. – In this part, unless the context otherwise requires, “the state”
includes the Government and Parliament of India 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.
The article discusses the concept of state under article 12. As we all know that Part III of the
Indian Constitution guarantees fundamental rights to all its citizens. It is the established fact
that these fundamental rights can only be claimed against the State and the authorities of state
but not against any private body or individual. Thereby, the question of what constitutes the
State is important.

Therefore, unless specified, the State includes.

1. Government
2. Parliament of India
3. The Legislature of each state
4. Other authorities

GOVERNMENT AND PARLIAMENT OF INDIA

This means the Executive and Legislature of the country. They come under the scope of
‘state’ as whenever there is a bill passed in the Parliament, which after the Parliament gives
its assent, becomes an act. And if that law by any chance infringes the right of the citizen(s)
he can file for the infringement of his fundamental rights.

GOVERNMENT AND LEGISLATURE OF THE STATE

This means if there is an infringement of the right(s) of any individual due to any law or act
passed by the state. Then the same is safeguarded under Fundamental Rights.

Whether Judiciary is part of State?

Naresh Shridhar Mirajkar vs. State of Maharashtra (1966)
Summary of Facts:
China Cotton Exporters, of which Mr. Thackersey was a partner, had obtained licences for
import of art silk yarn on condition that the same would be sold to handloom weavers only. In
order to sell the said silk yarn in the black market with a view to realise higher profits, three
bogus handloom factories were created on paper. Bhaichand G. Goda was alleged to have
been the guarantor in respect of the transactions. During the course of the trial, the said
Bhaichand Goda was called as a defence witness. In the witness-box, Mr. Goda feigned
complete ignorance of the said transactions; and under protection given to him by the learned
Judge who was trying the action, he repudiated every one of the allegations he had made
against Mr. Thackersey’s concern. Thereupon, Mr. Karanjia applied for permission to cross-
examine Mr. Goda and the said permission was granted by the learned Judge. On Friday, the
23rd October, 1964, Mr. Goda stepped into the witness-box and on that occasion he moved
the learned Judge that the latter should protect him against his evidence being reported in the
press. He stated that the publication in the press of his earlier evidence had caused loss to him
in business; and so, he desired that the evidence which he had been recalled to give should
not be published in the papers. The learned Judge orally directed that the evidence of Mr.
Goda should not be published. The learned Judge then told the counsel for Mr. Karanjia that
‘Blitz’ should be told not to publish reports of Mr. Goda’s evidence.

Issues before the Court:

The question which arises from the above facts is whether a judicial order passed by the High
Court prohibiting the publication in newspapers of evidence given by a witness pending the
hearing of the suit, is amenable to be corrected by a writ of certiorari issued by the Supreme
Court under Art. 32 (2). This question has two broad facets:
a)      Does the impugned order violate the fundamental rights of the petitioners under Art.
19(1) (a), (d) and (g);
b)      If it does, is it amenable to the writ jurisdiction of the Supreme Court under Art. 32 (2)?
Majority Judgment:
Regarding the first question of law, it was held that the argument that the impugned order
affects the fundamental rights of the petitioners under Art. 19(1), is based on a complete
misconception about the true nature and character of judicial process and of judicial
decisions. It is singularly inappropriate to assume that a judicial decision pronounced by a
Judge of competent jurisdiction in or in relation to a matter brought before him for
adjudication can affect the fundamental rights of the citizens under Art. 19(1). Just as an
order passed by the court on the merits of the dispute before it can be challenged only in
appeal and cannot be said to contravene the fundamental rights of the litigants before the
Court, so could the impugned order be challenged in appeal under Art. 136 of the
Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The
character of the judicial order remains the same whether it is passed in a matter directly in
issue between the parties, or is passed incidentally to make the adjudication of the dispute
between the parties fair and effective.
Regarding the second question of law, if a judicial order made by the High Court binds
strangers, the strangers may challenge the order by taking appropriate proceedings in appeal
under Art. 136. It would, however, not be open to them to invoke the jurisdiction of this
Court under Art. 32. The impugned order is passed in exercise of the inherent jurisdiction of
the Court and its validity is not open to be challenged by writ proceedings.  It was also held
that the High Court is a superior Court of Record and under Art. 215, shall have all powers of
such a Court of Record including the power to punish contempt of itself. One distinguishing
characteristic of such superior courts is that they are entitled to consider questions of their
jurisdiction raised before them. So far as the jurisdiction of the Supreme Court to issue writs
of certiorari is concerned, it is impossible to accept the argument of the petitioners that
judicial orders passed by High Courts in or in relation to proceedings pending before them,
are amenable to be corrected by exercise of the said jurisdiction.
A.R. Antulay v. R.S. Nayak
Facts
This is a case between a Chief Minister whose fundamental right has been violated, and a
person with political affiliation, where the Supreme court gave the landmark judgment stating
that the directions given by the court breached Section 7(1) of the Criminal Law
(Amendment) Act, 1952 and was violative of Fundamental Rights of the appellant under
Article 14 and 21 of the constitution.
Issues
1. Whether the directions given by the court in February 1984, breach Section 7(1) of
the act of 1952?
2. Whether the decision is violative of Articles 14 and 21 of the Constitution?
Judgment
 The court stated that the transfer of criminal cases and the Supreme Court to transfer cases
and appeals are given under Section 406 of the Criminal Procedure Code. The law provides
that the court may direct any particular case or appeal from one High court to another High
court or from a subordinate Criminal court to a High court or a subordinate Criminal court to
one High court to another Criminal court of equal or upper-level jurisdiction to another High
court. Similarly, Section 407 of the Criminal Procedure Code deals with the power of the
High court to transfer cases.

LOCAL AUTHORITIES
The expression “local authority” under Article 12 can be referred to a unit of local self-
government:
 Municipality
 Village Panchayat
 Gram Sabha, etc.
 In the instant case, reference made to the definition of local authority according to
section 3(31) of the General Clauses Act, which defines the “local authorities” as a
municipality, district board, a body of port chiefs or other legal authorities which are
legitimately entitled to, or endowed by the government with all the control of such
attributed bodies. All these authorities are made through a statute. Hence any by-laws
or any rule and regulations made by these bodies come under the ambit of
Fundamental Rights.
 Riju Prasad Sarma etc. etc. v. State of Assam & Ors.
FACTS: -
The Plea of the petitioner, in the present matter, is that no doubt fundamental rights under
Articles 14 and 15 are guaranteed only against State action and not against private
customs or practices but Judiciary is as much a part of State as the Executive and the
Legislature and hence it cannot permit perpetuation of discrimination in violation of
Article 14. In the said writ petition, the challenge was to the election of Dolois (head
priest of the temple) held on 16.11.2011. The only ground urged on behalf of the
petitioners was denial of equality under Article 14 of the Constitution while the
respondents have argued that for the purpose of part III of the Constitution Article 12
defines the term “the State” to include the Government as well as Parliament of India as
well as Government and legislature of the States but conspicuously it has left out the
Judiciary and hence the Judiciary cannot be included and treated as ‘the State’ when it
performs strictly judicial functions in contradistinction to administrative powers.
ISSUE: -
Whether, for the purpose of issuance of writs, judicial decisions by the judiciary can be
included in the State action?
HELD:-
The Court held that the judiciary in India, acting on its judicial side cannot be considered
as a State under Article 12 of the Constitution, and that only when the Courts deal with
their employees or act in other matters purely in administrative capacity, they may fall
within the definition of the State for attracting writ jurisdiction. The Court also ruled that
writs against the judiciary would lie against their administrative actions alone.
Union of India & others v. R.C. Jain AIR 1981 SC 951
Facts:
The employees of Delhi Development Authority had been getting bonus paid to them till
1973-74. The Ministry of Law advised that DDA is  ‘local authority’ under the Payment
of Bonus Act, 1965 which had excluded any authority under the Government or any local
authority.
The problem was if DDA was proved to be a local authority, the ‘Payment of Bonus Act’
would be applicapble on the employees of DDA and they would not have got bonuses.
The fear of employees came out to be true and DDA was held to be a local authority and
they were denied the payment of Bonus.
Since, the definition of ‘local authority’ was not given in the Payment Bonus act, the
definition was looked In the general clause act. The definition of ‘Local authority’, as per
general clauses act is that, it means, a Municipal Committee. The court thus in this case
compared DDA with a Municipal Committee.
Issue:
Whether DDA is a ‘local authority’?
Observations of the Court:
Court observed the characteristics of a ‘Local authority’ with reference to Municipal
Committee or – the conditions, which were accepted in this case, for being a local
authority. (all were satisfied by DDA)
1. The authority must have separate legal existence.
2. The authority must not be mere Governmental agency but must be legally
independent entity.
3. They must function in a defined area. The members of the authority must be elected
wholly or partly by the inhabitants of the area.
4. The authority must be entrusted by a Statute with such Governmental functions &
duties as are usually entrusted to municipal bodies, e.g. providing amenities to the
inhabitants of the locality.
5. Authority is given power to make regulations.
6. The authority must have the power to raise funds for the activities by levying taxes,
rates, charges, or fees.
7. The control/management of such fund must vest in the authority.
8. The control/management of such fund must vest in the authority.

OTHER AUTHORITIES

The interpretation of “other authorities” in Article 12 has caused a good amount of

difficulty with constant changes which has undergone judicial opinions. Today’s
government perform major functions because of the developed philosophy of social
welfare. It sometimes acts through a natural person and the other times as a juridical
person.

So, wider the meaning of the term, more the coverage can be brought to the attributed
term which gradually led to disputes. As there has been no clear explanation of the phrase
in the Constitution and therefore its interpretation is entirely left on the Court

Other Authorities could only mean authorities exercising governmental or sovereign

powers and functions. On this interpretation, the expression, “other authorities” would
only include such bodies as are functioning for or on behalf of the central or state
governments.

The restricted interpretation of of the expression “other authorities” was however rejected
by the supreme court. It held that the doctrine of ejusdem generis is inapplicable to the
interpretation of the expression other authorities

In Electricity Board Rajasthan SEB V. Mohan Lal, the supreme court held that other
authorities would include all authorities created by the constitution or statute on whom
powers are conferred by law. It was not necessary that the statutory authority should be
engaged in performing governmental or sovereign functions. In support the court cited
articles 19(1)(g) and 298 which contemplate engagement of the state in trade or business
and article 46 which requires the state to promote educational and economic interests of
the weaker sections of the society. In these cases, other authorities would include bodies
created for the purpose of performing commercial activities or for promoting the
educational and economic interest of weaker sections of people.

Later in Sukhdev Singh V Bhagatram Sardar Singh Raghuvanshi the court had to deal
with the question whether statutory cooperation such as ONGC, IFC and LIC created
respectively came within the definition of the state. By a majority of 4 to 1 the court held
that the 3 corporations were state. Following the Rajasthan Electricity Case , majority
led by Ray CJ held that 3 corporations were created by statutes, and had the statutory
power to make binding rules and regulations and were subject to pervasive government
control. They were therefore , other authorities within the meaning of article 12. Satutory
Corporations are agencies or instrumentalities of the state for carrying on trade or
business which otherwise would have been carried out by a state departmentally.
Therefore, it must be seen whether a body is acting as an agency or instrumentality of the
state. State financial support plus an unsual degree of control over the management and
politics could be one of the indicator of the character of body.

Mathew J’s approach in the Sukhdev Singh case whether a body is an instrumentality or
agency of the government was reiterated with the approval in Ramana Dayaram Shetty
V. International Airport Authority of India for coming to the conclusion that
International Airport Authority is a State. Bhagwati J pointed out that the corporations
acting as instrumentalities of government would obviously be subjected to same
limitations in the field of constitutional or administrative law as the government itself,
though in the eyes of law they would be distinct and independent legal entities. Without
being exhaustive, he discussed in detail various factors relevant for determining whether a
body is an instrumentality or agency of the state. These factors as they were finally
summarised by him in Ajay Hasia V Khalid Mujib Sehravardi
 If the entire share capital is held by the government then it can be reasonably inferred
that the corporation is a state controlled entity.
 If the financial assistance of the state is so much that it meets the entire expenditure of
the corporation, it would mean that the entity is a state controlled organization.
 If the corporation enjoys a state conferred monopoly
 Existence of deep and pervasive state control is another indication of state control
 The functions performed by the corporation is also an indication of the corporation
being an instrumentality of the state, that is if the corporation performs public
functions or closely related to government functions, it would be considered an
instrumentality of the state.
If on consideration of these factors it is found that the corporation is an instrumentality or
agency of government, it would be an authority and therefore the state within the meaning
of article 12. But these tests are not conclusive or clinching and it must be realised that
they would not be stretched so far as to bring in every autonomous body which has some
nexus with government within the sweep of the expression the state.
In this straight line of cases , Sabhajit Tewary V Union Of India decided along with
Sukhdev Singh V Bhagatram Sardar Singh Raghuvanshi by the same bench of supreme
court was the oly which stood apart as it held that the council of scientific and industril
research a society registered under the societies registration act 1860 was not state within
the meaning of article 12. This case was analysed and distinguished in the subsequent
cases and in view of the fact that in several subsequent decisions registered societies have
been held the state , it stands impliedly overeruled. Following the development in the
concept of the state since sabhajit in Pradeep Kumar Biswas V. Indian Institute of
Chemical Biology, the court expressly overruled it restating the law in the following
words.
The picture that ultimately emerges is that tests formulated in Ajay Hasia was not rigid
set of principles so that if a body falls in one of them it must ex hypothesi, be considered
state within the meaning of article 12. The question in each case would be whether in the
light of the cumulative facts as established, the body is financially, functionally and
administratively dominated by or under the control of the government.
Accordingly, no general rule of presumption may be drawn that registered societies
having some nexus with the government are always the state.

Again, in Zee Telefilms Ltd V. Union of India, the court held by the majority of 3 to
2declined to accept BBCI a society registered under the Tamil Nadu Societies registration
act 1975 as the state under article 12.
Although the majority followed Pradeep Biswas and other cases on agency or
instrumentality test and also recognized that some of the fundamental rights are available
even against “non state actions including individuals”. It concluded that relief against the
BCCI could be available in high courts under article 226, but not in supreme court under
article 32. Minority in this case emphasised on the functions test and even pleaded for the
Rejection of agency or instrumentality test. Even though exclusion of BCCI from the
definition of the state has not yet been disturbed by the court, following the function test
laid down in the earlier cases starting with Sukhdev Singh the court without overruling
Zee Telefilms has emphasised on the nature of duties and functions on which the minority
relied in Zee Telefilms.
Political Parties – Political parties are not covered within the meaning of state and
therefore no writ can be issued to them by supreme court in article 32 or even by high
court under article 226.
Authorities under government control- The words “under the control of the
government of India”, in article 12 are meant to bring in to the definition of state not only
every authority within the territory of India, but also those functioning abroad, provided
such authorities are under the control of government of India. Thus, a person can enforce
fundamental rights against an executive or administrative order of an authority under the
control of the government of India, functioning outside the territory of India.
Article 13 Laws inconsistent with or in derogation of the fundamental rights-
(1) All laws in force in the territory of India immediately before the commencement of
the constitution, in so far as they are inconsistent with the provisions of this part,
shall, to the extent of such inconsistency be void.
(2) The state shall not make any law which takes away or abridge the rights conferred by
this part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
Article 13 expressly lays down what otherwise would have been implies ie the supremacy
of fundamental rights over any other law in case of inconsistency between the two. Thus
for example, pre- constitution laws shall be invalid only to the extent they fall withi the
category of “laws in force”. As uncodified personal laws do not fall within the category, it
could be argued that they were not intended to become invalid on the ground of any
inconsistency with the fundamental rights.

Clause (1)

Existing laws
Clause (1) deals with pre constitutional or existing laws ie the laws which were in force at
the time of the commencement of the constitution. Under clause (1) all laws in force,
insofar as they are inconsistent with the fundamental rights, shall, to extent of
inconsistency, become void from the date of the commencement of the constitution. But
they become void only after the court hols them inconsistent with the fundamental rights.
So long as the courts do not hold them to be so, they shall continue to remain in force.
In applying the rule embodied in clause (1) , the following principles of interpretation
should be noted:-
1. Non retrospective effect- The provisions of the constitution relating to the
fundamental rights have no retrospective effect. All inconsistent existing laws,
therefore become void only from the commencement of the constitution in pursuance
or in contravention of the provisions of any law, which after the commencement of
constitution become void because of inconsistency with the fundamental rights, are
not affected. The inconsistent law is not wiped out so far as the past acts are
concerned.
Keshavan Madhava Menon V. State of Bombay
In this case proceedings had been started against the appealant for an offence punishable
under section18, Press ( Emergency Powers ) Act, 1931, in respect of a pamphlet
published in 1949. It was contended on behalf of the appellant that the act was
inconsistent with the fundamental rights conferred by the constitution, and, therefore it
had become void under article 13 (1) after 26 January 1950. For that reason the
proceeding could not ne continued. The supreme court rejected this contention and held
that article 13 (1) had no retrospective effect.
Das J said:
Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws,
or to wipe them out altogether from the statute- book, for to do so will be to give them
[fundamental right] retrospective effect which, we have said, they do not possess. Such
laws exist for all past transactions and for all rights and liabilities accured before the the
date of the constitution.
The rule of severability- Article 13 does not make an entire act inoperative, it makes
inoperative only such provisions of it as are inconsistent with or violative of fundamental
rights.
State of Bombay V. F.N. Balsara
In this case eight sections of the Bombay prohibition act, 1949 were held ultra vires on
the ground that they infringed fundamental rights of the citizens. But the act,minus the
invalid provisions, was allowed to stand. The court said, “The decision declaring some of
the provisions of the act to be invalid does not effect the validity of the act as it remains.”
The rule that the invalidity is only to extent of inconsistency is not peculiar to article 13,
but is a general principle of statutory interpretation. The power of the court to strike out
invalid provisions of an act must not be exercised beyond the necessity of the case. But a
clarification to this principle is notable. Sometimes valid and invalid portions of the act
are so intertwined that they cannot be separated from one another. In such cases, the
invalidity of the portion must result in the invalidity of the act in its entirety. The reason is
that what remains valid