Tests For ‘Other Authorities’ To Be Considered ‘State’ Under Article 12 Of The Constitution

KEY TAKEAWAYS

• Article 12 of the Constitution provides with the definition of State.
• It consists of the term “other authorities” which has not been clearly defined in the Constitution.
• Such term has also not been defined in the General Clauses Act, 1897.
• The Supreme Court is the final interpreter of the Constitution.
• In the case of University of Madras v. Santa Bai, the Supreme Court took assistance of ‘ejusdem generis’ to interpret the term.
• In the case of Ujjam Bai v. State of U.P., the Court interpreted the term more liberally.
• In the case of Ramana Dayaram Shetty v. The International Airport Authority of India, the Court enlisted five tests to determine if an agency or a body is an instrumentality of the State.

INTRODUCTION

The Constitution of India is the law of the land. It prescribes the judicial system, the parliamentary system, and the laws which all other formulated laws must adhere to, lest they should be declared as void and inoperative in India. The Constitution also guarantees the citizens of India, certain fundamental rights, the breach of which enables them to approach the Supreme Court to enforce them. The Fundamental rights, a group of rights guaranteed to all the citizens of the nation by the Constitution of India under Part III universally to all citizens residing in the nation, irrespective of their race, place of birth, religion, caste or gender and cannot be violated by the Government. These fundamental rights cannot be enforceable against individuals and private entities. The Constitution has entrusted the government or the state or its authorities to protect such rights of the citizens and have prescribed the remedy of approaching the High Courts of the states under Article 226 and the Supreme Court under Article 32 in order to enforce them. India.

Article 12 of the Constitution defines State as “Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government 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 definition in Article 12 is only for the purpose of application of the provisions contained in Part III, i.e., a writ under Article 226 may lie on a body not falling under the ambit of the definition of State on non-constitutional grounds or on grounds of contravention of some provision of the Constitution outside Part III.

OTHER AUTHORITIES

The term “Authority” is explained in the Webster’s Dictionary as “a person or body exercising power to command.” Authorities have also been known enforce obedience and having administrative power and control. In the context of Article 12 of the Constitution of India, authority means the power of an individual, office or organization to make laws, orders, regulations, bye-laws, notifications, etc. Law also gives such authorities to enforce such laws, orders, etc.

The term ‘other authorities’ in Article 12 has not been defined either in the Constitution of India or in the General Clauses Act, 1897 or in any other statute in operation in India. This gives the Judicial bodies the freedom to interpret the scope of the word and has, on many occasions, differed from their own opinion of interpretation.

Restricted interpretation

‘Ejusdem generis’ is a Latin expression which means of the same kind. According to the rule of ejusdem generis of the interpretation of statutes, when particular words pertaining to a class, category or genus are followed by general words, they are construed as limited to the things of the same kind as those specified.

The term “other authorities” have been used in the definition of State, as being preceded by words such as the Government, the Parliament of India, the Government and the Legislature of each of the States and local authorities. Thus, other authorities could only indicate authorities of a like nature. This was held in the case of University of Madras v. Santa Bai, that a University, unless ‘maintained by a State’ could not be classified as other authorities since it derives its meaning from the preceding words as is mentioned in the law of the land. It could only be interpreted as authorities exercising governmental or sovereign functions.

Liberal Interpretation

In the case of Ujjam Bai v. State of U.P., the contention of the Madras High Court was rejected to hold that the rule of ejusdem generis cannot be resorted to while interpreting the term other authorities since the preceding words, Government, Parliament, Legislature, etc., do not have a common genus running through these bodies so that they could be placed in a single category on a rational basis.

The Supreme Court held in the case of Electricity Board, Rajasthan v. Mohan Lal, that the term ‘other authorities’ is wide enough to include all the authorities created by the Constitution and on whom powers were conferred by law. The statutory authority so coming under this purview need not be essentially engaged in performing sovereign or government functions. In the instant case, the Rajasthan Electricity Board would come under the ambit of the wide sense of the ‘other authorities.’ Thus, the test for ascertaining if a body falls under the ‘other authorities,’ the body should either be created by a statute, or it is under the control of the government.

The Supreme Court followed its own ruling of the Rajasthan Electricity Board case to hold that the Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation are all authorities under the meaning of Article 12, in the case Sukhdev Singh v. Bhagatram. It was held that such bodies have the power to make regulations in their statute concerning various issues, including the terms of service of the employees so appointed.

In a concurring judgement, Mathew J. preferred a broader test for ascertaining the ambit of Article 12 of the Constitution and that if the bodies are of public importance and are closely related to the functions disposed by the Government, they should be treated as an instrumentality of the Government, and therefore be considered as a State within the meaning of the Article.

Broader Interpretation

As suggested by Mathew J., Bhagwati J. attempted to enlist five tests to determine if a body or agency is an instrumentality of the State in the case of Ramana Dayaram Shetty v. The International Airport Authority of India.

In this case, the Supreme Court held that if a body is an agency or instrumentality of government, it may be an authority within the meaning of Article 12, irrespective of whether it is a statutory corporation, a government company or a registered society. Therefore, the International Airport Authority of India, since created by an Act of Parliament, is a State within the meaning of Article 12.

The following tests were determined by the Court to be used in an illustrative sense to determine if a body or agency is an instrumentality of the government:

1. Financial resources of the State is the chief funding source of such body, i.e., the entire share capital of the corporation is held by the government.
2. Existence of a deep and pervasive nature of State control.
3. The functions disposed by such body or agency are of public importance and very closely related to government functions. That means, such functions should be governmental in its essence.
4. A department of Government transferred to a corporation.
5. The status of the agency, whether monopoly, and is conferred so and protected by the State.

In the case of Som Prakash v. Union of India, the Court applied this test to determine that Bharat Petroleum Corporation, a government company, fell within the meaning of State under Article 12 since it includes all constitutional or statutory authorities on whom the power and protection of the State was conferred in order for them to promote economic activities and for executing commercial activities.

In the case of Star Enterprises v. C.T.D.C. of Maharashtra Ltd., it was held that the dealings with the citizens of India cannot be arbitrary for a government company under the provisions of Section 617 of the Companies Act, which is considered as a State under Article 12 of the Constitution.

In the case of U.P. Warehousing Corporation v. Vijay Narain, it was held that the employees of the U.P. Warehousing Corporation had a statutory status and can resort to filing of writ under the circumstances of their wrongful or unjustified dismissal, since such body was created under a statute and is controlled by the State Government, thereby making it an instrumentality of the Government.

In the case of Ajay Hasia v. Khalid Mujib, the Supreme Court held that a Society, when registered under the Societies Registration Act, 1898, is an agency or instrumentality of the State since it justifies the criterion set in the R.D. Shetty case by the Hon’ble Court. The composition of such society is determined by the government representatives and is completely governed by the government. The rules, regulations and bye-laws are put into operation after such affirmation by the Government and has the power to appoint and remove the officials and employees of such society. Thus, it falls within the meaning of ‘other authority’ and is to be considered a State under the provisions of Article 12 of the Constitution.

In the case of Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh, the Court resorted to its judgement in Ajay Hasia’s case and held that a school which was functioning on Government grants upto 90% was ‘other authority’ and it fell within the purview of ‘State’ under Article 12 of the Constitution.
The case of Workmen, Food Corporation of India v. M/s. Food Corporation of India ruled the Food Corporation of India to be a State as it was an instrumentality of the State.

In the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly, the Court held that the Central Inland Water Transport is within the meaning of “State” since it is wholly owned, managed and controlled by the Central Government. It is also the government who appoints and removes the officials and employees of such organisation. Thus, the government operates from behind a veil to dispose functions of public importance through the instrumentality if such government company.

In Tekraj Vasandi v. Union of India, it was held that since the Institute of Constitutional and Parliamentary Studies is neither an agency nor an instrumentality of the state, but a voluntary organisation, such society registered under the Societies Registration Act, 1860 is not a State within the meaning of Article 12 of the Constitution of India. It is so because the government does not have any control over such institute and the object of the society is not remotely related to government business.

In the case of Chandra Mohan Khanna v. NCERT, the Supreme Court held that even though the National Council of Educational Research and Training assisted the Ministry of Education and Social Welfare in the implementation of the governmental policies and major programmes in the field of education, it is not an instrumentality of the State since it is not related to the government functions in its essence.

In the case of B.S. Minhas v. Indian Statistical Institute, it was held that a writ petition against the Indian Statistical Institute under Article 32 of the Constitution for the violation of fundamental rights is maintainable since it is a State under Article 12. It is a body wholly owned and controlled by the Government, thus making it an instrumentality of the State.

The Children’s Aid Society, Bombay was ruled to be an instrumentality of the State in the case of Sheela Barse v. Secretary, Children’s Aid Society. It was observed that the ex-officio President of such society was the Chief Minister of the State, and the Society, registered under the Societies Registration Act, 1860, receives grants from the State thereby making it fall within the ambit of the expression “State.”

In G. Bassi Reddy v. International Crops Research Institute, the Supreme Court held that no writ petition is maintainable against such institute since it does not fall within the ambit of State. It is so because the Institute is an international organisation that has been set uo as a non-profit research and training centre but is not aided or owned or controlled by the government in any way, and is therefore, not an instrumentality of the State.

Conclusion

The Supreme Court in R.D. Shetty’s case has enlisted five criteria for ascertaining whether a body or agency is an instrumentality of the State, and subsequently, if it falls within the ambit of ‘other authorities’ as is defined by Article 12 of the Constitution. Such tests were not conclusive or exhaustive but only illustrative and has to be used by the Courts with care and caution. The various Courts has, till now, interpreted the meaning of ‘other authorities’ with relevance to such tests in various cases as have been discussed above.