Site Loader
Concept of State under Article 12

 

Concept of State under Article 12

Examine the concept of ‘State’ provided under Article 12 of the Constitution of India?

The word ‘State’ has been defined under Article 12 of the Indian Constitution for the purpose of part-3 and part-4. Concept of State under Article 12 of the constitution as follows:-

“In this part, unless the context otherwise requires but ‘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”

As per Article 12 of the Indian Constitution, the term ‘State’ includes:-

1. The government and Parliament of India:

Government means any department; parliament shall consist of The President, The House of People, and the Council of State.

2. The Government and Legislature of each State:

State Legislatures of each State consist of the governor, Legislative Council, and Legislative Assembly or any of them.Concept of State under Article 12

3. Local Authorities within the territory of India:

Authority means:

  1. Power to make rules, by-laws, regulation, notification, and statutory orders.
  2. Power to enforce them.

Local Authorities means:

Municipal boards, Panchayats, Body of port commissioners, and others legally entitled to or entrusted by the Government, Municipal or Local Fund.

4. Other Authorities: Authorities other than local authorities working:

  1. Within the territory of India or ;
  2. Outside the territory of India.


Judiciary Scrutiny:-

The judiciary has interpreted State in Different contexts at different times, as to give a wider dimension to Fundamental Rights.

1. Performance of commercial activities; or promotion of educational or economic interests:

In Rajasthan State electricity board vs Mohan Lal (AIR -1963)

Court held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It should: –

  1. Be created by the Constitution of India.
  2. Have the power to make laws.

Concept of State under Article 12

2. Performance of functions very close to governmental or sovereign functions:

In Sukhdev v. Bhagatram, (AIR-1979).

LIC, ONGC, and IFC were held to be State as performing very close to governmental and sovereign functions. The Corporations are State when they enjoy.

  1. Power to make regulations.
  2. Regulations have the force of Law.


3. Principle of Ejusdem Generis (generally means “of the same type”):

In the University of Madras vs Santa Bai,(AIR-1954).

The Madras High Court evolved the Principle of Ejusdem Generis i.e. of the like nature. It means that those authorities are covered under the expression’ other authorities which perform governmental or sovereign functions.

In Ujjain bai vs Union of India (AIR 1962 S.C.1621).

The supreme court rejected the principle of Ejusdem Generis .it is observed that there is no common Genus between the authorities mentioned in Article 12.

4. Clearance of five tests:

In the union of India vs R.C Jain, (AIR-1981).

To be a local authority, an authority must fulfil the following steps:-

  1. Separate legal exercise.
  2. Functions in a defined state.
  3. Has the power to raise funds.
  4. Enjoys autonomy.
  5. Entrusted by a statute with functions that are usually entrusted to municipalities.

5. Object of Authority:

In Ajay Hasia vs Khalid Mujib (AIR-1981).

The court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.

Therefore from the above discussion, it can be concluded that the definition of the word State as given in Article 12 is not exhaustive.

Thus, the word State as Defined in Article 12, is comprehended to include bodies created for the purposes of promoting educational and economic interests of people as now State is empowered to carry on any trade or business.

By the expressions “The Government and the Parliament of India” and “The Government and Legislature of each of the States” The Article obviously means the executive and the legislative authorities at the centre and in several States.

The inclusion of all local authorities in the definition is for the purposes of ensuring that even those who perform certain functions of Government do not contravene the Fundamental Rights of the citizens.



Whether judiciary is the state or not?

There is no express provision in Article 12, as to inclusion in or exclusion from the definition of the term ‘State’.

When the judiciary acts in its judicial capacity it is not included within the meaning of the terms “other authorities” and, therefore, and it’s not State under Article 12, but when it acts in an administrative capacity, it is included within the meaning of the term “other Authorities” and therefore, it is State.

Concept of State under Article 12

Jurists like H.M. Seervai, V.N. Shukla consider the judiciary to be the state. Their view is supported by Articles 145 and 146 of the Constitution of India.

  1. The Supreme Court is empowered to make rules for regulating the practice and procedure of Courts.
  2. The Supreme Court is empowered to make appointments of its staff and servants; decide its service conditions.

In Prem Garg vs. Excise commissioner H.P., (AR1963)SC 996,

The Supreme court held that when rulemaking power of the judiciary is concerned, it is State. Other jurists said that since the judiciary has not been specifically mentioned in Artice 12, it is not State.

In Rati Lal vs. State of Bombay (AIR 1954),

The court held that the judiciary is not State for the purpose of Article-12.

In Rupa Ashok Hurra vs Ashok Hurra,

The supreme court has held that the superior court of justice does not fall within the ambit of state or other authorities under Article 12 of the Indian Constitution.


Conclusion:-

As per the above discussion of the concept of ‘State’ under article 12. The word ‘State’ has been interpreted by the courts according to the changing times. It has attained wider meaning as per the changing times which ensures that Part-3 can be applied to a larger extent.


Read more Articles [Links below]:-

Define Torts and its essential elements

The Legal maxims with case Laws in India – Elaborate some

Doctrine of Eclipse and Severability in Indian constitution – India 2021

 

Post Author: VR

2 Replies to “Concept of State under Article 12 of the Constitution of India”

Leave a Reply

Your email address will not be published. Required fields are marked *