Art.12 Part 1

Art.12 Part 1

FUNDAMENTAL RIGHTS (ARTICLES 12—35)

ORIGIN AND DEVELOPMENT OF FUNDAMENTAL RIGHTS

Part III of the Constitution contains a long list of fundamental rights.

This Chapter of the Constitution of India has very well been described as the Magna Carta of India.

As early as 1215 the English people exacted an assurance from King John for respect of the then ancient liberties, The Magna Carla is the evidence of their success which is a written document. The Magna Carta is the evidence of their success which is a written document.

This is the first written document relating to the fundamental rights of citizens. Thereafter from time to time the King had to accede to many rights to his subjects.

In 1689 the Bill of Rights was written consolidating all important rights and liberties of the English people.

In France Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable and sacred rights of Man.

Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and the Citizen of France, the Americans incorporated the Bill of Rights in their Constitution.

The Americans were first to give Bill of Rights a Constitutional status.

Thus, when the Constitution of India was being framed the background for the incorporation of Bill of Rights was already present.

The framers took inspiration from this and incorporated a full Chapter in the Constitution dealing with fundamental rights.

The aim of having a declaration of fundamental rights is that

certain elementary rights, such as, right to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions

and           that the shifting majority in Legislature of the country should not have a free hand in interfering with these fundamental rights.

 

WEST VIRGINIA STATE BOARD OF EDUCATION V. BARNET 319 US 624: 87 LED 1928,

In above case, Jackson, J. explaining the nature and the purpose of the Bill of Rights observed:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts.

One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote, they depend on the outcome of no elections.

 

NEED FOR FUNDAMENTAL RIGHTS

Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their government.

 

MANEKA GANDHI V. UNION OF INDIA AIR 1978 SC 597

Speaking about the importance of fundamental rights in the historic judgment of Maneka Gandhi v. Union of India AIR 1978 SC 597, Bhagwati. J., observed:

These fundamental rights represent the basic values cherished by the people of this country (India) since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.

These rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status.

The declaration of fundamental rights in the Constitution serve a reminder to the Government in power that certain liberties, assured to the people by the Constitution are to be respected.

The object behind the inclusion of the Chapter of Fundamental Rights in Indian Constitution is to establish a government of law and not of man’ a governmental system where the tyranny of majority does not oppress the minority.

In short, the object is to establish Rule of Law and it would not be wrong to say that the Indian Constitution in this respect goes much ahead than any other Constitutions of the world.

The object is not merely to provide security and equality of citizenship of the people living in this land and thereby helping the process of nation building,

but also, and not less important to provide certain standards of conduct, citizenship, justice and fair play.

 

M NAGRAJ V. UNION OF INDIA AIR 2007 SC 71

The Supreme Court ‘speaking about the importance of the fundamental rights’ held that

fundamental rights are not gift from the State to citizens.

Part 3 does not confer fundamental rights but confirm their existence and give them protection.

Individuals possess basic human rights independently of any Constitution by reason of basic fact that they are the human race.

These rights are important as they possess intrinsic values.

Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts.

 

STRIKING A BALANCE BETWEEN INDIVIDUAL LIBERTY, AND SOCIAL NEED

Absolute and unrestricted individual rights do not, and cannot exist in any modern State.

Unrestricted liberty becomes a licence and jeopardises the liberty of others.

Civil liberties as guaranteed by the Constitution

imply the existence of an organised society maintaining public order without which liberty itself would be lost in the excess of unrestrained abuses.

If people were given complete and absolute liberty without any social control the result would be ruin.

It is obvious that, if individuals are allowed to have absolute freedom of speech and action the result would be chaos, ruin and an anarchy.

On the other hand, if the State has absolute power to determine the extent of personal liberty the result would be tyranny.

Hence, the question arises as to how to make a balance between the conflicting interests of individuals and of the society and particularly in a Welfare State like ours.

The Constitution permits ‘reasonable’ restrictions to be imposed on individual’s liberties in the interest of society.

 

A.K. GOPALAN V. STATE OF MADRAS AIR 1950 SC 27

In this connection following observations of Mukherjee, J., in A.K. Gopalan v. State of Madras AIR 1950 SC 27   may be quoted.

There cannot be any such thing as absolute and uncontrolled liberty wholly freed form restraint, for that would lead to anarchy and disorder.

The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.

 

NEW JUDICIAL TREND IN INTERPRETING PROVISIONS OF PART III

1. WIDEST INTERPRETATION OF PROVISIONS OF PART III MANEKA GANDHI V. UNION OF INDIA, AIR 1978 SC 27

The Supreme Court has held that the provisions of Part III should be given widest possible interpretation.

Delivering the judgment, Bhagwati, J., said, the correct way of interpreting the provisions of Part III is that         attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content’

In Gopalan’s case, the Court had taken the view that each Article dealt with separate rights and there was no relation with each other. In other words, they were mutually exclusive.

The above view has been held to be wrong in Maneka Gandhi case where the Court has taken the view that they are not mutually exclusive but form a single scheme in the Constitution, that is they are all parts of an integrated scheme in the Constitution.

Beg. J., in his judgment said, Their waters must mix to constitute that grand flow of unimpeded and impartial justice.

Further, the Court held that to be a fundamental right it is not necessary that a right must be specifically mentioned in a particular Article. Even if it is not mentioned in any of the Articles specifically, it may be a fundamental right if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right.

The validity of a law infringing fundamental rights can be judged not only with reference to particular Article under which such a law is enacted but also with reference to other Articles

In Gopalan’s case it was held that the validity of a deprivation law enacted under Article 21 could not be tested under Article 19. This view has now been overruled in Maneka Gandhi’s case and it has been held that a law depriving a person of his personal liberty under Article 21 must also satisfy the test of reasonableness’ under Articles 14 and 19 of the Constitution.

 

2. NATURAL JUSTICE AND DUE PROCESS

In Maneka Gandhi’s case the Supreme Court has held that the procedure’ depriving a person of his ‘life or personal liberty must be just, fair and reasonable’. It must satisfy the requirement of natural justice which is an essential component of fair procedure under Article 21.

‘Natural justice is a distillate of due process’ observed Krishna Iyer, J. The concept of natural justice and due process which were rejected in Gopalan’s case forming part of our Constitutional Scheme have not been held to be an essential part of the Constitutional Scheme guaranteeing fundamental rights. “True, Our Constitution has no due process’ clause or the VIII Amendment of the American Constitution, but after Cooper and Maneka Gandhi cases the consequence is the same Krishna lyer, J., observed.

 

3. PRISONERS RIGHT AND PRISON REFORMS

The Supreme Court has considerably widened the scope of Article 21 and has held that its protection will be available for safeguarding the fundamental rights of prisoners and for effecting prison reforms.

Convicts are also human beings and until they are hanged, they are entitled to live in jail as human beings and not as slaves, Inhuman and barbarous treatment with prisoners is a constitutional prohibition.

It has been held that the punishment of solitary confinement, hand-cuffing, harsh labour, degrading jobs and punishments in jail without judicial approval violate the mandate of Article 21 of the Constitution.

Speedy trial and legal aid to poor prisoners are constitutional rights available to them and does not depend upon the mercy of the State.

 

4. EXPANDING ROLE OF WRIT OF HABEAS CORPUS

The dynamic role of judicial remedies after Sunil Batra’s case imparts to the habeas corpus with a versatile vitality and operational utility as bastion of liberty even within the jails.

Wherever the rights of a prisoner either under the Constitution or under other law are violated the writ power of the Court can and should run to rescue.

The habeas corpus writ can be issued not only for releasing a person from illegal detention but also for directing the jail authorities to provide necessary amenities to prisoners and to protect them from inhuman and barbarous treatment.

In A.B.S.K. Singh (Rly.) v. Union of India AIR 1980 SC 1579 it has been held that even an unregistered association can maintain a petition for relief under Article 32 of the Constitution if there is a common grievance. Thus Article 32 is not confined to protect only individual’s fundamental rights but is capable of doing justice wherever it is found and the society has an interest in it.

 

5. HUMAN RIGHTS JURISPRUDENCE

In 1979, India became party to the ‘International Covenant on Civil and Political Rights.

Article 10 of the International Covenant provides that ‘All persons deprived of their liberty shall be treated with humility and with respect for the inherent dignity of the human persons’.

Articles 5 of the U.N. Declarations of Human Rights, 1948. says, “No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment”.

In Prem Shankar v. Delhi Administration AIR 1981 SC 298, Krishna Iyer. J., said that in interpreting constitutional and statutory provisions the Court must not forget the core principle found in Article 5 of the U.N. Declaration of Human Rights, 1948.

 

AMERICAN CONSTITUTION

The Constitution of America embodies the Bill of Rights in the first ten amendments to the Constitution. These rights were declared in absolute terms.

The Constitution contained no limitation on these rights. But it was soon realised that for the maintenance of public order, to prevent corruption in the public morale, incitement to crime and the like, some limitations must of necessity be imposed upon the liberty of the individual.

The Supreme Court, in interpreting the Constitution had, therefore, to invent the doctrine of ‘police power” of he State, under which the State has the inherent power to impose such restriction upon the fundamental rights as are necessary to protect the common good, e.g., public health, safety and morals.

The Supreme Court of America has given a very wide meaning to the term police power so as to include everything that tends to promote the public welfare, e.g., increase the industries of the State, develop its resources and add to its wealth and prosperity.

 

INDIAN CONSTITUTION

The Indian Constitution does not leave the question of limitation to be decided by the Judiciary. Limitations are prescribed by the Constitution itself.

In addition to this, the Supreme Court has itself held that the provisions of our Constitution should be interpreted by the plain words used in the Constitution and not with reference to the connotation to police power in American Constitutional law.

Our Constitution does not recognise this doctrine of ‘police power’.

The object of specifying the restrictions in clauses (2) to (6) of Article 19 was to define with certainty the

imitations that might be imposed upon the freedoms instead of leaving that to the disposal of the judges. But what constitutes reasonable restriction’ is again a matter to be decided by the courts in each case which comes before it.

By the reason of the word reasonable’, the Indian Constitution partially imports the American doctrine.

The only difference is that while in U.S.A. the Supreme Court had to assume the power of reviewing Legislative Acts under the cover of interpreting the due process” clause, the Indian Constitution specifically confers this power upon the courts by the use of the word reasonable’ in clauses (2) to (6) of Article 19.

 

SUSPENSION OF FUNDAMENTAL RIGHTS

As has been said earlier, the fundamental rights are not absolute rights. The Constitution, therefore, provides or the curtailment or the suspension of the fundamental rights in the following circumstances

Article 358 provides that when the proclamation of emergency is made by the President under Article 352 the reedoms guaranteed by Article 19 are automatically suspended and would continue to be so for the period of emergency.

The suspension of rights guaranteed by Article 19 thus removes restriction on the Legislative and Executive powers of the State imposed by the Constitution.

Any law, executive order made by the State during this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed by Article 19.

Article 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over.

Article 359 further empowers the President to suspend the right to move any court for the enforcement of rights conferred by Part III of the Constitution (except Articles 20 and 21) during the continuance of emergency. He may mention in his order the rights whose enforcement is to be suspended.

The order of the President may extend to the whole or any part of the territory of India.

It is to be noted that while under Article 358 of the rights conferred by Article 19 are automatically suspended, the suspension under Article 359 can only be brought about by an order of the President.

 

CLASSIFICATION OF FUNDAMENTAL RIGHTS

The fundamental rights as incorporated in the Indian Constitution can be classified under (he following six groups: —

a. Right to equality (Articles 14-18).

b. Right to freedom (Articles 19-22)

c. Right against exploitation (Article 23-24)

d. Right to freedom of religion (Articles 25-28).

e. Cultural and educational rights (Articles 29-30).

f. Right to constitutional remedies (Articles 32-35).

 

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; —

1. The Government and Parliament of India, i.e., Executive and Legislature of the Union.

2. The Government and the Legislature of each State, i.e., Executive and Legislature of States.

3. All local or other authorities within the territory of India.

4. All local and other authorities under the control of the Government of India.

The term ‘State’ thus includes executive as well as the legislative organs of the Union and States.

The actions of any of the bodies comprised within the term ‘state’ as defined in Art. 12 can be challenged before the courts under Art. 13(2) on the ground of violating Fundamental Rights.

a. Authorities—In the context of Article 12, the word “authority” means the power to make laws, orders, regulations, bye-laws, notification etc. which have the force of law and power to enforce those laws.

b. 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 and Mining Settlement Boards

c. 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.

The most significant expression used in Art. 12 is “other authorities”. This expression is not defined in the Constitution. It is, therefore, for the Supreme Court, as the Apex Court, to define this term. It is obvious that wider the meaning attributed to the term “other authorities” in Art. 12, wider will be the coverage of the Fundamental Rights, i.e., more and more bodies can be brought within the discipline of the Fundamental Rights.

Today’s government performs a large number of functions because of the prevailing philosophy of a social welfare state. The government acts through natural persons as well as juridical persons. Some functions are discharged through the traditional governmental departments and officials while some functions are discharged through autonomous bodies existing outside the departmental structure, such as, companies, corporations etc.

While the government acting departmentally, or through officials, undoubtedly, falls within the definition of ‘state’ under Art. 12, doubts have been cast as regards the character of autonomous bodies. Whether they could be regarded as ‘authorities’ under Art. 12 and, thus, be subject to Fundamental Rights?

An autonomous body may be a statutory body, i.e., a body set up directly by a statute, or it may be a non-statutory body, i.e., a body registered under a general law, such as, the Companies A      c       t        ,  the Societies Registration Act, or a State Co-operative Societies Act, etc. Questions have been raised whether such bodies may be included within the coverage of Art. 12.

 

UNIVERSITY OF MADRAS V. SANTA BAI, AIR 1954 MAD. 67

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 persons, natural or juristic, such as, a University unless it is maintained by the State’. But in  Ujjammbai v. State of U.P, AIR 1962 SC 1621. 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 running through these named bodies nor can these bodies so placed in one single category on any rational basis.

 

ELECTRICITY BOARD, RAJASTHAN V. MOHAN LAL, AIR 1967 SC 1857. FOLLOWED IN UMESH V. V.N. SINGH, AIR 1968 PAT. 3.

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, Cochin Devasom Board, Co-operative Society, which have power to make bye-laws under Co-operative Societies Act, 1911. The Chief Justice of a High Court is also included in the expression other authorities’ as he has power to appoint officials of the Court. (Parmatma Saran v. Chief Justice, AIR 1964 Raj. 13.) The President when making order under Article 359 of the Constitution comes within the ambit of the expression ‘other authorities. 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”. Umesh v. V.N. Singh (AIR 1968 Pat. 3.)

 

SUKHDEV SINGH V. BHAGATRAM, AIR 1975 SC 1331

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 mid Industrial Finance Corporation are authorities within the meaning of Article 12 of the Constitution and therefore, they are ‘State’. All three statutory corporations have power to make regulations under the statute for regulating conditions of service of their employees. The rules and regulations framed by the above bodies have the force of law. Mathew, J., in a separate but concurring judgment, preferred a broader test that if the functions of the Corporation are of public importance and closely related to governmental functions it should be treated an agency or instrumentality of government and hence a State within the ambit of Article 12 of the Constitution.

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. This was a very restrictive interpretation of the expression ‘other authorities’ under Article 12 of the Constitution.

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. This was a very restrictive interpretation of the expression ‘other authorities’ under Article 12 of the Constitution.

Subsequently, decisions the Supreme Court has given a broad and liberal interpretation to the expression ‘other authorities’ in Article 12.

With the changing role of the State form merely being a police State to a welfare State it was necessary to widen the scope of the expression ‘authorities’ in Article 12 so as to include all those bodies which are, though not created by the Constitution or by a statute, are acting as agencies or instrumentalities of the Government. In modem times a government has to perform manifold functions.

 

AIRPORT AUTHORITY’S CASE, (RAMANA DAYARAM SHETTY V. THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA, AIR 1979 SC 1628)

Bhagwati, J., preferred, and rightly the broader test as suggested by Mathew, J., in Sukhdev v. Bhagatram case 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 chat the International Airport Authority which had been created by an Act of Parliament was the ‘State” within the meaning of Article 12.

 

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. whether the corporation, enjoys monopoly status which is State conferred or State protected.

However, the Court said that these tests are not conclusive but illustrative only and will have to be used with care and caution.

 

Applying this test in Som Prakash v. Union of India, (AIR 1981 SC 212.) the court held that a government company (Bharat Petroleum Corporation) fell within the meaning of the expression ‘the State’ used in Article 12.

Similarly, in Star Enterprises v. C.T.D.C. of Maharashtra Ltd., [(1990 3 SCC 280.] it has been held that a government company under Section 617 of the Companies Act constitute as the Development Authority under the Maharashtra State Town Planning Act, 1966 is a State’ within the meaning of Article 12 and therefore in its dealings with the citizens of India it would be required to act within the Rule of law and would not be permitted to conduct its activities arbitrarily.

 

U.P. WAREHOUSING CORPORATION V. VIJAI NARAIN, (1980) 3 SCC 459.

It was held that the UP. Warehousing  Corporation which was constituted under a statute and owned and controlled by the Government was an agency or instrumentality of the Government and therefore, the State” within the meaning of Article 12.

 

AJAY HASIA V. KHALID MUJIB, AIR 1981 SC 487

It has been held that a Society registered under the Societies Registration Act, 1898, is an agency or “instrumentality of the Stare and hence a State’ within the meaning of Article 12.

 

B.S. MINHAS V. INDIAN STATISTICAL INSTITUTE, (1983) 4 SCC 582 FOLLOWING AJAY HASIA V. KHALID MUJIB

It has been held that the Indian Statistical Society, a society Registered under the Societies Registration Act, 1860 being under the complete control of the Government of India is an Instrumentality of the Central Government and therefore, an authority” within the meaning of Article 12 of the Constitution.

Similarly, the Court held that the Indian Council of Agricultural Research a society registered under the Societies Registration Act, is an instrumentality of Central Government, and an authority” within the meaning of Article 12 and, therefore, amenable to writ-jurisdiction under Article 32 of the Constitution.

 

MANMOHAN SINGH JAITLA V. COMMISSIONER, UNION TERRITORY OF CHANDIGARH, (1984) SUPP. SCC 540

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.

 

FOOD CORPORATION OF INDIA, THE STEEL AUTHORITY OF INDIA, BIHAR STATE ELECTRICITY BOARD, INDIAN OIL CORPORATION,

Similarly, it has been held that the State’ within the meaning of ‘other authorities under Article 12 as they are instrumentalities of the State.

 

AISSF ASSOCIATION V. DEFENCE MINISTER-CUM-CHAIRMAN, B.O.G.S.S. SOCIETY

It has been held that Sainik School Society is the ‘State” and amenable to writ jurisdiction of the Court The entire fund is given by the State Government and the Central Government. The overall control vests in the Governmental authority.

 

S.M. ILYAS V. ICAR

It has been held that the Indian Council of Agricultural Research is a State within the meaning of Article 12 of the Constitution.

 

CENTRAL INLAND WATER TRANSPORT CORPORATION V. BROJO NATH GANGULY, (1986) 3 SCC 156.

The Court applied the above test and held that the Central Inland Water Transport Corporation, a Government company which was wholly owned by the Central Government and managed by Chairman and Board of Directors appointed and removable by Central Government, was ‘the State” within the meaning of Article 12 and therefore an instrumentality or agency of the State.

 

SHEELA BARSE V. SECRETARY, CHILDREN’S AID SOCIETY, (1986) 3 SCC 156.

The Court held that the children’s Aid Society, Bombay registered under the Societies Registration Act, 1860 was an instrumentality of the State and fell within the expression ‘the State’ within the meaning of Article 12.

 

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.

 

TEKRAJ VASANDI V. UNION OF INDIA, (1988) 1 SCC 236.

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

 

SRI KONA SEEMA CO-OPERATIVE CENTRAL BANK LTD. V. N. SEETHARAMA RAJU, AIR 1990 AIR 171.

It has been held that the Co-operative Bank registered under the A.P. Co-operative Societies Act is not State’ within the meaning of Article 12 as the functions of the Bank were not of public importance and not closely related to governmental function.

 

CHANDRA MOHAN KHANNA V. NCERT

It has been held that National Council of Educational Research and Training is not a State’ within the meaning of Article 12 of the Constitution.

 

PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY (2002) 5 SCC (111).

CSIR is State: The Supreme Court has overruled the decision in Sabbajit Tewari case and held that CSIR is an instrumentality of the State within the meaning of Art. 12 of the Constitution.

 

G. BASSI REDDY V. INTERNATIONAL CROPS RESEARCH INSTT. AIR 2003 SC 1764.

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 to help developing countries to alleviate rural poverty and hunger in various ways is therefore, not a ‘State’ within the meaning of Article 12 of the Constitution.

 

GENERAL MANAGER, KISAN SAHKARI CHINI MILLS LTD., SULTANPUR, U.P. V. SATRUGHAN NISHAD, AIR 2003 SC 4531.

It has been held that the Co-operative Sugar Mill was neither instrumentality nor agency of Government and, therefore, not ‘State’ within the meaning of Art. 12 of the Constitution.

 

V. K. SRIVASTAVA V. U. P. RAJYA KARMACHARI KALYAN NIGAM, AIR 2005 SC 411.

Following the decision in Pradeep Kumar v. Biswas it has been held that the U.P. Rajya Karmachari Kalyan Nigam is an agency and instrumentality of State and, therefore, is a State within the meaning of Art. 12

 

ASSAM SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LTD. V. J.D. PHARMA CEUTICALS, AIR 2006 SC 131

The Supreme Court has held that the Assail Small Scale Industries Development Corporation Ltd. is a statutory body and is State within the meaning of Article 12 of the Constitution.

 

PUNJAB WATER SUPPLY AND SEWERAGE BOARD V. RANJODH SINGH AIR 2007 SC 1082.

It has been held that an autonomous body is a State’ within the meaning of Art. 12 of the Constitution.

 

LT. GOVERNOR OF DELHI V. K. SODHI AIR 2007 SC 2555.

The Supreme Court held that the State of Council of Educational Research and Training (SCERT) is not a ‘State’ within the meaning of Art. 12 of the Constitution.

 

(d) Authorities under the control of the Government of India—

By, words authorities under control of the Government of India, it is meant to bring into the definition of State all areas outside Indian territory but which are under or may come under the control of the Government of India, such as, mandatory or trustee territories. Such a territory may come under India’s control by international agreement. Thus, even such areas will be the subject to Part III and the inhabitants of such areas may also claim the benefit of Fundamental Rights guaranteed in Part III.

 

IS JUDICIARY INCLUDED IN THE WORD “STATE”? —

In America it is well-settled that the judiciary is within the prohibition of the 14th Amendment. In India, the question whether the judiciary was included within the definition of the State’ in Article 12 arose for consideration of the Supreme Court in Naresh v. State of Maharashtra, [AIR 1967 SC 1.] It was held that even if a Court is the State a writ under Article 32 cannot he issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights.

Mr. H.M Seervai is of opinion that the judiciary should be included in the definition of the State’ and a judge acting as a judge is subject to the writ-jurisdiction of the Supreme Court.

In view of the judgment of 7 Judges Bench of the Supreme Court in A.R. Antulay v. R,S. Nayak,64 where it has been held that the court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens, it can be said that the expression State” as defined in Article 12 of the Constitution includes judiciary also.

NOTE: You are suggested to update the list of cases in which any new entity has been declared to be State or ‘Not State’. Like below;

 

 AUTHORITY AND NAME OF CASE 

1. Rajasthan Electricity Board,(Electricity Board, Rajasthan v. Mohan Lal,) 

2. Cochin Devasom Board, (P.B.M. Namboodripad v. Cochin Devasom Board, AIR 1956 TC 19)

3. Co-operative Society, (Dukhoram v. Co-operative Agricultural Association, AIR 1961 MP 219)

4. The Chief Justice of a High Court (Parmatma Saran v. Chief Justice,)

5. The President (Harroobhai v. State.) 

6. Patna University (Umesh v. V.N. Singh)

7. Oil and Natural Gas Commission, (Sukhdev Singh v. Bhagatram,)

8. Life Insurance Corporation (Sukhdev Singh v. Bhagatram,)

9. Industrial Finance Corporation. 

10. government company (Som Prakash v. Union of India,)

11. UP. Warehousing Corporation (U.P. Warehousing Corporation v. Vijai Narain)

12. Indian Statistical Society, (B.S. Minhas v. Indian Statistical Institute,) 

13. Indian Council of Agricultural Research (S.M. Ilyas v. ICAR,) 

14. Central Inland Water Transport Corporation,(Central Inland Water Transport Corporation v. Brojo Nath Ganguly)

15. the children’s Aid Society, Bombay registered under the Societies Registration Act, 1860 (Sheela Barse v. Secretary, Children’s Aid Society,)

16. Council of Scientific and Industrial Research (CSIR) (Pradeep Kumar Biswas v. Indian institute of)

17. U.P. Rajya Karmachari Kalyan Nigam(V. K. Srivastava v. U. P. Rajya Karmachari Kalyan Nigam, Chemical Biology)

18. Assail Small Scale Industries Development Corporation Ltd. (Assam Small Scale industries Development Corporation Ltd. v. J.D. Pharma Ceuticals,) 

 

AUTHORITY NOT DECLARED STATE AND NAME OF CASE

1. Institute of Constitutional and Parliamentary Studies (TEKRAJ VASANDI V. UNION OF INDIA,)

2. Co-operative Bank registered under the A.P. Co-operative Societies Act (SRI KONA SEEMA CO-OPERATIVE CENTRAL BANK LTD. V. N. SEETHARAMA RAJU,) 

3. National Council of Educational Research and Training, (CHANDRA MOHAN KHANNA V. NCERT)

4. International Crop Research Institute (G. BASSI REDDY V. INTERNATIONAL CROPS RESEARCH INSTT.)

5. Co-operative Sugar Mill (GENERAL MANAGER, KISAN SAHKARI CHINI MILLS LTD., SULTANPUR, U.P. V. SATRUGHAN NISHAD,)

6. State of Council of Educational Research and Training (SCERT) (LT. GOVERNOR OF DELHI V. K. SODHI)

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