In several Constitutional provisions relating to fundamental rights, the expression, “State” has been used. Article 12 defines the term “State” as Including the Government and Parliament of India, the Government and legislature of a State, and all local or other bodies within the territory of India or under the control of the Central Government.
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It is therefore the action of these bodies working as a unit of a State that can be challenged before the courts as violating the fundamental rights.
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The term, State includes executive and legislative organs of the Union and State. Article 12 does not make any reference to judiciary and therefore the decision of a regularly constituted court, cannot be challenged as interfering the fundamental rights.
The expression, “local authority” has reference to a unit of local self-government like a Municipal Committee, a District Board, Village Panchayat, Improvement Trust and Mining Settlement Board.
In Mohammed Yasim v. Town Area Committee, AIR 1952 SC 115, the Supreme Court held that the by-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an order by a State authority which contravened the provisions of Article 19(l)(g) of the Constitution. These by-laws In effect and in substance have brought about a total stoppage of the wholesale dealer’s business in the commercial sense.
The expression, “Other Authorities” is of vague and broad import. It means a public rather than a private authority. In VJJainbalw. State ofU.P., AIR 1962 SC 1621, the Supreme Court has held the view that a University maintained by a State, would fall within the meaning of a State. A university is a statutory body having legislative and administrative powers. Hence a university is held to be within the purview of the authority in Article 12.
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Supreme Court has held In Electricity Board, Rajasthan v. Mohan Lai, AIR 1967 S.C. 1857 that to be within the expression, “Other authority”, and all authorities— created by the Constitution or Statute must get power under the law. So this interpretation, State Electricity Boards is the State within the meaning of Article 12.
The above decision of the Supreme Court has overruled the decision of Madras High Court in University of Madras v. Shanta Bai, AIR 1954 Madras 67, holding that a university is not a State within the meaning of expression “other authorities”, as used in Article 12.
In Sukhdeo Singh v. Bhagat Ram, AIR 1975 S.C. 1331, the Supreme Court has held that statutory corporations were “other authorities” within the meaning of Article 12 of the
Constitution, as they are created by statute of the Government.
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It has been held In B.S. Minhas v. Indian Statistical Institute, 1983, 4 S.C.C. 582 that the Indian statistical society registered under the Society Registration Act, 1860, 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.
In Manmohan Singh Gaitla v. Commissioner, Union Territory of Chandigarh 1984 S.C.C. 540, it has been held that an aided school which received a government grant of 90% was an authority within the meaning of Article 12.
Similarly, Food Corporation of India, Life Insurance Corporation of India and Steel Authority of India, are State within the meaning of “other authority” under Article 12, as they are Instrumentalities of the State.
In Sheela Barsev. Secretary, Children’s Aid Society, 1987 S.C.C. 50, the Supreme Court has 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. It is a public Trust within the meaning of “Bombay Public Act, 1950”. The Chief Minister of the State is ex officio President of the Trust. The society receives grant from the State.
“Authorities under the control of the Government of India”, mean all areas outside Indian territory but which are under or may come under the control of Government of India, such as mandatory or trust territories.
Such a territory may come under the control of Indian Government by international agreement. Such areas will also come within the purview of Part III of the Constitution and the inhabitants of those areas may also claim the benefit of Fundamental Rights guaranteed to the people of India.
Is judiciary included in the Word, “State”?
The question whether judiciary includes within the meaning of “The State”, arose for consideration in Naresh v. State of Maharashtra, AIR 1967 S.C. 1. The Supreme Court held in this case that even if a court is the State, a writ cannot be issued to a High Court against its judicial orders, because such orders cannot be said to be volatile of fundamental rights.
It may be noted that the answer to this question depends upon the distinction between judicial and non-judicial functions of the judiciary and while in the exercise of latter functions, the Courts fall within the definition of “State”, but in the case of former functions, it would not be included in the category of “the State”.
Therefore, Mr. H.M. Seervai, the eminent jurist, holds the view that judiciary should be included within the meaning of the term, “State”, and a judge acting as such, is subject to the jurisdiction of Supreme Court. The Courts, like other organs of the State are limited by the mandatory provision of the Constitution and they can hardly be allowed to override the fundamental rights and to make erroneous decision.