State under Constitution of India

By Ayush Chandra 12 Minutes Read

There is a distinction between the political and legal understanding of the ‘state’. Politically, the state emerges as an institution for the well being of its people and it consists of all that it encompasses; territory, population, human resource and sovereignty. Constitutionally speaking, the concept of state resembles the responsible authorities, against whom people can initiate actions in case of any wrong committed by them or infringement of rights. In Indian constitution these fundamental rights are enshrined under the part III of the constitution and the state has been made responsible for ensuring their proper implementation. In case of their infringement, aggrieved person can reach to Supreme court and High Court under article 32 and 226^[1] respectively. In case of successful claim the court may issue writs against the state for ensuring relief. The article 12 is the definition of the state and in a way illuminates the people about the institutions against whom they can move to the courts. In other words, it defines the limits of the state and it is a positive restriction on the judiciary about its jurisdiction regarding resolving the disputes associated with the fundamental rights. This article embodies equal proportions of ambiguities and clarities. The clarities are associated with the exact demarcation of state, where the central and union legislature, central and union executive and local authorities have been placed under the ambit of the state. The ambiguities are associated with the expression ‘other authorities‘. The bare reading of this provision gives an impression that all authorities within the territory of India can be construed as the state. Dr Ambedkar, while discussing the article 12 said that;

“The object of fundamental rights is twofold.

To begin with, each resident must be in a situation to guarantee those rights. Furthermore, they should be mandatory upon each position – I will by and by clarifying what the word authority’ signifies – upon each power which has either the ability to make laws or the ability to have watchfulness vested in it. In this manner, it is very evident that on the off chance that the fundamental rights are, all things considered, at that point, they should be restricted not just upon the Central Government they should not exclusively be official upon the Provincial Government, they should not exclusively be authoritative upon the Governments built up in the Indian States, they should likewise be authoritative upon District Local Boards, Municipalities, even town Panchayats, and taluk sheets, in truth each position which has been made by law and which has a certain ability to make laws, to make rules, or make bye-laws. On the off chance that recommendation is acknowledged – and I don’t see any individual who thinks about Fundamental Rights can question such a broad commitment being forced upon each authority made by-laws at that point, what are we to do to make our aim understood? There are two different ways of doing it one path is to utilize a composite expression, for example, ‘the State’, it is we have done in Article 7; or, to continue repeating without fail, the Central Government the Provincial Government the State Government the Municipality, the Local Board, the Port Trust or some other power’. It appears to me generally awkward as well as dumb to continue repeating this style each time we need to refer to some position. The smartest course is to have this complete expression and to economies in words.“

As it can be inferred from the above passage that the insertion of every authority in the article would have been impossible, and therefore, the term ‘other authorities’ has been made available to the interpretation. The initial phase of the interpretation was dominated by the literal interpretation of article 12 and the term other authorities received narrow attention. It was the settled law that for an institution to come under the category of other authority has to be similarly situated like the other three institutions.^[2] This view was supported and the Madras university^[3], Punjab university^[4] and the Karnataka engineering college^[5] were not considered as the state under article 12. In Ujjain bai v state of UP^[6], court held that the other authorities can not be read as the ejusdem generis with the other three characteristics. Hence, it is not required for any institution to have  sovereign authority to be a state under this article. This case has expanded the horizon of state in India. It was further held that Rajasthan electricity board^[7] and patna university^[8]is stated under article 12. Further apex court proved clarification that not the institutions  under the statute are state but the those created in it are the statute^[9]. For example, the companies registered under the companies act can not be considered as the state but the registrar can be considered under article 12.

In R.D. Shetty v International Airport Authority^[10] the court held that if anybody is created by the law or  such body is an agency of state then it will come under other authorities. Reign in this law later bharat petroleum corporation was held as the state. In Ajay Has v. Khalid Mujib^[11] the apex court had explained the concept of agency or instrumentality of the state. If any institution is controlled by the state then it will come under article 12.

Further, it was laid down that  for an institution to  have considered as the state under article 12 following things shall be taken into account:

1. Financial resources of the state being the Chief finding source;
2. The functional character being governmental in essence;
3. Plenary control residing in government; prior history of the same activity having been carried on by the government and made over to the new body;
4. Some element of authority or command. Whether the legal person is a corporation created by a statute, as distinguished from under a statute, is not an important criterion although it may be an indicum.^[12]

In pradeep Biswas’s^[13] case court held that for a body to come under article 12 it must have following characteristics;

1. Functionally, financially or administratively dominated  or controlled by government
2. Such control is particular to that institution
3. Such control should be of pervasive nature

Whether Judiciary is a state

It was held by the apex court that for the purpose of article 12 judiciary is not state. However, in A.R. Antulay v R.S. nayak^[14] the court held that for the rule making and administrative purposes it can be considered as the state. It means that when the judiciary performs the administrative functions such as recruitment of staff  or departmental proceedings then it would be considered as the state but not in its adjudicating capacity.

Curative petition

The Court adopted an unusual unanimous approach by holding that even after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person might be provided with an opportunity to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice, because the judgment of the Supreme Court is final. It was held that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment.

Several grounds were laid down whereby a “curative petition” could be entertained and a petitioner is entitled to relief ex debito justitiae. It could be used, for example, in cases of violation of principles of natural justice, where the interested person is not a party to the lies and wherein the proceedings a Judge failed to disclose his connection with the subject-matter or the parties giving scope for apprehension of bias. The petitioner would have to specifically mention the grounds on which he was filing the curative petition.

Conclusion

In indian constitution the definition and scope of state has been expanded and the institutions which were earlier out of its ambit were brought in its purview. Recently, the BCCI’s^[15] overhauling was done considering it to be state it a very limited way as it performed public functions. With the rise of privatisation, in the near foreseeable future, the judiciary might bring the corporation under the state. This would ensure their commitment towards the development of the country besides generating profits.

^[1] The scope of 226 is wider than 32. Under this article writs can be issued for violation of constitutional and legal rights besides fundamental rights.
^[2] State of WB v Subodh gopal Bose 1959
^[3]Universities of madras v santa bai 1957
^[4]Krishna gopal v punjab university
^[5] Devdas v Karnataka engineering college
^[6] 1962 AIR 1621, 1963 SCR (1) 778
^[7] 1967 AIR 1857, 1967 SCR (3) 377
^[8]  Umesh Chandra Sinha vs V.N. Singh And Ors. on 10 April, 1967
^[9] Sukhdeo v Bhagat ram 1975
^[10] 1979 AIR 1628, 1979 SCR (3)1014
^[11] 1981 AIR 487, 1981 SCR (2) 79
^[12] Som Prakash v. Union of India, AIR 1981 SC 212
^{[13]
[14]
[15]}  (2015) 3 SCC 251

Ayush Chandra