Introduction

PART III – FUNDAMENTAL RIGHTS

Role of Fundamental Rights in the Constitution of India :

There were no fundamental rights under of the Government of India Acts because they were founded on the English doctrine of sovereignty of Parliament.

Even Simon Commission had rejected the idea of enacting declarations of fundamental rights on the ground that, they were practically useless.

But the nationalist movement was in favour of fundamental rights. So the Constitution of India embodied a number of fundamental rights in part III.

**Fundamental rights are most essential because to improve status of individual. Intellectual, Spiritual & Moral status.

**Fundamental rights are reminders to the government in power that certain liberties, assured to people by Constitution to be respected.

**The object of fundamental rights is to establish “a government of law & not of man”……tyranny (जुलूमशाही) of majority does not oppress the minority.

**The object is “to establish Rule of Law”.

Nagraj v. UOI : Fundamental rights are not gifts from state to citizen but confirms their existence & give them protection.

Absolute & unrestricted individual rights do not and cannot exist in any modern state.

For stricking balance between individual liberty & social need, fundamental rights have been given certain restraints (reasonable restrictions) with fundamental rights.

P.D.Shamdasani v. Central Bank of India :

“Fundamental rights are a guarantee against State action as distinguished from violation of such rights from private parties. Private action is sufficiently protected by the ordinary law of land”.

So it becomes very necessary to know what is State.

Definition of State ( Article 12 ) : Article 12 defines the term “State” as used in different Articles of Part III of the Constitution.

Art. 12 : Definition :-

In this part, unless the context otherwise requires, “the State” includes

1. The Government and Parliament of India (i.e., Executive and Legislature of the Union) and
   1. The Government and the Legislature of each of the States (i.e., Executive and Legislature of States) and
   1. All local or other authorities within the territory of India
   1. All local or 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. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.

Authority : Websters dictionary : Person or body exercising power to command….. In the context of Art 12, it means the power to make laws, orders, regulations, bye-laws, notification etc. which have the force of law and power to enforce those laws.

Local Authority :  Section 3(31) of The General Clauses Act :

“local authority” shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the government with the control or management of a municipal or local fund;

Other authorities : means authorities of a like nature. It could mean authorities exercising governmental or sovereign functions. It cannot include persons natural or juristic. The term ‘other authorities’ has not been defined in the Constitution and it is therefore left to the courts to put meaning into this term.

The question whether a particular authority can be looked upon as a “State” assumes  great importance, because if it does not amount to a State, most fundamental rights would not be available against such an authority.

For what is and what is not State there is no straight jacket formula.

It’s a subject matter of rich case laws.

The Supreme Court has held in Electricity Board, Rajastha v. Mohan Lal that, to be within expression “other authority”, all authorities created by Constitution or statute must get power under the 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.

B. Hassan Ali Khan v. Director of Higher Education :

Essential test to determine “other authority”.

1. Substantial financial aid
2. Control by the government.
3. Performance of public functions.
4. Entrustment (सोपविणे) of governmental acticities.

All not essential but anyone or combination may suffice.

Ajay Hasia v. Khalid Mujib : Society registered under the Societies Registration Act, 1898 is an agency or instrumentality of State and hence State within the meaning of Art 12.

The Supreme Court laid down the following tests to adjudge whether a body is an instrumentality of the government or not”

1) If the entire share capital of the body is held by the government, it goes a long way towards indicating that the body is an instrumentality of the government.

2) Where the financial assistance given by the government is so large as to meet almost entire expenditure of the body, it may indicate that the body is impregnated with governmental character.

3) It is relevant factor-if the body enjoys monopoly status which is conferred or protected by the state.

4) Existence of deep and pervasive (व्यापक) state control may afford an indication that the body is a state instrumentality.

5) If the functions performed by the body are of public importance and closely related to governmental functions, it is a relevant factor to treat the body as an instrumentality of the government.

In University of Madras v. Shantha Bai, the expression ‘other authorities’ came to be interpreted for the first time. The University of Madras, the Court held, was a body corporate created by the Madras University Act, 1923. Though State-aided the university was not maintained by the State and hence, did not come within the scope of Art. 12.

In Sukhdev Singh v. Bhagatram, the Supreme Court, following the test laid down in Electricity Board Rajasthan case, held that, Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation are authorities within the meaning of Art. 12 of the Constitution and therefore they are State.

The question was considered more thoroughly by the Supreme Court in R. D. Shetty v. Int. Airport Authority, where Bhagwati J. speaking for the court, pointed out that, if a body is an agency or instrumentality of government it may be an ‘authority’ within the meaning of Art. 12, whether it is a statutory corporation, a government company or even a registered society. Accordingly, it was held that the International Airport Authority which has been created by an Act of Parliament was the ‘State’ within the meaning of Art. 12.

(An instrumentality commonly refers to a subsidiary agency of a government that acts independently for the public good and whose obligations are backed by said government.)

Again in Som Prakash v. Union of India, the Supreme Court held that the Bharat Petroleum Corporation registered as a company under the Companies Act, is State within the enlarged meaning of Art. 12.

In Zee Telefilms Ltd. v. Union of India, the question arose as to whether BCCI (Board of Control for Cricket in India) can be said to be a State  for the purpose of Art. 12 of the Constitution. Answering the question in the negative, the Supreme Court observed that, BCCI is not financially, functionally or administratively dominated by the government; nor is it under the control of government. It is therefore, not a ‘State’ under Art. 12 of the Indian Constitution.

Importance of Definition of State in Part-III of the Constitution:

Definition of State as given under Art. 12 and expansion of the term ‘other authority’ under Article 12 by the Supreme Court of India is important in several respects.

• As most of the fundamental rights are available against the violative State action, it is essential to know definition of State.

• Once a body is declared as a State then it becomes subject to the discipline of the fundamental rights, which means that its actions and decisions can be challenged with reference to fundamental rights.

• Fundamental rights put limitations upon the powers of the government – Legislative as well as Executive.

• State under Art. 12 is also subject to the discipline of Administrative Law. viz. that State should act according to law, on proper legal principles and according to rule of reason and justice.

• The State also becomes subject to the writ jurisdiction of the Supreme Court under Art. 32 and that of the High Court under Art. 226.