| Introduction | Jurisprudence |
| Provisions | Article 12 |
| Case laws | Som Prakash Rekhi v. Union of India (1981) 1 SCC 449 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111 G. Basi Reddy v. International Crops Research Institute (2003) 4 SC 225 Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 [N Santosh Hegde, SN Variava, BP Singh, HK Sema and SB Sinha, JJ] |
| Conclusion | present problem |
What is State?
In general terms, state is a political and legal organization that has:
- Defined territory : a specific geographical area (like a country)
- Permanent population : people who lives there
- Government : an authority that makesand enforces law
- Sovereignty : the power to govern itself without outside interference
- Recognition: other countries acknowledge it as a state(internationally).
In simple words, we can say that a state is a system that governs a country or region, maintains law and order, provides services, and protects the rights of its people.
Under Constitution of India, the purpose of state is to create a welfare society. The Constitution imposes a negative duty on the state in the form of fundamental rights and a positive duty on the state in the form of directive principles of state policy. V. N. Shukla stated that it is not expressly stated that the fundamental rights are guaranteed only against the State, yet the judiciary has interpreted it to mean that the fundamental rights can be enforced only against the State and not the private individuals. Thus, it becomes important to define precisely and concisely the term “state”.
Article 12: Definition
In this part, unless the context otherwise requires, “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.
The State comprises of:
- Government and the Parliament of India, i.e., Executive and Legislature of the Union
- Government and State Legislatures, i.e., Executive and Legislature of each state
- All local or other authorities within the territory of India or Under the control of Government.
The actions of any of the bodies comprised within the term “state” under Article 12 can be challenged before the court under Article 13(2) for the infringement of Fundamental Rights.
Government, Parliament and State Legislatures:
Parliament: Parliament is the supreme legislative body in a democratic country like India. It is responsible for making laws, debating national issues, approving budgets, and holding the government accountable. It involves two houses, Lok Sabha and Rajya Sabha.
Government: Government is the organization or system of people that has the authority to run a country, state, or community. It makes laws, enforces them, and manages public services.
State Legislatures: A State Legislature is the law-making body at the state level in India—just like Parliament is at the national level. It makes laws for the state, passes the budget, and holds the state government accountable.
Local Authorities
“Authority” means a person or body exercising power to command. A Local Authority is a part of the government at the grassroots level. It takes care of local administration in cities, towns, and villages. These bodies are closer to the people and handle basic public services like water supply, roads, garbage, street lights, and sanitation.
Definition (Section 3(31) of the General Clauses Act, 1897): “Local authority” means 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.
Concept of Other Authorities:
The term “other authorities” in Article 12 has nowhere defined. Neither in the constitution nor in any other provision or statute. Thus, it’s interpretation creates difficulty and judicial opinion has undergone changes over time. The judiciary has given several judgements to define other authorities.
For the first time, in University of Madras vs Shanta Bai, the Madras High Court interpreted the term other authorities as those authorities fall under other authorities which perform governmental or sovereign functions. It cannot include persons, natural or juristic, example, unaided universities.
Case laws
Som Prakash Rekhi v. Union of India
Facts: Som Prakash was an employee of the Burmah Shell Oil Storage and Distributing Company of India Ltd. He retired from the company at the age of 50 years and sought a pension under the guidelines framed by the company. He was entitled to receive Rs. 165.99 per month as pension and paid Rs. 86 per month as supplementary retirement benefits for 13 months, which was later stopped.The company informed him that two deductions were made from his pension of Rs. 165.99: one for the EPF payment and the other for the gratuity payment. Thus, the pension payable to him was Rs. 40.05. The monthly supplementary retirement benefit of Rs. 86/—was also cut off, though it was at the discretion of the employer and is liable to be stopped.Som Prakash filed a writ under article 32 against the company, contending that the pension scheme is granted by BPCL, a Government company. Issue: Whether Bharat Petroleum Corporation Ltd., a statutory corporation, was an “authority” in the ambit of the “State” under Article 12? Whether is it justified in the public interest, if not legal, to deduct the petitioner’s pension in the name of giving gratuity and EPF? Judgment: Justice Krishna Iyer held that two things are essential for the test of the State:Discharging function or doing business as the proxy of the state by wearing the corporation mask.An element of the ability to affect legal relations by power vested in it by law.Court referred the Airport Authority case, and gave three tests to determine whether any authority is state or not:-1. Financial status2. Public Interest3. ControlBPCL is wholly funded by the Government and the services are carried out on behalf of the Government. It was held to be a “State” within the meaning of Article 12. The expression ‘other authority’ is not confined only to statutory corporations alone but also to a non-statutory body like a government company, a registered society, or bodies that have some nexus with the government.Gratuity and provident funds have two different roots. Payment of both should be independent of the other, and any mutual deductions in an employee’s overall social security benefits are never a complete benefit. The Supreme Court clarifies that social security allowances to employees after retirement must be interpreted liberally to promote maximum social justice to the working sections of society. It must prevent any bifurcation and should not mislead with tactful and confusing financial modes.
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
Facts: In this case, Sabhajit Tewary case was discussed and petition filed based on this case.In Sabhajit Tewary case, it was discussed that CSIR is not an “authority” within the meaning of article 12 as a writ petition was filed against CSIR by Subhajit claiming uniformity in the remunerations of the Stenographers newly recruited to the CSIR in 1972.In the present case, appellant filed a writ petition against Indian Institute of Chemical & Biology challenging the termination of their services based on similar contentions that was raised in Sabhajit case.High Court dismissed the appeal and held that appeal was not maintainable. An appeal filed against said order was also dismissed in view of the decision of Supreme Court in Sabhajit Tewary’s case.Appellant filed an appeal challenging the order of High Court by special leave petition. Court referred the case before constitutional bench being of the view that the decision in Sabhajit Tewary’s case required re-consideration. Issue: Whether CSIR falls under the ambit of Article 12 of the Indian constitution, within the meaning of “State”? Judgment: The Court has observed that CSIR was funded by the Government. It was financially, functionally and administratively dominated by the Government and such control was deep and pervasive.CSIR was created by the Government to carry on the activities of Department of Commerce of the Central Govt. in organised way.According to the statement handed up to the Court on behalf of CSIR the present financial position of CSIR is that at least 70% of the funds of CSIR are available from grants made by the Government of India. It was observed that the governing body also has the power to frame, amend or appeal or repeal the byelaws of CSIR but only with the sanction of the Government of India.The CSIR cannot lay down or change the terms and conditions of service of its employees and any alteration in the bye-laws can be carried out only with the approval of Government of India. Court finally held that CSIR is state and comes within the definition of article 12, “other authority”. Therefore, the writ is maintainable.
G. Basi Reddy v. International Crops Research Institute
Facts: The International Crops Research Institute for the Semi-Arid Tropics (ICRISAT) is an international organisation which is co-founded by various international organisations under the Consultative Groups of International Agriculture Research (CGIAR). This organisation is made with a view to remove poverty in rural areas and hunger in environmentally sustainable ways involving 50 countries.The petitioner, in this case, is an employee of ICRISAT. He was terminated from the services on charges of proven misconduct based on the ICRISAT Personnel Policy Statement, set because of international employment policies.Petition was filed before Karnataka High Court and it was dismissed. Hence, now appeal before Supreme Court. Issue: Does ICRISAT fall within the ambit of Article 12 of the Constitution of India, within the meaning of “State”?What type ICRISAT is exactly? Judgement: Court observed that a writ under article 226 is maintainable only when individual’s fundamental rights violated or infringed. In this case, petitioner’s right under article 14 and 21 violated is maintainable only when ICRISAT is state or authority within the meaning of article 12.The aim of ICRISAT was to help develop countries and ease rural poverty and hunger, but not something for the Union of India. It was not set up by Government of India but provide services to various countries including India.ICRISAT was neither being controlled by the Government nor was it accountable to the Government. It also found the financial contribution of India to be minimal- just around 0.3% to 2%, hence not financially dependent on the Indian government.The agreement between the India and CGAIR is mere contractual and hence, the court found that there is no infringement of constitutional rights. Court held that writ petition is not maintainable under article 226 because ICRISAT is not state as it is not a statutory body performing any public or statutory function. Appeal dismissed.
Zee Telefilms Ltd. v. Union of India
Facts: BCCI is a private entity registered under the Tamil Nadu Societies Registration Act, 1975, governing body of cricket in India. It regulates the cricket matches or tournaments or others affairs related to cricket nationally or internationally.On 2004, BCCI invited tenders for the auction of exclusive telecast rights for 4 years. Two major sports channel, ZEE and ESPN submitted bids. BCCI accepted ZEE’s bid, which agreed to pay $ 260,756,756.76 (INR 12.06 billion) and deposited $ 20 million (Rs. 92.50 crores) as security in the Bank of Travancore.However, later BCCI terminated the contract and refunded the amount of petitioner (Zee Telefilms).Hence, Zee approached the Supreme Court for termination of contract, stating to be arbitrary and violation of article 14. Issue: Is BCCI a “state” under article 12? Whether writ petition against BCCI maintainable? Judgment: Court observed that BCCI enjoyed the monopoly over cricket, and state does not give any monopoly nor state protect such monopoly under any statute. Also BCCI is not funded by the state, nor does the state hold any share. If BCCI is considered to be a state, then it would fall under article 12.Being popular, financially strong, or having public support does not qualify an organization as a State. Similarly, although cricket is very popular in India, the BCCI remains a private federation like any other. The Court was clear that no private sports federation, including the BCCI, can be considered a State under Article 12.Court held that no fundamental right of petitioner is violated in this case. Court held that BCCI is not a “state” within the meaning of article 12.
