ARTICLE 12 - DEFINITION OF STATE
The author of this article is Ms. Harshita Pandey who is pursuing B.A. LL.B. (Hons.) from AMITY University Lucknow. She is an avid reader and writer.
INTRODUCTION
In early times whosoever become the king they use to recognize various rights and liberties of there subjects which was like an assurance that all these rights and liberties will be respected by the king
Slowly the human thinking became evolved and it was observed that there are some basic rights and freedom which can not be compromised which has to be protected by the states and because of this observation only the fundamental rights were consolidated.
In 1928 Moti Lal Nehru observed that e should guarantee Fundamental Right [1] in such a manner that it cannot be withdrawn at any circumstance
Now the fundamental rights which are guaranteed to the citizens of india[2] it is also guaranteed that the state should not act against these fundamental rights.
And if the state does something like this which can infringe the fundamental rights than an aggrieved person can sue the state.
Meaning of State under Article 12
ARTICLE 12 of the Indian Constitution states that,
“Definition in this Article 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.”In other words, for the purposes of Part III of the constitution, the state comprises of the following:
1. Government and Parliament of India i.e the Executive and Legislature[3] of the Union
2. Government and Legislature of each State i.e the Executive[4] and Legislature of the various States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India
Key terms discussed under the article
1. Government[5] (Union and state)
2. Parliament and state legislature
3. Local authorities
4. Other authorities
5. Territory of India
6. Control of the government of India.
· Legislature: The legislature is that organ of the government which enacts the laws of the government. It is the agency that has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws. Legislature enjoys a very special and important in every democratic state. It is the assembly of the elected representatives [6]of the people and represents national public opinion and power of the people.
· Government: The law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal, and family courts at the district level form the Judiciary[7].
INTRODUCTION
In early times whosoever become the king they use to recognize various rights and liberties of there subjects which was like an assurance that all these rights and liberties will be respected by the king
Slowly the human thinking became evolved and it was observed that there are some basic rights and freedom which can not be compromised which has to be protected by the states and because of this observation only the fundamental rights were consolidated.
In 1928 Moti Lal Nehru observed that e should guarantee Fundamental Right [1] in such a manner that it cannot be withdrawn at any circumstance
Now the fundamental rights which are guaranteed to the citizens of india[2] it is also guaranteed that the state should not act against these fundamental rights.
And if the state does something like this which can infringe the fundamental rights than an aggrieved person can sue the state.
Meaning of State under Article 12
ARTICLE 12 of the Indian Constitution states that,
“Definition in this Article 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.”In other words, for the purposes of Part III of the constitution, the state comprises of the following:
1. Government and Parliament of India i.e the Executive and Legislature[3] of the Union
2. Government and Legislature of each State i.e the Executive[4] and Legislature of the various States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India
Key terms discussed under the article
1. Government[5] (Union and state)
2. Parliament and state legislature
3. Local authorities
4. Other authorities
5. Territory of India
6. Control of the government of India.
The above-mentioned terms are better explained in the following section along with relevant cases.
Government (Union and state), Parliament and State Legislature
· Parliament: The parliament comprises of the President of India, the lower house of the that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya Sabha.
· Executive: It is that organ which implements the laws passed by the legislature and the policies of the government. The rise of the welfare state has tremendously increased the functions of the state, and in reality, of the executive. In common usage, people tend to identify the executive with the government. In contemporary times, there has taken place
A big increase in the power and role of the executive in every state. The executive includes the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.
Government (Union and state), Parliament and State Legislature
· Parliament: The parliament comprises of the President of India, the lower house of the that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya Sabha.
· Executive: It is that organ which implements the laws passed by the legislature and the policies of the government. The rise of the welfare state has tremendously increased the functions of the state, and in reality, of the executive. In common usage, people tend to identify the executive with the government. In contemporary times, there has taken place
A big increase in the power and role of the executive in every state. The executive includes the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.
· Legislature: The legislature is that organ of the government which enacts the laws of the government. It is the agency that has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws. Legislature enjoys a very special and important in every democratic state. It is the assembly of the elected representatives [6]of the people and represents national public opinion and power of the people.
· Government: The law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal, and family courts at the district level form the Judiciary[7].
· State Legislature: The legislative body at the state level is the State Legislature. It comprises of the state legislative assembly and the state legislative council.
Local Authorities
Before understanding what a local authority is, it is important to define Authorities. According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. When read under Article 12, the word authority means the power to make laws (or orders, regulations, bye-laws, notification etc.) which have the force of law. It also includes the power to enforce those laws
Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
“Local Authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund.
The term Local authority includes the following: Local government: According to Entry 5 of the List II of VII Schedule ‘local government’ includes a municipal corporation,[8] improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
1. Village Panchayat: In the case of Ajit Singh v. the State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included.
Other Authorities
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time.
The functions of a government can be performed either the governmental departments and officials or through autonomous bodies which exist outside the departmental structure. Such autonomous bodies[9] may include companies, corporations, etc.
So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several judgments as per the facts and circumstances of different cases.
Local Authorities
Before understanding what a local authority is, it is important to define Authorities. According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. When read under Article 12, the word authority means the power to make laws (or orders, regulations, bye-laws, notification etc.) which have the force of law. It also includes the power to enforce those laws
Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
“Local Authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund.
The term Local authority includes the following: Local government: According to Entry 5 of the List II of VII Schedule ‘local government’ includes a municipal corporation,[8] improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
1. Village Panchayat: In the case of Ajit Singh v. the State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included.
Other Authorities
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time.
The functions of a government can be performed either the governmental departments and officials or through autonomous bodies which exist outside the departmental structure. Such autonomous bodies[9] may include companies, corporations, etc.
So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several judgments as per the facts and circumstances of different cases.
CASES
In the University of Madras v. Shanta Bai,[10] the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities.
In the case of Ujjammabai v. the State of U.P.[11], the court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not have resorted to the in interpreting ‘other authorities’. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.
In Rajasthan Electricity Board v. Mohan Lal,[12] the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.
Conclusion
The Constitution of India not only gives fundamental rights to the citizens but also imposes the duty on the state to ensure that the fundamental rights are protected. The court through its interpretations has widened the scope of the term State to include a variety of statutory and non-statutory bodies under its umbrella.
The need to determine what falls within the meaning of state is, to assign the party on whom the duty to implement such right is placed upon. Not only that, but the definition of state under Article 12 also has several words which may not have definite meanings, words such as local authorities, control of government, other authorities, etc. and as seen in the above sections, the courts have, through the course of their judgments, described the extent of the article by laying down a test and discussing the meaning of the terms.
BIBLIOGRAPHY
1. https://learn.finology.in/courses/legal
2. www.jagranjosh.com
3. byjus.com
4. www.topperlearning.com
[1] In part III of the constitution
[2] Between 1947 and 1949
[3] A law making body
[4] It implements law
[5] A group of people with the Authority to Govern a state or country
[6] Responsibility for the operations of Their government
[7] The judicial authority Of a country
[8] The local government in India that administers urban areas
[9] Body which has the sole right and power to establish their own law and code of conduct
[10] AIR 1954 MAD 67
[11] AIR 1962 SCR(1) 778
[12] AIR 1967 SCR(3) 377
In the University of Madras v. Shanta Bai,[10] the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities.
In the case of Ujjammabai v. the State of U.P.[11], the court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not have resorted to the in interpreting ‘other authorities’. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.
In Rajasthan Electricity Board v. Mohan Lal,[12] the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.
Conclusion
The Constitution of India not only gives fundamental rights to the citizens but also imposes the duty on the state to ensure that the fundamental rights are protected. The court through its interpretations has widened the scope of the term State to include a variety of statutory and non-statutory bodies under its umbrella.
The need to determine what falls within the meaning of state is, to assign the party on whom the duty to implement such right is placed upon. Not only that, but the definition of state under Article 12 also has several words which may not have definite meanings, words such as local authorities, control of government, other authorities, etc. and as seen in the above sections, the courts have, through the course of their judgments, described the extent of the article by laying down a test and discussing the meaning of the terms.
BIBLIOGRAPHY
1. https://learn.finology.in/courses/legal
2. www.jagranjosh.com
3. byjus.com
4. www.topperlearning.com
[1] In part III of the constitution
[2] Between 1947 and 1949
[3] A law making body
[4] It implements law
[5] A group of people with the Authority to Govern a state or country
[6] Responsibility for the operations of Their government
[7] The judicial authority Of a country
[8] The local government in India that administers urban areas
[9] Body which has the sole right and power to establish their own law and code of conduct
[10] AIR 1954 MAD 67
[11] AIR 1962 SCR(1) 778
[12] AIR 1967 SCR(3) 377
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