Legal Service India - Article 12: Scope As Expanded By Judiciary
law  in India

Article 12: Scope As Expanded By Judiciary

Written by: Bhumika Sharma - 7th semester student of BALLB (Hons.) of School of Legal Studies, Shimla (H.P.)
click here for LIVE help-desk
Chat with us  (2 PM - 9 PM IST)
Legal Advice | Find a lawyer | Constitutional law | Judgments | forms | PIL | family law | Cyber Law | Law Forum | Income-Tax | Consumer laws | Company laws
Search On:laws in IndiaLawyers Search

Copyright Online in India
Right from your Desktop

Home \ Constitutional Law

Latest Articles | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05

The Constitution of India has defined the word ‘State’ for the purpose of Part –III and Part – IV .In State of West Bengal v/s Subodh Gopal Bose , the Supreme Court observed that the object of Part –III is to provide protection to the rights and freedoms guaranteed under this part by the invasion of ‘State’
Text of Article 12
State as provided under Article 12 of the Constitution has four components:
( a ) The Government and Parliament of India-
Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States
( b ) The Government and Legislature of each State
State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.
( c ) Local Authorities within the territory of India
Authority means
( i ) Power to make rules, bye- laws, regulations, notifications and statutory orders.
( ii ) Power to enforce them.
Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.
( d ) Other Authorities
Authorities other than local authorities working
( i ) Within the territory of India or;
( ii ) Outside the territory of India.

Judicial Scrutiny

To give a wider dimension to Fundamental Rights, the judiciary has interpreted ‘State’ in different contexts at different times.
( a ) Principle of Ejusdem generis
In University of Madras v/s Santa Bai, the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities which perform governmental or sovereign functions.

( b ) In Ujjam Bai v/s Union of India the Supreme Court rejected the principle of ejusdem generis .It observed that there is no common genus between the authorities mentioned in Article 12.
( c ) Performance of commercial activities ; or promotion of educational or economic interests

In Rajasthan State Electricity Board v/s Mohan Lal it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It should-
( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;
( d ) Performance of functions very close to governmental or sovereign functions

In Sukhdev v/s Bhagatram , LIC , ONGC ANDIFC were held to be State as performing very close to governmental or sovereign functions. The Corporations are State when they enjoy
( i ) Power to make regulations;
( ii ) Regulations have force of law.
( e ) Clearance of five tests

In R.D.Shetty v/s International Airport Authority, the Court laid down five tests to be an other authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control
( f ) Object of Authority

In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.
( g ) Clearance of five tests
In Union of India v/s R.C.Jain, to be a local authority, an authority must fulfill the following tests-
( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.

Whether Judiciary Is State

Jurists like H.M.Seervai, V.N.Shukla consider judiciary to be State. Their view is supported by Articles 145 and 146 of the Constitution of India.
( i ) The Supreme Court is empowered to make rules for regulating the practice and procedure of Courts.
( ii ) The Supreme Court is empowered to make appointments of its staff and servants; decide the its service conditions.
In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that when rule making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned in Article 12, it is not State.

In Rati Lal v/s State of Bombay, it was held that judiciary is not State for the purpose of Article12. In A.R.Antulay v/s R.S.Nayak and N.S.Mirajkar v/s State of Maharashtra , it has been observed that when rule making power of judiciary is concerned it is State but when exercise of judicial power is concerned it is not State.

The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times .It has gained wider meaning which ensures that Part-III can be applied to a larger extent. We hope that it would continue to extent its width in coming times.
AIR 1954 SC 92.
Constitution of India ,1950; Article 79.
Ibid , Article 168.
General Clauses Act, 1897; Section 3 ( 31).
AIR 1954 Mad. 67.
AIR 1962 SC 1621.
AIR 1967 SC 1857
AIR 1975 SC 1331.
AIR 1979 SC 1628
AIR 1981 SC 487
AIR 1981 SC 67.
The Constitution of India ,1950; Article 145
Ibid ,146.
AIR 1963 SC 996
AIR 1954 SC 388.
AIR 1988 SC 1531.
AIR 1967 SC 1.

The author can be reached at:
Added Date: 1 Dec 2008


Lawyers Search

• Find a lawyer
• Know your legal options
• Information about your legal issues

File Mutual Consent Divorce

Right Away
Call us at Ph no: 9650499965
Copyright Registration Services Right from your Desktop...
*Call us at Ph no: 9891244487

Legal Advice

Get legal advice from Highly qualified lawyers within 48hrs.
with complete solution.

    Your Name               Your E-mail

Legal Service India

lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
lawyers in Jaipur
lawyers in New Delhi
lawyers in Nashik
Contract laws
lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Faridabad lawyers
Noida lawyers
Woman issues
lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
lawyers in Ludhiana
Gurgaon lawyers
Ghaziabad lawyers
Protect your website
Law Colleges
Lawyers in India - Search by City legal Service India
lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
Lawyers India
lawyers in Agra
Famous Trials
Cause Lists
lawyers in Dhaka
lawyers in Dubai
lawyers in London
lawyers in New York
Immigration Law
Cheque bounce laws
Lok Adalat, legal Aid and PIL

About Us | Privacy | Terms of use | F A Q | Divorce by mutual consent | Lawyers | Submit article | Lawyers Registration | Sitemap | Contact Us

legal Service is Copyrighted under the Registrar of Copyright Act ( Govt of India) © 2000-2015
ISBN No: 978-81-928510-0-6