Earlier, during the monarchy, the king recognizes various rights and liberties of their subject which act as an assurance that the king will abide by all these rights and liberties. Gradually, human thinking evolved that there are certain basic rights and freedoms which can’t be compromised and which have to be protected by the State. Magna Carta, Bill of rights and then finally fundamental rights were consolidated as a result of the above-stated observation.
In 1928 Motilal Nehru observed that we should guarantee certain fundamental rights in such a manner that it cannot be a retreat in any circumstances.
The incorporation of Fundamental Rights in part 3 of our Constitution is deemed to be a distinguishing feature of our democratic country. These rights universally apply to all citizens and in certain cases to non-citizens also irrespective of their caste, birth, gender or religion.
Fundamental Rights are the prohibitions against the State. The state cannot make a law which takes away or abridges any of the rights guaranteed in Part 3 of the Constitution. If it passes such a law it may be declared unconstitutional by the courts.
Now, the question emanates that what is a state? i.e., against whom the action can be filed?
Definition of State:-
Article 12 of the Constitution of India expressly provides that unless the context otherwise requires, the “State” includes the Government and Parliament of India and Government and the Legislature of each of the States and all the local authorities within the territory of India or under the control of the Government of India.
The ambiguous part of the above article was the word local authority and other authorities.
Local Authority had been defined in Section3 (31) of the general clauses act which includes municipalities, district boards, village panchayats etc. i.e., all the local self-governing authorities.
However, 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 given rise to a great deal of strain and judicial beliefs have undergone a lot of changes over a period of time.
The dynamic nature of the State was kept in mind while interpreting the word “other authority” and defining its scope. Considering the facts and circumstances of each case the judiciary has given several judgements as to what falls under the “other authorities”.
The first case we have in this is University of Madras v Shanthabai, the question that was held in this case was that whether the University of Madras which was established under the University of Madras Act is a state or not?
Judges held that the term other authority in article 12 should be adjacent generous with the government or legislature i.e., other authority should derive its colour from the preceding three authorities under article 12. Therefore, it was held that the word ‘other authorities” does not extend to the Universities as they are not of governmental or sovereign nature.
According to this case to qualify as “other authorities” sovereign function was an inherent quality.
However, the above approach was cancelled in Ujjambai v State of Uttar Pradesh, Supreme Court held that adjacent generous approach is very restricted and even the above three categories of Article 12 does not possess any common thread or common genes.
Considering the above observation in the case of Rajasthan Electricity Board v Mohanlal, Supreme Court thought of formulating new criteria in which they said that anybody created under any law or constitution, it is obvious that they possess many powers in which they can affect fundamental rights. And it is, therefore, necessary for the body possessing such powers to be qualified as “other authorities” and also held that such body doesn’t need to exercise governmental or sovereign functions. Such bodies are irrespective of their nature and as per this decision Universities also qualify to be a state under “other authorities”.
Talking about Sukhdev v Bhagatram case, a question arises that whether the bodies incorporated under a Statute but solely for a commercial purpose qualify to be called as a state? The Supreme Court held that the statutory bodies such as ONGC/LIC/IFC which were set up under Special Statutes are State under “other authority”.
Looking at R.D SHETTY V INTERNATIONAL AIRPORT AUTHORITY case, the airport authority of Bombay issued a notice inviting tenders for the opening restaurant at the airport. R.D Shetty was one among those applying for the tenders but because of some discriminatory reasons, his tender was rejected. Therefore, RD SHETTY filed a case for the infringement of the fundamental rights.
The question raised in this case was whether the Airport Authority comes under the scope of state if not then there can be no cause for the infringement of the fundamental rights
Court held that the International Airport Authority (IAA) is formulated under Airport Authority Act, 1971 which is a parliamentary act and also observed that Central Government had many powers exercising over IAA such as appointing chairman and other members; also the entire capital amount that was required for the establishment of the IAA was funded by the Central Government. Therefore, the Supreme Court held that the Airport Authority is a state falling under “other authority” of Article 12.
Finally, it was Ajay Hasia v Khalid Mujib case that removed all the puzzlement and gave us tests to decide that which “other authorities” could be considered as the instrumentality or the agency of the State. The cumulative effect of all the following factors has to be seen:
- “If the entire share capital of the corporation is held by the government, it would go along way towards indicating that the corporation is an instrumentality or agency of the government.”
- The existence of “deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.”
- It may also be a relevant factor whether the corporation enjoys monopoly status which is State conferred or State protected.”
- “If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government.”
- “Specifically, if a department of government is transferred to a corporation, it would be a strong factor supportive of this inference” of the corporation being an instrumentality or agency of government.
The meaning of the word “authority” given in the WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, which can be applicable, is “a public administrative agency or corporation having quasi-governmental powers authorized to administer a revenue-producing public enterprise”. This dictionary meaning of the word “authority” is wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India, and we do not see any reason to narrow down this meaning in the context in which the words “other authorities” are used in Article 12 of the Constitution.
These decisions of the Supreme Court support our view that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers conferred may be to carry on commercial activities.