This article is written by Sushree Surekha Choudhury from KIIT School of Law, Bhubaneswar. The article gives an overview of Article 36 of the Indian Constitution. It explains what is a ‘State’ under the Constitution and the bodies that come into its ambit.
Article 36 of the Constitution belongs to Part IV of the Constitution, the Directive Principles of State Policy. The peculiarity of this part of the Constitution is that these principles are not enforceable in any court of law. These are the principles and values of our democracy for the overall development of the nation, and thus, the citizens are expected to abide by them. Article 36 is the definition part of the Directive Principles of State Policy. It defines what is a ‘State’ for Directive Principles to be followed. The words of the Article suggest that the meaning of the State under Article 36 is the same as the meaning of the State under Part III of the Indian Constitution. Article 12 of Part III defines a State. Article 12 makes a definitive classification of the bodies that shall fall under the head ‘State’ since the provisions of Part III of the Constitution shall be applicable to them. In a similar manner, the Directive Principles of State Policies shall also be applicable to them.
‘State’ under the Indian Constitution
Part III of the Constitution is of the nature that it restricts the executive, the legislature and the judiciary from intervening and encroaching upon this part of the Constitution. These are Fundamental Rights guaranteed to the Indian citizens. Part IV deals with the Directive Principles of State Policy. These are a set of duties that the executive, the legislature, the judiciary and the citizens should comply with. For a violation of a Fundamental Right, the citizens file and fight a lawsuit against a State. For all these purposes, it is crucial to determine what comes within the ambit of the State. Thus, Article 12 of Part III and Article 36 of Part IV defines and describes a State and classifies every organ that shall come under its umbrella. Responsibilities under Part III and Part IV are put on all the bodies that come under the purview of a State.
Article 12 includes the following in the category of a State:
- The Union Government,
- The Parliament,
- The State Governments,
- The State Legislatures,
- Local Authorities,
- Other Authorities,
- Any other body or authority within the territory of India or under the control of the Government of India.
The ambit of Articles 12 and 36 is wide. The Articles cover varied bodies, authorities and institutions clubbed into these numbered categories. The word ‘includes’ in the Article suggests that the Article is not exhaustive in nature. It is inclusive in nature. It shall include all that would match the elements of a State within its ambit through analysis and judicial interpretations.
The categories to which the definition of State is divided gives rise to a winder understanding as it is classified in the following manner:
Legislative and executive organs of the Union Government
- The Central Government.
- The Parliament – Lok Sabha (House of People) and Rajya Sabha (Council of States).
Legislative and executive organs of the state government
- The State Governments.
- The State Legislatures – Vidhan Parishad (Legislative Council) and Vidhan Sabha (Legislative Assembly).
- Municipalities – Municipal Corporations, Nagar Panchayats and Nagar Palikas.
- Panchayats – Gram Panchayats, Mandal Panchayats and Zila Panchayats.
- District boards.
- Local trusts.
Other authorities : statutory authorities and non-statutory authorities
- Statutory authorities
- National Human Rights Commission,
- National Commission for Women,
- National Tribunals,
- National Law Commission,
- Dispute Resolution Forum, etc.
- Non-statutory authorities
- CBI – Central Bureau of Investigation,
- Vigilance Commission,
- Life Insurance Commission,
- Oil and Natural Gas Commission,
- Lokayukta, etc.
Government, Parliament, and state legislature
The first category under the definition of State covers the Government, Parliament and State Legislature. Government in this definition covers both Central and state governments. The Parliament at the Centre consists of two Houses, the Lok Sabha and the Rajya Sabha. The State Legislature includes the Legislative Assembly of every state and the Legislative Council too, for the states that have a bicameral legislature.
It consists of the Union Executive as well as the State Executive. The executive is the organ of the government that implements the laws passed by the Parliament and State Legislatures. The ambit of the executive covers the President of India, the Governors of different states, the Prime Minister, the Chief Minister, the Union Council of Ministers and the State Council of Ministers.
It consists of Union Legislature and State Legislatures. The Union Legislature (Parliament) consists of the House of People and the Council of States. They scrutinise a Bill and make laws by approving those Bills. The State Legislature functions mutatis mutandis to the Union Legislature. In states that follow a unicameral legislature, the Legislature consists of the Legislative Assembly. In states that follow a bicameral legislature, the Legislature consists of the Legislative Assembly and the Legislative Council. The legislature is vested with a host of responsibilities as their actions directly affect the public interest of the country.
Authority means having power. For the definition of a State, authority is the one that has powers to make laws, regulations, notifications, etc., and regulate them. These laws and regulations are legally binding and enforceable. Section 3(31) of the General Clauses Act, 1897 defines a local authority to include municipalities, municipal committees, district boards, etc. The local authority consists of the local government, whereas, the local government includes municipal corporations, mining settlement authorities, etc., and are governed by village administrations. It also includes a village panchayat. It was decided in Ajit Singh v. State of Punjab and Anr. (1966) that a village panchayat shall fall into the ambit of local authorities. This was when a consolidation officer who claimed to be acting under the authority of the State wanted to acquire lands of common villagers and put the money into a common pool. He also purported to manage this pool. But the Court declared that such consolidation was not valid and non-binding on the villagers. The Court here transferred all the proprietary rights in this arrangement to the village panchayat (gram panchayat). The Court further clarified that a village panchayat (herein established under the Punjab Gram Panchayat Act, 1952 falls within the ambit of local authorities under Article 12 of the Constitution. The Court stated that the acquisition rights and other bundles of rights would thus, come within the powers of the local authority in the village, i.e., the village panchayat.
In Mohammad Yasin v. Town Area Committee (1952), the Supreme Court held that the bye-laws of a municipal committee that changed a prescribed fee to a wholesale dealer under state authority were violative of Article 19(1)(g) of the Constitution. This hampered the business of these wholesale dealers. Thus, the Supreme Court listed the characteristics that make a body a local authority:
- It should have a separate legal existence,
- It should be an independent entity,
- It should have a definitive jurisdiction,
- It should be an elected body,
- It should enjoy autonomy,
- It should be legally and statutorily entrusted with governing functions of the local area,
- It should have the right to raise money by way of taxing, charging fees, etc., in the local jurisdiction.
The term ‘other authorities’ has neither been defined in the Indian Constitution nor in the General Clauses Act, 1897. It is not defined in any other legislation either. This has given the term a broad interpretation but has also created difficulties while dealing with cases. As the legislation has been silent on defining the term, the Courts have relied on judicial interpretations and the meaning of the term has been determined through judicial pronouncements.
In The University of Madras v. Shanta Bai and Anr. (1953), the Madras High Court described the meaning of ejusdem generis (of the same kind) in the context of determining ‘other authorities.’ The Court held that the term ‘other authorities’ will only include the authorities/bodies that perform governmental/sovereign functions. The Court clarified that no other body, authority, or person (natural/juristic) would come under the ambit of ‘other authorities.’ This was the first case dealing with this term and the judgement was somewhat criticised for having a narrow approach.
Finally, in Rajasthan State Electricity Board v. Mohan Lal and Ors. (1967), the Supreme Court gave a celebrated judgement that widened the ambit of ‘other authorities’ as it is today. The Supreme Court decided that the ambit of ‘other authorities’ would be inclusive of all the authorities created under the Constitution or any other law in force. The Supreme Court rejected the idea that for an authority to come under the ambit of ‘other authorities’ it has to perform governmental or sovereign functions. The Court stated that the nature of the function is immaterial and even an authority performing commercial function would come under the ambit of ‘other authorities.’
Territory of India
‘State’ as defined in the Indian Constitution says that it consists of Governments, the Parliament, the State Legislatures, local authorities and other authorities within the territory of India or under the control of the Government of India.
This part of the Article 36 and Article 12 specifies that apart from having control over the authorities and bodies under the Government’s control, a body or authority must be within the territory of India to be declared as a State for the purpose of application of laws and legislation applicable to States in India.
It is further stated that the term ‘territory of India’ is to be understood as it has been defined under Article 1(3). This interpretation was added through the case of N. Masthan Sahib v. Chief Commissioner, Pondicherry (1961). The Supreme Court held that Pondicherry did not fall within the ‘territory of India’ but the Union Government exercised jurisdiction over it. Thus, there was no de facto French jurisdiction in Pondicherry. Thus, rules made by the Union Government for this territory shall be final and binding. The Court rejected an appeal under Article 136 of the Constitution challenging the administrative validity of the government’s ruling in Pondicherry.
As per Article 1(3) of the Constitution, the territory of India consists of the following:
- The territories of the states,
- The Union territories mentioned in the First Schedule of the Constitution,
- Such other territories that may be acquired.
Thus, anything that falls within the ambit of either of these categories could be stated to fall within the territory of India. This is a determinant factor in proving a body or authority to be a State within the meaning of the Constitution.
Control of the Government of India
‘State’ as defined in the Indian Constitution says that it consists of Governments, the Parliament, the State Legislatures, local authorities and other authorities within the territory of India or under the control of the Government of India. This means that for a body or authority to be termed as a State it has to either fall within the territory of India, or the Government of India must have control over such body or authority. The Government of India exercising control over a body or authority shall be eligible to be determined as a State within the meaning of State under the Indian Constitution.
Interpretation of the word ‘control’ is not absolute in nature. This means the Government of India does not need to have absolute control of the authority or body that falls under the meaning of a State. The body or authority does not need to follow the Government’s directions and instructions absolutely. Minimum control of the Government would render it eligible. Minimum control is subjective in nature. Usually, the Indian government takes such control and measures under which the authorities are under scrutiny where they must adhere to public policy. Upholding public policy, morals, natural justice and decency could be termed as minimum control. The Government of India needs to have minimum control over the functioning of this body or authority. If a body or authority seeks and gets financial assistance from the Government of India, it is said to be under the control of the Government of India.
Instances of a State: State Electricity Boards, Revenue department, Oil and Natural Gas Corporation of India.
Not a State: National Council of Educational Research and Training (NCERT) is not categorised to be a State as there is a complete absence of Government control over it.
The test to determine whether a body or authority comes under the control of the Government of India was established in Ajay Hasia Etc. v. Khalid Mujib Sehravardi and Ors. (1980). The Court decided that if a body or authority is financially, functionally or administratively dominated by the Government of India then it is said to be under the control of the Government of India. The control of the Government of India must be pervasive in nature.
Does State include the Judiciary
American jurisdiction excludes the judiciary from the ambit of a State. This is done to maintain the independence of the judiciary therein. In Indian jurisdiction, ‘judiciary’ is not defined anywhere in the Constitution or any other legislation. Thus, the issue is debated. Lawmakers are of mixed opinions on the subject. It is determined through judicial interpretation and judicial pronouncements.
The judiciary should be considered within the ambit of other authorities since the Courts are statutorily set up and exercise jurisdiction within the territory of India or on the subjects within the control of the Government of India, by the power conferred on it by law.
Another school of thought is that the Supreme Court of India performs all the roles of a State. It has the power to make rules, regulate procedures, appoint staff and uphold law and justice in the country, it should fall within the ambit of a State. This also ensures equality by not excluding the judiciary from the obligations under Part III and Part IV of the Constitution.
Later, a distinction was made between the judicial functions and non-judicial functions of the judiciary. It was decided that while performing the non-judicial functions, the judiciary would come under the definition of a State and while performing the judicial functions, the judiciary would be treated as an exception to the definition. Thus, the Courts are not obliged under Part III and IV of the Constitution while performing in their judicial capacity. While performing non-judicial functions (rule-making and other administrative functions), the Courts are bound by the definition and rules applicable to a State under the Constitution.
It was first determined in Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra (1967) that the Court cannot be obliged by Part III rules that are applicable to a State while it is performing in its judicial capacity to decide on a dispute between two parties.
Extension in the interpretation of ‘State’ under Part III and IV of the Indian Constitution
The widened interpretation of the definition of State is restricted to Part III and Part IV of the Constitution. This means that the extended interpretation is not applicable to any other part of the Constitution, like Article 309, Article 310 or Article 311 except Part III and IV. This implies that an employee of any body or authority that comes within the meaning of a State cannot seek redressal under Article 311 of the Indian Constitution as a civil servant. Such powers are excluded.
This extension was primarily discussed in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) where the Court held that the Council of Scientific and Industrial Research will fall within the definition of a State even though it is a registered authority. This judgement was in consonance with the case of Rajasthan State Electricity Board v. Mohan Lal and Ors. (1967) and overturned the judgement of Sabhajit Tewary v. Union of India and Ors. (1975) whose ruling excluded registered societies from the ambit of the definition of a State.
In Shrikant v. Vasantrao and Ors. (2006), the Supreme Court observed that even though the terms ‘State Government’, ‘local authorities’ and ‘other authorities’ fall within a single definition of State, it is done so for the purpose of Part III and IV of the Constitution. They are different from one another in their scope, powers and functions in general. The Court refused to use the meaning of a State Government within the definition of State under Part III and Part IV of the Constitution in other parts of the Constitution.
The Supreme Court affirmed this stand again in State of Assam v. Barak Upatyaka D.U. Karmachari (2009) by stating that even though cooperative bodies and societies fall within the meaning of State, they would not be treated as a State Government outside the ambit of Part III and Part IV of the Constitution.
Landmark judgements on ‘State’ under the Indian Constitution
Ajay Hasia Etc. v. Khalid Mujib Sehravardi & Ors. Etc. (1980)
In this case, the Jammu and Kashmir Regional Engineering College was in question. Whether or not the Engineering college registered under the Jammu & Kashmir Registered Societies Act (1898) could come under the ambit of a State. In the instant case, a writ petition was filed by students to whom questions were asked about their parentage and residence, and admissions were granted or denied based on those answers.
This Act of the engineering college management was unreasonable and arbitrary. Looking at the Memorandum of Association and Registered Society Rules, the Court held that the engineering college has all the elements to be categorised as a State. The composition of the society consists of representatives of the Central Government and also from the State Governments of Jammu & Kashmir, Rajasthan, Uttar Pradesh and Punjab with the Central Government’s approval. The engineering college is fully aided by the State and Central governments. The registered society is run and rules are made with the approval of the representative governments. Annual reports are submitted by the society to the representative governments. This can be categorised as a pervasive control by the governments. Thus, it is a State within the meaning of State under the Constitution. The Court stated that if the interviews were merely 2-3 minutes long and no relevant questions were asked except the parentage and residence of the students, it is violative of Article 14 of the Constitution and thus, liable to be struck down to the extent of arbitrariness. The Court stated that if merit-based questions were asked and admissions were granted or denied on that basis, it cannot be struck down as arbitrary merely for an additional question on the residence of the student. The Court laid various instructions on the manner and procedures that should be followed while conducting oral interviews in these colleges. One important instruction was to tape-record the interviews to avoid questions of fact and law in the future and easy determination of the case. This was a landmark case in determining the nature of authorities to be termed as a State.
Sukhdev Singh and Ors. v. Bhagat Ram and Anr. (1975)
In this case, the Supreme Court observed the nature of statutory corporations like Life Insurance Corporation (LIC), Oil and Natural Gas Corporation of India (ONGC) and International Finance Corporation (IFC). The Supreme Court held that these corporations would come under the ambit of the State because they consist of the very basic elements of a State:
- These corporations are created by statutes (statutorily created),
- These corporations have a right to make rules and regulations with the approval of the government (statutorily authorised), and
- These corporations are subject to the pervasive control of the Government.
Justice Mathew further stated about the instrumentality or agency test. He observed that the States run through the instrumentality or agency of natural or juristic persons. Thus, an action of these instrumentalities and agencies could be considered an action of the State. Justice Mathew observed the deciding factors to determine the existence of instrumentality or agency as:
- If the State has financial and administrative control over the functionality of the instrumentality or agency,
- If the State has control over the management and regulations of the instrumentality or agency,
- Whether or not the instrumentality or agency performing a public function,
- Whether or not the instrumentality or agency running its administration for the public benefit.
If the answer to the above questions is affirmative, the State’s relation with the instrumentality or agency is established.
The instrumentality or agency test was further decided in the Ajay Hasia case, where the Court laid down the following determinant factors:
- If the entire share capital of the instrumentality or agency is held by the appropriate Government,
- If the major financial requirements of the instrumentality or agency are through aid from the Government,
- The status of the instrumentality or agency, whether it enjoys a monopoly and whether such monopoly is conferred by State or protected by State,
- The existence of pervasive control by the State,
- The element of public benefit in the functionality of the instrumentality or agency,
- If there is some departmental transfer or intervention of the Government in the instrumentality or agency.
These tests were laid to be the minimum standards and the test is inclusive in nature.
M.C. Mehta and Anr. v. Sri Ram Fertilizers Ltd. and Ors. (1987)
In this case, the Supreme Court held that the ambit of the State under the Indian Constitution should be widened to include private entities. The action of private companies can be treated as State action.
J.P. Unni Krishnan and Ors. v. State of Andhra Pradesh and Ors. (1993)
In this case, the Supreme Court held that universities and private educational institutions come under the ambit of a State. Imparting education is a public function for public benefit. Thus, they shall be held liable for infringement of any Fundamental Rights, especially Article 14 of the Constitution.
Zee Telefilms Ltd. and Anr. v. Union of India and Ors. (2005)
In this case, the Supreme Court talked about the ambit of ‘other authorities’ in the definition of a State. The Court held that the following bodies would fall under the category of other authorities:
- The corporations and societies formed under Article 298 of the Constitution are formed by the State Government to facilitate trading. The share capital of these bodies is state-owned. They are financed by the State Government. These bodies are controlled and maintained under state control.
- Even if certain bodies do not perform sovereign functions but primarily work in research and development for the government or to fulfil governmental functions, they shall fall within the ambit of other authorities.
- When a private entity performs public duties or the duties are of the nature of governmental duty and owes an obligation to the general public, it is said to fall under the category of other authorities within the meaning of a State.
Part III and Part IV of the Constitution are often read together. While Part IV is not enforceable in a court of law, it is a moral obligation of the States to follow it. Part III of the Constitution is one of the core provisions of the Constitution of India and its infringement is punishable by law. It is given utmost importance and even the executive, the legislature and the judiciary (while performing non-judicial functions) are obliged to adhere to these rights and guarantee them to the citizens of the country. For all these purposes, the Constitution defines a State. It is essentially required so as to determine specifically, the bodies, authorities and departments of the Government on which rules of the obligation under Part III and Part IV of the Constitution are applicable. For this reason, the Constitution has defined a State in Article 12 (Part III) and Article 36 (Part IV) of the Constitution. The ambit of the definition has been kept wide, inclusive and exhaustive in order to bring into its ambit all such bodies and authorities that possess the elements of a State and make the rules applicable to them.
The most debated subject has been about the Indian judiciary, whether or not the judiciary would come under the ambit of the definition of a State under the Indian Constitution. It has been determined through different schools of thought and judicial pronouncements. It has reached a decisive point where it was confirmed that the judiciary shall come within the definition of a State while it is performing its non-judicial functions (rule-making functions and other administrative functions) and while performing its judicial functions, the judiciary is excluded from the ambit of the definition of a State. This is done to strike a balance between people’s rights, States’ obligations to guarantee them their rights and the independence of the judiciary. Various judicial pronouncements have helped determine the provisions better and widen the scope of the Articles.
Frequently Asked Questions (FAQs)
What does Article 36 of the Indian Constitution say and how is it related to Article 12 of the Constitution?
Article 36 in Part IV of the Constitution states that for the purpose of Part IV of the Constitution, a State has the same meaning as it has under Article 12 in Part III of the Constitution. Both Articles 36 and 12 define the State to include Government (Central and states), the Parliament, the state legislatures, local authorities and other authorities.
Does the definition of State include the judiciary?
The definition of State includes the judiciary to the extent of the non-judicial functions of the judiciary. These functions include the rule-making powers and administrative functions of the judiciary. The judiciary is excluded from the definition of State when it is performing its judicial functions.
What is the difference between Article 12 and Article 36?
Article 12 defines ‘State’ under Part III of the Indian Constitution. This part deals with the Fundamental Rights and the infringement of the same can be enforced against a state which falls under the definition of Article 12. Whereas, Article 36 defines the state the same way as it does in Article 12 but it belongs to Part IV of the Indian Constitution that deals with the Directive Principles of State Policy. This part of the Constitution cannot be enforced in a court of law. It is directive in nature.
What are the preconditions for a body or entity to be termed as a State under the definition in Article 12?
Apart from the elements of the definition, the bodies and authorities to be termed as a State must fulfil either of the two conditions of the definition of a State:
- It must be within the territory of India, or
- It must be under the control of the Government of India.
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