By Pranika Goel
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Other
Authorities
The
principal reason for ambiguity in the definition of state is this term “other
authorities”. Numerous judicial interpretations have been evolved over the
years to understand the meaning of the term.
Earlier, the Ejusdem Generis rule was applied to interpret the term. This rule states that when a general term is used after some specific terms, the former is to be interpreted to belong to the same general category as do the latter. Hence, in University of Madras v. Shantha Bai[1], the Madras High Court ruled that ‘other authorities’ includes only those bodies which have the same powers as the terms used before that, that is, sovereign powers.
Next,
in Rajasthan Electricity Board v Mohanla1[2],
the Supreme Court overruled the Shantha Bai judgement and held that ‘other
authorities’ includes any body which is statutorily or constitutionally created,
and on which powers are conferred by law. However, in the concurring judgement,
Justice Shah adopted a different test to hold the electricity board as state.
He was of the opinion that the essential test here is of sovereign power with
the authority, which he defined as “power to make rules or regulations and
to administer or enforce them to the detriment of citizens”.
In Sukhdev
Singh v. Bhagatram[3],
the test of instrumentality or agency of state was developed. Mathew, J.,
who wrote the concurring judgement, called the three public corporations- ONGC,
LIC and IFC, as functionalities of the state. The state, assuming a welfare
role under Part IV of the Constitution, behaved also as a ‘service corporation’
and hence any corporation acting as an arm of the state, aiding it in
discharging its welfare obligations would qualify as ‘other authorities’ under
Article 12. He concluded by saying that a body would be ‘an agency or
instrumentality of the state’ if it performs public function, that is, a
function that has wide import on the public at large, which is closely related
to government functions.
Next
was the Government Control Test established in the R.D. Shetty v.
International Airport Authority[4].
Borrowing the agency and instrumentality test, it was added that if the entity
is financially aided by the government; what degree of control, if any, the
government enjoys over its management and policies; whether it enjoys a
monopoly status, which is conferred or protected by the government. The
cumulative effect, rather than an affirmative answer to any one of these
questions would be of relevance. The public function test was also reiterated.
A clear and distinct test to determine what is an agency or instrumentality of state was established by Bhagwati J. in Ajay Hasia v. Khalid Mujib[5]. The test involved the following six considerations:
- whether the entire share capital of the corporation is owned by the Government;
- whether the financial assistance given by the State is enough to cover the entire expenditure of the entity;
- whether the Corporation enjoys a monopoly status which is either Government conferred or Government protected;
- whether there is existence of deep and pervasive State control;
- whether the functions of the entity are of public importance or closely related to Governmental functions;
- whether a Government department is transferred to a corporation.
According
to this test, it was not necessary that the body is statutorily established.
Again, the cumulative effect of these considerations was to be seen.
This test was further elaborated upon in Pradeep Kumar Biswas v.
Indian Institute of Chemical Biology[6],
wherein it was held that rather than focussing on any one of the aforementioned
considerations, the principal question to be determined was whether on an
analysis of facts, the body in question is under the financial, functional and
administrative control of the government, and whether such control is pervasive
and not merely regulatory.
As is quite evident from these precedents, the judicial approach to
the issue of what is state is quite haphazard and unsatisfactory. It is more
relevant to take each case on the basis of its fact and then arrive at a
conclusion. Hence, some examples of other authorities as arrived upon by
various court decisions include Public Corporations like SBI, SAIL, Food
Corporation of India etc.; government companies, nationalized banks, and so on.
“within the territory of India or under the control of the Government of India”
The final phrase to be examined is “within the territory of India
or under the control of the Government of India”. The phrase is used with
connection to ‘local or other authorities’. As is evident from the use of the
word ‘or’, the clause is a disjunctive one, that is, satisfaction of either one
of them would fall within the ambit of the section. Thus, “under the control”
means that even those bodies falling outside the territory of India, but under
the control of the government could be included as state under the article. Hence
it is wider than “within the territory”, which may be interpreted to mean such
entities which are not under the control of the government, but perform public
function. However, the courts have been hesitant is bestowing this
interpretation upon this phrase.
Conclusion
Fundamental
Rights enshrined in Part III of the Constitution are only enforceable against
the State, as defined in Article 12. The definition has been a matter of
judicial scrutiny over the years, primarily due to the use of the term ‘other
authorities’. The test guiding the determination of the same seems to be deep
and pervasive government control. However, in the opinion of the author, public
function test is more apposite to realise the true objectives of Fundamental
Rights. This would enable even those actions of private entities which come
within the domain of public function and infringe upon the rights of an
individual. It is hoped that the future jurisprudence on the issue is more
liberal and favourable to the interests of the individuals, which are unequally
disposed as compared to these powerful entities.
[1]
AIR 1954 Mad 67
[2]
1967 SCR (3) 3771.
[3]
AIR 1975 SC 1331.
[4]
1979 SCR (3) 1014.
[5]
1981 AIR 487.
[6]
(2002) 5 SCC 111
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Pranika Goel is a 2nd year Law student at National Law University, Delhi. Still exploring what her true calling is, she is interested in Constitutional Law, Criminal Law, Corporate Law and Cyber Law. She likes to read fiction, paint and cook to de-stress. A curious soul, she enjoys studying about other fields, particularly Positive Psychology and Mathematics.
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