Local authorities

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Article 12 defines the term ‘State’ as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term ‘State’ includes the following ;- 1. The Government and Parliament of India, i.e., Executive and Legislature of the Union. 2. The Government and Legislature of each State, i.e., Executive and Legislature of State.. 3. All local and other authorities within the territory of India. 4. All local and other authorities under the control of the Government of India.

The term ‘State’ thus includes executives as well as the legislative organs of the Union and States. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.

a) Authorities – According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. In the context of Article 12, the word “authority” means the power to make laws, orders, regulations, bye-laws, notification etc. which have the force of law and power to enforce those laws.

b) Local Authorities - ‘Local authorities’ as defined in Section 3 (31) of the General Clause Act refers to authorities like Municipalities, District Boards, Panchayats, Improvement Trust and Mining Settlement Boards. In Mohammed Yasin v. Town Area Committee, the Supreme Court held that the bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an order by a State authority contravened article 19 (1) (g). these bye-laws I effect and in substance have brought about a total stoppage of the wholesale dealer’s business in the commercial sense. In Sri Ram v. The Notified Area Committee, a fee levied under Section 29 of the U.P. Municipalities Act, 1919, was held to be invalid.

c) Other authorities - in Article 12 the expression ‘other authorities’ is used after mentioning a few of them, such as, the Government, Parliament of India, the Government and Legislature of each of the State and all local authorities. In University of Madras v. Santa Bai, the Madras High Court held that ‘other authorities’ could only mean authorities exercising governmental or sovereign functions. It cannot include persons, natural or juristic, such as, a University unless it is ‘maintained by the State’.

In Article 12 the bodies specifically named are the Government of the Union and the States, the Legislature of the Union and the States and local authorities. There is no common genus running through these named bodies nor can these bodies so placed in one single category on any rational basis. State Under Indian Constitution Part III of the Constitution deals with Fundamental Rights which are the restriction on the power of the legislature, executive and judiciary, that, no one can encroach upon this part. In order to define the scope of these rights and the scope of remedy under Article 32 constitution makers have defined “State” in the beginning as under:

“the Government and the Parliament of India and the Government and the Legislature of each of the State and all local or other authority within the territory of India or under the control of the Government of India”

Therefore to understand the expanded meaning of the term “other authorities” in Article 12, it is necessary to trace the origin and scope of Article 12 in the Indian Constitution. Present Article 12 was introduced in the Draft Constitution as Article 7. While initiating a debate on this Article in the Draft Constitution in the Constituent Assembly, Dr.Ambedkar described the scope of this Article and the reasons why this Article was placed in the Chapter on fundamental rights as followed:

“The object of fundamental rights is twofold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority – I shall presently explain what the word ‘authority’ means – upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village Panchayats and taluk boards, in fact every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws.

If that proposition is accepted – and I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by laws then, what are we to do to make our intention clear? There are two ways of doing it one way is to use a composite phrase such as ‘the State’, its we have done in Article 7; or, to keep on repeating every time, the Central Government the Provincial Government the State Government the Municipality, the Local Board, the Port Trust or any other authority’. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economies in words.”

From the above, it is seen that the intention of the Constitution framers in incorporating this Article was to treat such authority which has been created by law and which has got certain powers to make laws to make rules and regulations to be included in the term “other authority” as found presently in Article 12. This definition has given birth to series of judgments and cases primarily due to inclusion of words “authority” in the last part of the definition.

Attempts have been made to determine the scope this word initially the definition of State was treated as exhaustive and confined to the authorities or those which could be read ejusdegeneris with the authorities mentioned in the definition of Article 12 itself.

The next stage was reached when the definition of ‘State’ came to be understood with reference to the remedies available against it. For example, historically, a writ of mandamus was available for enforcement of statutory duties or duties of a public nature. Thus a statutory corporation, with regulations farmed by such Corporation pursuant to statutory powers was considered a State, and the public duty was limited to those which were created by statute.

The decision of the Constitution Bench of this Court in Rajasthan Electricity Board v. Mohan Lal and Ors, is illustrative of this. The question there was whether the Electricity Board – which was a corporation constituted under a statute primarily for the purpose of carrying on commercial activities could come within the definition of ‘State’ in article 12.