The term 'state' has occurred at many places in many rulings. The
following is an extract that explains the meaning of 'state' in so far
as the constitution of India in reference to Article 12 is concerned. I
am giving the link of the ruling at the end of the post.
My Indian friends would be interested in this ruling as the same
discusses many aspects of statutory interpretation and contracts when
the parties have different bargaining power. The ruling has also been
called as a land mark ruling as it is fairly extensive.
Meaning of State as per Constitution of India
Article 12 of Constitution
The word "State" has different meanings depending upon the context
in which it is used. The expression "The State" when used in Parts III
& IV of the Constitution is not confined to only the federating
States or the Union of India or even to both. By the express terms of
Article 12, the expression "the State" includes :
(i) the Government of India;
(ii) Parliament of India;
(iii) the Government of each of the States which constitute the Union of India;
(iv) the Legislature of each of the States which constitute the Union of India;
(v) all local authorities within the territory of India;
(vi) all local authorities under the control of the Government of India;
(vii) all other authorities within the territory of
India; and
(viii) all other authorities under the control of the
Government of India.
The definition of the expression "the State" in Article 12, is
however, for the purposes of Parts III and IV of the Constitution, whose
contents clearly show that the expression "the State" in Article 12 as
also in Article 36 is not confined to its ordinary and constitutional
sense as extended by the inclusive portion of Article 12 but is used in
the concept of the State in relation to the Fundamental Rights
guaranteed by Part III of the Constitution and the Directive Principles
of State Policy contained in Part IV of the Constitution which
principles are declared by Article 37 to be fundamental to the
governance of the country and enjoins upon the State to apply to make laws.
Article 298 of the Constitution expands the executive power of the
Union of India and of each of the States which collectively constitute
the Union to carry on any trade or business. By extending the executive
power of the Union and of each of the States to the carrying on of any
trade or business Article 298 does not, however, convert either the
Union of India or any of the States which collectively form the Union
into a Merchant buying and selling goods or carrying on either trading
or business activity, for A the executive power of the Union and of the
States whether in the field of trade or business or in any other field,
is always subject to constitutional limitations and particularly the
provisions relating to Fundamental Rights in Part III of the
Constitution and is exercisable in accordance with and for the
furtherance of the Directive Principles of State Policy prescribed by
Part IV of the Constitution. The State is an abstract entity and it can,
therefore only act through its agencies or instrumentalities, whether
such agency or instrumentality be human or juristic. The trading and
business activities of the State constitute "public enterprise". The
structural forms in which the Government operates in the field of public
enterprise are many and varied. These may consist of Government
departments, statutory bodies, statutory corporations, Government
companies etc. The immunities and privileges possessed by bodies so set
up by the Government in India cannot, however, be the same as those
possessed by similar bodies established in the private sector because
the setting up of such bodies is referable to the executive power of the government under Article 298 to carry on any trade or business.
State Instrumentalities
Authorities constituted under and corporations established by
statutes have been held to be instrumentalities and agencies of the
Government in a long catena of decisions of the Supreme Court. The
observations in several of these decisions are general in nature and
take in their sweep all instrumentalities and agencies of the State,
whatever be the form which such instrumentality or agency may have
assumed. If there is an instrumentality or agency of the State which has
assumed the garb of a Government company as defined in section 617 of
the Companies Act[1], it does not follow that it thereby ceases to be an
instrumentality or agency of the State. For the purposes of Article 12
one must necessarily see through the corporate veil to ascertain whether
behind that veil is the face of an instrumentality or agency of the
State. The corporation squarely falls within these observations and it
also satisfies the various tests which have been laid down. Merely
because it has so far not the monopoly of inland water transportation is
not sufficient to divest it of its character of an instrumentality or
agency of the State. It is nothing but the Government operating behind a
corporate veil, carrying out a governmental activity and governmental
functions of vital public importance. There can thus be no doubt that
the corporation is "the State" within the meaning of Article 12 of the
Constitution.
In relation to the particular Case:
The Central Inland Water Transport Corporation is not only a
Government company as defined in section 617 of the Companies Act 1956,
but is wholly owned by the three Governments - Central Government and
the Governments of West Bengal and Assam jointly. It is financed
entirely by these three Governments and is completely under the control
of the Central Government, and is managed by the Chairman and Board of
Directors appointed by the Central Government and removable by it. In
every respect it is thus a veil behind which the Central Government
operates through the instrumentality of a Government company. The
activities carried on by the Corporation are of vital national
importance. There can thus be no doubt that the corporation is a
Government undertaking in the public sector. The corporation itself has
considered that it is a Government of India Undertaking. The complete
heading of the impugned Rule is "The Central Inland Water Transport
Corporation Ltd. (A Government of India Undertaking) Service, Discipline
and Appeal Rules, 1979." In the face of so much evidence it is
ridiculous to describe the corporation as a trading company. The
activities of the corporation are of great importance to public
interest, concern and welfare and are activities of the nature carried
on by a modern State and particularly a modern welfare State.[ Sukhdev
Singh & Ors. v. Bhagat Ram Sardar Singh Raghuvanchi &
Anr., [1975] 3 S.C.R. 619;Ramana Dayaram Shetty v. The International
Airport Authority of India & Anr., [1979] 3 S.C.R. 1014; Managing
Director, Uttar Pradesh Ware Housing Corporation & Anr. v. Vinay
Narain Vajpayee, [1980] 2 S.C.R. 773; Ajay Hasia etc. v. Khalid Mujib
Sehravardi & Ors. etc., [1981] 2 S.C.R. 79; Prakash Rekhi v. Union
of India & Anr., [1981] 2 S.C.R. 111; B.S. Minhas v. Indian
Statistical Institute & Ors [1983] 4 S.C.C. 582; Manmohan Singh
Jaitla v. Commissioner, Union Territory of Chandigarh & Ors., [1984]
Supp. S.C.C. 540; Workmen of Hindustan Steel Ltd. & Anr. v.
Hiodustan Steel Ltd. & Ors., [1984] Supp. S.C.C. 554, 560; - P.K.
Ramachandra Iyer & Ors. v. Union of India & Ors., [1984] 2
S.C.R. 141; A.L. Kalra v. Project and Equipment Corporation of India
Ltd., [1984] 3 S.C.R. 316 and West Bengal State Electricity Board &
Ors. v. Desh Bandhu Ghosh & Ors., [1985] 3 S.C.C. 116
followed. Praga Tools Corporation v. C.A. Imanual & Ors., [1969] 3
S.C.R. 773; State of Bihar v. Union of India & Anr., [1970] 2 S.C.R.
522; S.L. Agarwal v. General Manager, Hindustan Steels Ltd., [1970] 3
S.C.R. 363; Sabhajit Tewary v. Union of India & Ors.,[1975] 3 S.C.R.
616; and S.C. Dhanoa v. Municipal Corporation Delhi & Ors., [1981] 3
S.C.C. 431 distinguished.Rai Sahib Ram Jewaya Kapur & Ors. v. State
of Punjab, [1955] 2 S.C.R. 225; Rajasthan State Electricity Board,
Jaipur v. Mohan Lal & Ors., [1967] 3 S.C.R. 377; Gurugobinda Basu v.
Sankari Prasad Ghosal & Ors., [1964] 4 S.C.R. 311, 315; Rylands v.
Fletcher, [1868 L.R. 3 H.L. 330 and Donoghue v. Stevenson, [1932] A.C.
562 referred to.]
1.As the corporation is "the State" within the meaning of Article
12, it was amenable to the writ jurisdiction of the High Court under
Article 226.
2. It is now well-established that an instrumentality or agency of
the State being "the State" under Article 12 of the Constitution is
subject to the Constitutional limitations, and its actions are State
actions and must be judged in the light of the Fundamental Rights
guaranteed by Part III of the Constitution. The actions of an
instrumentality or agency of the State must, therefore, be in conformity
with Article 14 of the Constitution. [Sukhdev singh & Ors. v.
Bhagatram Sardar Singh Raghuvanshi & Anr., [1975] 3 S.C.R.
619;Ramana Dayaram Shetty v. The International Airport Authority of
India & Ors., [1979 3 S.C.R. 1014; Ajay Hasia etc. v. Khalid Mujib
Sehravardi & Ors. etc., [1981] 2 S.C.R. 79; and Union of India v.
Thulsiram Patel etc., [1985] 3 S.C.C. 398 referred to. Radhakrishna
Agarwal & Ors. v. State of Bihar & Ors., [1977] 3 S.C.R. 249
distinguished.] the purposes of both Part III and Part IV of the
Constitution, State actions, including actions of the instrumentalities
and agencies of the State, must not only be in conformity with the
Fundamental Rights guaranteed by Part III but must also be in accordance
with the Directive Principles of State Policy prescribed by Part IV.
Clause (a) of Article 39 provides that the State shall, in particular,
direct its policy towards "securing that the citizens, men and women,
equally have the right to adequate means of livelihood." Article 41
requires the State, within the limits of its economic capacity and
development, to "make effective provision for securing the right to
work." An adequate means of livelihood cannot be secured to the citizens
by taking away without any reason the means of livelihood. The mode of
making "effective provision for securing the right to work" cannot be by
giving employment to a person and then without any reason throwing him
out of employment. The action of an instrumentality or agency of the
State, if it frames a service rule such as clause (a) of Rule 9 or a
rule analogous thereto would, therefore, not only be violative of
Article 14 but would also be contrary to the Directive Principles of
State Policy contained in clause (a) of Article 39 and in Article 41
Duties of State
When our Constitution states that it is being enacted to give to
all the citizens of India "Justice, Social, economic and political",
when clause (I) of Article 38 of the Constitution directs the State to
strive to promote the welfare of the people by securing and protecting
as effectively as it may a social order in which social, economic and
political justice shall inform all the institutions of the national
life, when clause (2) of Article 38 directs the State in particular, to
minimise the inequalities in income, not only amongst individuals but
also amongst group of people residing in different areas or engaged in
different vocations and when Article 39 directs the State that it shall,
in particular, direct its policy towards securing that the citizens men
and women equally, have the right to an adequate means of livelihood
and that the operation of the economic system does not result in the
concentration of wealth and reasons of production to the common
detriment and that there should equal pay for equal work for both men
and women, it is the doctrine of distributive justice which is speaking
through the words of the Constitution. [Lingappa Pochanna Appelwar v.
State of Maharashtra & Anr., [1985] 1 S.C.C. 479 referred
to.][quoted from: Central Inland Water ... vs Brojo Nath Ganguly &
Anr ; 1986 AIR 1571, 1986 SCR (2) 278 Supreme Court of India]
Constitution-IP
______________________________ __
[1] "617. Definition of 'Government Company'.-
For the purposes of this Act Government company means any company
in which not less than fifty-one per cent of the paid-up share capital
is held by the Central Government, or by any State Government or
Governments, or partly by the Central Government and partly by one or
more State Governments and includes a company which is a subsidiary of a
Government company as thus defined."
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