The Named Authorities
Chapter Twenty-Seven
Syllabus topic 2, "State: Need for widening the definition in the wake of Liberalisation".
Pages 126 to 129 of 711
In one line
Three of the four categories in article 12 are settled and take five minutes; the fourth has taken sixty years.
In the wording a student can write in an exam: article 12 names the Government and Parliament of India, the Government and the Legislature of each of the States, and all local authorities, before adding the residual category of other authorities. The first two cover the executive and the legislature at both levels of the federation, including every department, officer and instrumentality through which executive power is exercised. "Local authority" is not defined in the Constitution, and the accepted meaning is that in section 3(31) of the General Clauses Act 1897: a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.
The Government and Parliament of India
"Government" here means the executive, and it is read functionally rather than formally. It covers the President, the Union Council of Ministers, every ministry and department, and every officer exercising the executive power of the Union. The executive power is defined by article 73 as extending to the matters on which Parliament may legislate.
Three points are examinable.
A department is not a separate legal person, so a challenge lies against the Union of India, but the fundamental rights bind the department's action all the same.
Executive action, not only legislation, is caught. Article 12's whole purpose would fail if only laws were tested. An administrative order, a circular, a policy, a decision to award or refuse a contract, and an executive instruction all bind the State to Part III.
The armed forces are covered, subject to article 33, which permits Parliament to restrict or abrogate the application of the fundamental rights to members of the armed forces and comparable services. See [Limits: Articles 33, 34 and 35].
Parliament, and the State legislatures
The legislature is expressly included, which answers a question that might otherwise be open: a law made by Parliament or a State legislature is action by the State and is subject to Part III.
Two consequences follow.
Article 13(2) forbids the State to make any law taking away or abridging the rights conferred by Part III, and declares any such law void to the extent of the contravention. The inclusion of the legislatures in article 12 is what makes that prohibition operate on them.
A constitutional amendment is a different question. Whether an amendment under article 368 is "law" for the purposes of article 13(2) is the question that produced Golak Nath, the Twenty-fourth Amendment and eventually the basic structure doctrine. It is dealt with in [The Amending Power] and is not an article 12 question at all: nobody doubts that Parliament is the State, the doubt was whether an amendment is law.
The Named Authorities
Distinguish also the legislature acting in its legislative capacity from the House exercising its privileges. The privileges of a House under articles 105 and 194, and its power to punish for contempt, raise a separate question about how far the fundamental rights control them, dealt with in [Legislative Privilege].
Local authorities
The Constitution does not define "local authority", and the definition applied is the one in section 3(31) of the General Clauses Act 1897: a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.
From that definition and the case law, a body is a local authority if it has these characteristics.
A separate legal existence, so that it is a corporate body and not a department.
A defined area within which it functions.
A function of governmental character in that area, of the kind a municipality or a district board performs.
The power to raise its own funds, generally by levying taxes, rates, charges or fees.
A substantial degree of autonomy, so that it is not merely an agent carrying out instructions, though government control by way of supervision does not prevent it being a local authority.
Elected or partly elected composition is typical, though it is the function and the fund that matter more.
So a municipal corporation, a municipality, a nagar panchayat, a zila parishad, a panchayat samiti, a gram panchayat, an improvement trust, a port trust and a cantonment board are local authorities. The panchayats and municipalities now have constitutional status of their own under Parts IX and IXA, dealt with in [Grass Root Democracy: The Panchayats] and [Urban Local Government: The Municipalities], but their status under article 12 does not depend on that.
Why the fourth category exists
The three named categories share a feature: each is a recognisable organ of government, created as such, exercising governmental power in an obvious way.
The fourth category exists because the State does not confine itself to such organs. It creates statutory corporations, forms companies, registers societies, and endows trusts, and each of them is a legal person distinct from the government that made it. If article 12 stopped at the third category, the State could place any activity beyond Part III by the simple device of incorporating it.
That is the problem the courts have spent sixty years on, and it begins in the next chapter.
A worked example
A municipal corporation refuses a trade licence to an applicant on a ground she says is discriminatory. A parallel refusal is made by a State-owned company operating a market. Both are challenged under article 14.
The Named Authorities
The corporation. A municipal corporation is a "local authority" within article 12, taking the meaning from section 3(31) of the General Clauses Act 1897. Test it against the marks: separate legal existence, a defined area, functions of a governmental character in that area, power to raise its own funds by rates and fees, and a real measure of autonomy. A municipal corporation satisfies all five. Article 14 binds it directly and both articles 32 and 226 are available.
The company. A State-owned company is not a local authority: it has no defined area of local government and no power to levy rates. It falls, if anywhere, in the fourth category, "other authorities", and must be tested on the instrumentality question in the following chapters. Ownership of the shares by the State is a significant fact but not by itself decisive.
Why the distinction matters here. For the corporation the question of article 12 does not arise at all: it is answered by the third category, and the argument goes straight to the merits of the discrimination. For the company the case may be lost on the threshold.
A further point on the corporation. Since the Seventy-fourth Amendment, municipalities have constitutional status under Part IXA. That does not change their position under article 12, which never depended on it, but it is worth noticing that the same body is now reached by two different routes.
Quick revision
- The Government and Parliament of India, and the Government and Legislature of each State, are named. Executive action is caught as well as legislation.
- Article 33 permits Parliament to restrict the rights for the armed forces.
- Whether a constitutional amendment is "law" under article 13(2) is a question about article 368, not about article 12.
- "Local authority" takes its meaning from section 3(31) of the General Clauses Act 1897: control or management of a municipal or local fund.
- The marks of a local authority: separate legal existence, a defined area, governmental function, power to raise its own funds, and a real measure of autonomy.
- The fourth category exists because the State acts through separate legal persons, and a definition that stopped at the third would let it escape Part III by incorporation.
Test yourself
1. Name the four categories in article 12 and say which of them has generated the litigation.
2. Is executive action, as distinct from legislation, caught by article 12? What does article 33 permit?
3. Where does the meaning of "local authority" come from, and what are the marks of one?
The Named Authorities
4. Why does the Constitution need a fourth, residual category at all?
5. Is a constitutional amendment "law" for article 13(2)? Explain why that is not an article 12 question.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.