PROJECT

OF

Constitutional Law - I

TOPIC

“Pradeep Kumar Biswas v. Indian Institute of Chemical Biology”

A Critical Analysis

BY

Ujas Patel

Student

BBA LL.B

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 Table of Contents

1. Introduction of the Case…………...……………………........................…3

2. Facts of the Case…………………………………………………..……5

3. Issues Involved …………………………………………………..……...6

4. Judgement of the Court………………………………………………........7

5. Critical Analysis ………………………………………………………...12

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INTRODUCTION TO THE CASE

The Constitution of India from the time it’s being framed granted certain
fundamental rights to its citizens. The same was mentioned in the Part – III of
the Indian Constitution. The fundamental rights so guaranteed under the
Constitution of India can be enforced against the state. The constitution also
defines the word of ‘state’ under article 12. The definition is made restricted to
the Part – III of the Constitution of India.

The article 12 of the Constitution defines ‘state’ as - “ In this part, unless the
context otherwise requires, “the state” includes the Government and Parliament
of India and the Government and the Legislature of each of the State and all
local or other authorities within the territory of India or under the control of the
Government of India. ”

From the above definition we could conclude that the State includes the
following –

(1) The Government and Parliament of India i.e. it includes the Executives and
the Legislature of the Union.

(2) The Government and the Legislature of each State i.e. it includes both the
Executives and Legislature of the States.

(3) All local or other authorities within the territory of India.

(4) All local and other authorities under the control of the Government of India.

Therefore whenever one feels that his/her fundamental right/s is violated by the
actions of any of these bodies he/she can approach the Court .

The confusion always has been regards to the term Local and Other Authorities.
The term Local authorities are defined in the General Clauses Act u/s 3(31) as

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the authorities like Municipalities, district boards, panchayats, Improvement
Trust and Mining Settlement Boards.

As for the term other authorities has always been confusing and the same has
been decided by the Honourable Supreme Court in a series of decisions. The
present case is also one of such cases where the court has decided as to what
will be included in the list of other authorities.

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FACTS OF THE CASE

In 1972 Sabhajit Tewary v. Union of India 1 , a junior stenographer with the

Council of Scientific and Industrial Research (CSIR) filed a writ petition u/a 12
of the Constitution of India claiming the parity of remuneration with the
stenographers who were newly recruited to the CSIR. The claim so made was
based on Art. 14. A five Judges Bench decided the case and denied the
petitioner the benefit of that article because they held that the writ petition was
not maintainable on the ground that it (CSIR) was not an ‘authority’ under the
meaning of the Article 12 of the Indian Constitution. The present case asks for
the reconsideration of the decision given herein.

The main reason as to how it lead to the filing of the case was a writ application
filed by the applicants in the Calcutta High Court challenging the termination of
the applicant by the Respondent no. 1 which is a unit of CSIR. The Applicants
prayed for an interim order before the Learned Single Judge. The same was
refused by the Court on the Prima view that the application was itself was not
maintainable against the Respondent no. 1. The appeal was also dismissed in the
view of the decision of this court in Sabhajit Tewary’s case.

Challenging the order of the Calcutta High Court, the appellants filed the appeal
by was of a Special Leave2 before this Court. A Bench of two Judges referred
the matter to a Constitution Bench being of the View that the Sabhajit Tewary’s
case required reconsideration. The reasoning given by the Court was “having
regard to the pronouncement of this court in several subsequent decisions in
respect of the several other institutes of similar nature set up by the UOI.
1
AIR 1975 SC 1329
2
136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces

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ISSUES INVOLVED

The court while entertaining the petition filed by the applicants under the
Article 136 of the Indian Constitution which can be made from any order,
determination, sentence, judgement or decree of any cause or matter passed or
made by any court or tribunal in the territory of India made issues which were
the subject matter in the Special Leave Petition of the applicant.

The Court regarding the same made issues as:

(a) Whether CSIR was a ‘state’ within the meaning of the article 12 of the
Indian Constitution?

If the court was able to decide this issue the same would enable the
applicant to ask for remedy as of for the infringement of the Part – III of the
Indian Constitution which contained the Fundamental Rights which are
guaranteed by the Constitution to each and every citizen of India.

(b) Whether the court should reverse a decision which stood for over a quarter
of century if the CSIR is decided to be a State under the Article 12 of the Indian
Constitution?

The court deciding the CSIR to be a state under the Article 12 of the
Indian Constitution would grant the applicant a right to ask for a remedy for the
infringement of its Fundamental Rights guaranteed by the Constitution under its
Part – III which would then overrule a decision of the Apex Court in the case of
Sabhajit Tewary v. UOI 3.

3
See supra. note 1

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JUDGEMENT OF THE COURT

The Constitution has to an extent defined the word “State” in Article 12 itself as
including “the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities within the
territory of India or under the control of the Government of India”. An
“inclusive” definition is generally not exhaustive. The words “State” and
“authority” used in Article 12 therefore remain among “the great generalities of
the Constitution” the content of which has been and continues to be supplied by
courts from time to time.

The range and scope of Article 14 and Article 16 have been widened by a
process of judicial interpretation so that the right to equality now not only
means the right not to be discriminated against but also protection against any
arbitrary or irrational act of the State. Keeping pace with this broad approach to
the concept of equality under Articles 14 and 16, courts have sought to curb an
arbitrary exercise of power against individuals by “centres of power”, and there
was correspondingly an expansion in the judicial definition of “State” in Article
12.

The significance of Article 12 lies in the fact that it occurs in Part III of the
Constitution which deals with fundamental rights. The various articles in Part
III have placed responsibilities and obligations on the “State” vis-à-vis the
individual to ensure constitutional protection of the individual’s rights against
the State, including the right to equality under Article 14 and equality of
opportunity in matters of public employment under Article 16 and most
importantly, the right to enforce all or any of these fundamental rights against
the “State” as defined in Article 12 either under Article 32 or under Article 226.

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After referring to several decisions on this issue, the majority held that the tests
formulated in Ajay Hasia v. Khalid Mujib 4are not a rigid set of principles so
that if a body falls within any one of them it must, ex hypothesi, be considered
to be a State within the meaning of Article 12. The question in each case would
be – whether in the light of the cumulative facts as established, the body is
financially, functionally and administratively dominated by or under the control
of the Government. Such control must be particular to the body in question and
must be pervasive. If this is found then the body is a State within Article 12. On
the other hand, when the control is merely regulatory whether under statute or
otherwise, it would not serve to make the body a State.

The Court while deciding this case also referred to the cases of Rajasthan
Electricity Board v. Mohan Lal 5 where the court decided the electricity board
of the State to be State under the definition of Article 12. In Sukhdev v.
6
Bhagatram as observed by Mathew, J. the decision of Rajasthan Electricity
Board was rightly decided making ONGC, LIC, and IFC to be state u/a 12.

In P.K. Ramachandra Iyer v. Union of India7 it was held that both the Indian
Council of Agricultural Research ICAR and its affiliate Indian veterinary
Research Institute our bodies as would be comprehended in the expression other
authority in article 12 of the Constitution.

CSIR was “created” by the Government to carry on in an organized manner

what was being done earlier by the Department of Commerce of the Central
Government. In fact the two research bodies which were part of the Department
of Commerce have since been subsumed in CSIR.

The objects which have been incorporated in the memorandum of association of

CSIR manifestly demonstrate that CSIR was set up in the national interest to
4
(1981) 1 SCC 722,
5
(1967) 3 SCR 377
6
AIR 1975 SC 1331
7
(1984) 2 SCC 141

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further the economic welfare of the society by fostering planned industrial
development in the country. Such a function is fundamental to the governance
of the country. CSIR was and continues to be a non-profit-making organization
and according to clause 4 of CSIR’s memorandum of association, all its income
and property, however derived shall be applied only “towards the promotion of
those objects subject nevertheless in respect of the expenditure to such
limitations as the Government of India may from time to time impose”.

From the Rules and Regulations, 1999 of CSIR, the dominant role played by the
Government of India in the Governing Body of CSIR is evident. The Director
General who is ex officio Secretary of the Society is appointed by the
Government of India [Rule 2(iii)]. Furthermore, the members of the Governing
Body who are not there ex officio are nominated by the President and their
membership can also be terminated by him and the Prime Minister is the ex
officio President of CSIR.

Under Bye-laws 12, 15, 14 and 19 various service rules and orders, pay scales
and reservation rules applicable to the government servants are applicable to the
employees of CSIR. Moreover, CSIR cannot lay down or change the terms and
conditions of service of its employees and any alteration in the bye-laws can be
carried out only with the approval of the Government of India (Bye-law 20).

The present financial position of CSIR is that at least 70% of the funds of CSIR
are available from grants made by the Government of India. Under Bye-law 6,
funds of the Society may be invested only in such manner as prescribed by the
Government of India. The non-governmental contributions are a pittance
compared to the massive governmental input.

CSIR is therefore both historically and in its present operation subject to the
financial control of the Government of India. The assets and funds of CSIR
though nominally owned by the Society are in the ultimate analysis owned by

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the Government. Hence, from whichever perspective the facts are considered,
there can be no doubt that the conclusion reached in Sabhajit Tewary8 case
was erroneous. If the decision of Sabhajit Tewary had sought to lay down as a
legal principle that a society registered under the Societies Act or a company
incorporated under the Companies Act is, by that reason alone, excluded from
the concept of State under Article 12, it is a principle which has long since been
discredited.

Since on a re-examination of the question, the Supreme Court has come to the
conclusion that the decision in Sabhajit Tewary case was plainly erroneous, it is
the duty of the Supreme Court to say so and not perpetuate the mistake. Sabhajit
Tewary decision must be and is in the circumstances overruled.

Hence, it was held by the majority opinion of 5 judges that CSIR is a “state”
within the meaning of Article 12 of the Constitution. The 2 dissenting judges,
however, gave contrary minority opinion.

The two dissenting judges who gave the contrary minority opinion gave certain
reasoning as to why CSIR should not be included under the definition of state
given in the Constitution of India under article 12 of part – III.

The reasoning given was as follows, firstly simply by holding a legal entity to
be an instrumentality or agency of the state it does not necessarily become an
authority within the meaning of the ‘Other authorities’ in article 12. To be an
authority, the entity should have been created by statute or under a statute and
functioning with liability and obligations to public. Further the statute creating
the entity should have vested that entity with power to make law or issue
binding directions amounting to law within the meaning of article 13(2)

8
Supra note 3

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governing its relationship with other people or the affairs of other people, their
rights, duties, liabilities, or other legal relations.

Secondly the tests laid down in Ajay Hasia's case are relevant for the purpose of
determining whether an entity is an instrumentality or agency of the state.
Neither all the tests are required to be answered in positive nor a positive
answer to one or two tests would suffice. It will depend upon a combination of
one or more of the relevant factors depending upon the essentiality and
overwhelming nature of such factors in identifying the real source of governing
power.

The judges in this dissenting judgement were of the opinion that CSIR was not
an authority so as to fall within the meaning of the expression ‘other authorities’
under article 12. It had no statutory flavour neither did it owes its birth to a
statute nor is there were any other statute conferring it with such powers as to
enable it being branded as an authority. The inditia of power is absent. It does
not discharge such functions as the governmental or closely associated
therewith or being fundamental to life of people.

As per the dissenting opinion the CSIR was not a state within the meaning of
article 12 and Sabhajit Tewary’s case show was correctly decided and must hold
the field. The High Court has rightly followed the decision of the court in
Sabhajit Tewary. The appeal is liable to be dismissed.

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CRITICAL ANALYSIS

The court in this case was correct at deciding that CSIR was an instrumentality
of the state within the meaning of article 12 of the constitution. The majority
held it correct that the object incorporated in the Memorandum of CSIR
manifestly demonstrated that CSIR was set up in the national interest to further
the economic Welfare of the society by fostering planned development in the
country.

The Government of India had a dominant role in governing the body of CSIR.
All the members of the governing body except ex officio members were
nominated by the President and their membership was also to be terminated by
him. The Prime Minister was the ex-officio president.

The court was right in putting its emphasis on the instrumentality test laid down
in the case of Ajay Hasia vs Khalid Mujib.

The case of Ajay Hasia said that even society registered under the Societies
Registration Act, 1898 was an agency or instrumentality of the state and hence
state within the meaning of article 12. Where the composition is determined by
the central government and the rules made by the society require prior approval
of the State or Central government it can be aptly said that there was a larger
hand of the government in determining the working of the society. Therefore it
can be said that the society herein in the case was also an instrumentality of the
government making it an Authority under article 12.

There was therefore a need to overrule the previous judgement of the Apex
Court in the Sabhajit Tewary case as there were many judgements after it
wherein many of the organisations were decided to an instrumentality of the
state taking them under the ambit of article 12 of the Indian Constitution.

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