What is included in ‘State’ under Article 12 of the Indian Constitution?

The Constitution of India provides fundamental rights in Part III. The violation of these fundamental rights by State gives the right to invoke constitutional remedies. For the prevention of ambiguity and arbitrary violation of an individual’s rights definition of ‘State’ has been provided under Article 12. According to Article 12 of the Indian Constitution:

  1. The Government and Parliament of India,
  1. the Government and Legislature of the States,
  2. all local or other authorities within the territory of India, or
  3. all the local or other authorities under the control of the Government of India.
  1. Union Executive and Union Legislature: The first category implies that Parliament- Lok Sabha and Rajya Sabha, President and the Government of India are to be considered as ‘state’.
  • State Executive and State Legislature: The second category includes State Legislative Assembly, State Legislative Council, Government of the State and Governor of all the states in India.
  • Local Authorities: The term ‘local authority’ has been defined in Section 3(31) of the General Clauses Act, 1897 as:

       ‘Local authority shall mean a Municipal Committee, District Board, Body of Port Commissioners or other authority legally entitled to, or entrusted by the Government, with the control of management of a municipal or local fund.’

      Further guidelines have been provided by the Supreme Court in Union of India v. R.C. Jain [1] in order to determine an authority as a ‘local authority’ on fulfilment of certain characteristics.

  • Other Authorities: Since what constitutes as ‘other authorities’ has not been clearly defined anywhere the scope of the term remained ambiguous. However, various judgments have been passed to determine the periphery of ‘other authorities’. The first case that dealt with the question is
    • University of Madras v. Shanta Bai [2] in which the Madras High Court concluded that those institutions which have similar functions as the other institutions mentioned in Article 12 are to be included under ‘other authorities’. The judgment was passed on the basis of principle of ejusdem generis which means ‘of the like nature’.
    • In Rajasthan Electricity Board v. Mohan Lal & Ors. [3] the Supreme Court rejected the idea of ejusdem generis and held that the authorities created by a statute, even if they carry commercial functions, are to be included in the meaning of ‘other authorities’.
    • The Supreme Court in Sukhdev v. Bhagatram [4] held Life Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation to be the ‘instrumentalities’ of the government hence regarded them as authorities within Article 12 of the Constitution.
    • The thorough guidelines and test to determine the ‘instrumentalities’ of the government were laid down by the Supreme Court in R.D. Shetty v. International Airport Authority [5].
    • Further in Ajay Hasia v. Khalid Mujib [6] it was clarified that the tests provided in RD Shetty case are not exhaustive in nature’; giving wider interpretation to the ‘other authorities’ it was reiterated that even non-statutory bodies [7] can fall within Article 12. The question was regarding whether a regional engineering college registered under Societies Registration Act, 1898 can be considered ‘state’ under Article 12. The Supreme Court after sleuthing found that the management and funds were controlled by the government and thus regarded that the society can be considered as ‘state’.

The test to determine a body as ‘state’ within the meaning of Article 12 of the Indian Constitution:

  1. The entire share capital is owned by the government.
  2. Such body gets he financial assistance from the state.
  3. Enjoys monopoly status which is conferred by the State.
  4. There is deep and pervasive state control.
  5. The body performs functions of public importance.
  6. Department of government has been transferred to that corporation.

These tests are not conclusive or exhaustive in nature. In Zee Telefilms & Ors. v. Union of India [8], the BCCI (Board of Control for Cricket in India) was not considered a ‘state’ because it didn’t satisfy the above mentioned test- there was no administrative, financial or functional control of the government. However, there are various non-statutory bodies that have been considered ‘state’ under Article 12; for instance- The State Financial Corporation, NAFED (National Agricultural Cooperative Federation of India), CSIR (Council of Scientific and Industrial Research), Indian Telephone Industries Ltd., Delhi Stock Exchange, etc. 

Is Judiciary a State?

It has been settled that judiciary does not fall under Article 12 while performing its judicial functions. However, when the judiciary is exercising its rule-making power under Article 145 is considered ‘state’ under Article 12.

The majority of nine- bench of the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra [9] held that the main function of the judicial bodies is to solve the controversies between the parties who have moved to the court. Thus it is inappropriate to assume that a judicial decision by a Judge of competent jurisdiction could affect the Fundamental Rights.

This decision was further reiterated by the Apex Court in A.R. Antulay v. R.S. Nayak [10] stating that the wrong determination by the court cannot be corrected by writ petition.

Conclusion: The term ‘state’ in Article 12 has been given wide interpretation for the purpose of Part III and Part IV of the Constitution providing fundamental rights and directive principles of State Policy respectively. Once the body has been recognized as ‘state’ within the purview of Article 12 it becomes obligatory for it to maintain harmony with Fundamental Rights of the right bearers, the body becomes subject to the writ jurisdiction under Art. 32 and Art. 226, further, it becomes subject to the discipline of Administrative law. The court has increased the horizon of expression ‘state’ overtime by including statutory bodies, statutory bodies carrying on commercial functions and non-statutory bodies. The aim is to protect the Fundamental Rights; however this does not imply that the institutes that aren’t ‘state’ have no obligation to maintain obedience with Constitution. There are other remedies (Article 226) available to the aggrieved parties if the right has been violated by an authority which is not a ‘state’.

References:

  1. AIR 1981 SC 951.
  2. AIR 1954 Mad. 67.
  3. AIR 1967 SC 1857.
  4. AIR 1975 SC 1331.
  5. AIR 1979 SC 1628.
  6. AIR 1981 SC 487.
  7. Som Prakash Rekhi v. Union of India (AIR 1981 SC 212).
  8. (2005) 4 SCC 649.
  9. AIR 1967 SC 1.
  10. AIR 1988 SC 1531.

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