In this article, the author has explained the meaning of Article 12 of the Constitution with the help of Judicial precedents.
The present article discusses in detail Article 12 of the Indian Constitution, which defines ‘State’. The definition of State provided under Article 12 is inclusive but not exhaustive and there are certain authorities and instrumentalities that though not clearly mentioned under the said article, can be brought within the purview of the definition of the state.
The first article under Part III is Article 12, which does not guarantee any right but specifies the authorities and the bodies, that are deemed to be “state” and against whom the fundamental rights can be enforced.
Article 12 states that the Central Government, the Parliament, State Government, and State Legislatures come within the definition of “state”. Apart from these, certain local authorities and other authorities are also said to be “state”.
The apex court of the country through its various landmark judgments has laid down the tests for determining whether a body would fall within the meaning of the term local authorities and other authorities and hence would be considered “state” or not.
It has also been laid down that judiciary in the exercise of its administrative functions can come under the definition of “state” but not in the exercise of its judicial function. All of these are discussed below in detail.
Article 12 states
“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 States and all local or other authorities within the territory of India or under the control of the Government of India.“
The authorities that are expressly included within the definition of Article 12 are as follows:
- Government and Parliament of India;
- Government and Legislature of each of the States;
These legislative and executive wings of the Union and the States are expressly and specifically mentioned in the concerned article.
However, the other two categories i.e., “local authorities” and “other authorities” are not quite specific. The bodies that come under these two categories have been analyzed by the Supreme Court through its various judgments.
The expression “local authorities” usually refers to authorities such as municipalities, District Boards, Panchayats, mining settlement boards, etc. Anybody functioning under the state; owned; controlled and managed by the “state” and carrying out a public function is a local authority and comes within the definition of the state.
The Supreme Court in the case of Union of India v. R.C. Jain laid down the test for determining which bodies would be considered as a local authority under the definition of state enshrined under Article 12 of the constitution. The issue in this case broadly was ‘Whether Delhi Development Authority (DDA) is a local authority or not?’ The Court held that if an authority:
- Has a separate legal existence
- Functions in a defined area
- Has the power to raise funds on its own
- Enjoys autonomy i.e., self rule and
- Is entrusted by statute with functions which are usually entrusted to municipalities, then such authorities would come under ‘local authorities’ and hence would be ‘state’ under Article 12 of the Constitution.
The term ‘other authorities’ under Article 12 encompasses those authorities that do not fall within the first three categories. ‘Other Authorities’ though not defined in the constitution has been widely interpreted through various judgments and now includes a number of authorities under it.
The Supreme Court in the case of Rajasthan Electricity Board v. Mohan Lal laid down the conclusive test for determining the bodies that would come under the ambit of ‘other authorities’. The court held that if an authority
- has the power to issue directions and any offense against them is punishable by law
- has the power to make rules that would have statutory effect
- is an agency or instrumentality of state for carrying out trade or business which otherwise would have been carried out by the state departments, such authorities would come within the purview of ‘other authorities’ and hence would be considered ‘state’.
In the case of Sukhdev Singh v. Bhagatram, the question before the court was ‘whether ONGC (Oil and Natural Gas Corporation), LIC (Life Insurance Corporation of India) and IFC (International Finance Corporation) created by statutes would come under the purview of ‘state’ under Article 12.’
The court, in this case, followed the test laid down by the court in the case of Rajasthan Electricity Board and held these authorities to be ‘state’ as they came within the meaning of ‘other authorities’ under Article 12.
Another case, Sabhajit Tewary v. Union of India was decided by the same bench and on the same day on which Sukhdev Singh’s case was decided.
The question before the court, in this case, was whether the Council of Industrial and Scientific Research(CISR), which is registered under the Societies Registration Act, 1898 would come within the definition of ‘state’ under Article 12. The Supreme Court observed that a body would be ‘state’ if :
- It is performing essential state function and
- It is under the pervasive control of the Government.
The court held CISR not to be ‘state’ as per the above said requirement.
In the case of R.D.Shetty v. The International Airport Authority of India, a similar question was raised before the court that whether International Airport Authority is a state. The court through J.Bhagwati laid down the following test to determine whether a body is included within ‘other authorities’ and comes within the definition of ‘state’ :
- The financial assistance given by the State and magnitude of such assistance;
- If any usual or extraordinary assistance is provided by the State’;
- Nature and extent of control of management and policies of the corporation by the state;
- The state conferred or state protected monopoly status;
- The function carried out by the corporation would ascertain whether the body is an instrumentality or agency of the state or not;
- If one of the body is transferred to the government.
The above-said parameters broadly determine whether an authority is ‘other authority’ as per the definition of ‘state’ under Article 12. Considering these tests, International Airport Authority was held to be ‘state’.
Again, in the case of Ajay Hasia v. Khalid Mujib, a similar question arose before the court that whether a college that was established by a registered society would come under the definition of ‘state’ or not.
The court, in this case, approved the tests for determining ‘other authorities’ as laid down in the case of R.D.Shetty. The court further observed that
“These tests are not final or conclusive in nature. It must be noted that ‘other authorities’ cannot include every autonomous body which has some connection with the government and that ‘other authorities’ is also subject to certain wise limitations”.
The court further held that on considering the factors mentioned in the case of R.D.Shetty, if a corporation is an instrumentality or agency of the government, it must become within the meaning of ‘other authority’ and would be ‘state’.
The next case that came before the court on a similar issue was Pradeep Kumar Biswas v. the Indian Institute of Chemical Biology. The question before the court was whether CISR was an instrumentality of the state or comes within ‘other authorities’ under Article 12 or not.
It was held that there is no strict rule that every registered society having any connection with the government, to be declared as ‘state’. If any of the objective tests laid down in the case of Ajay Hasia is not fulfilled, then the check must be whether the body is functionally, financially, and administratively held by the government. If this condition is fulfilled, then also the body would come under ‘other authority’ and hence would be ‘state’ under Article 12.
The case of Pradeep Kumar Biswas acts as a precedent for all further cases related to the interpretation of ‘other authorities’.
Further, in the case of Zee Telefilms v. Union of India, when the issue came before the court whether BCCI is a state or not, the court again applied the tests laid down in Ajay Hasia and Pradeep Kumar’s case and held BCCI, not a state.
It must be noted that Article 12 of the Constitution does not specifically talk about Judiciary. The answer to the question of whether the judiciary is a state or not is discussed below in detail.
Whether Judiciary is a state or not ?
Judiciary, though an organ of the state, is not specifically mentioned in Article 12, unlike the executive and the legislature. Whether the judiciary comes under the definition of ‘state’ or not depends on the type of function carried out by the courts.
In the exercise of non-judicial functions such as administrative or legislative, the courts fall within the definition of ‘state’. However, in the exercise of judicial functions, the courts cannot be brought within the definition of the state.
In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra, the issue before the court was whether a judicial order could be in violation of fundamental rights and if such judicial order amenable to writ?
The court, in this case, held that
“It is inappropriate to assume that a judicial decision pronounced by a court of competent jurisdiction can affect the fundamental rights of the citizens. What the judicial decisions purports to do is to decide the controversy between the parties brought before the court and nothing more.”
Therefore, the judiciary for discharge of its judicial functions cannot come under the definition of ‘state’ and is not amenable to the writ.
Further, in A.R.Antulay v. R.S.Naik, the court held that
“If incidentally or indirectly, the judicial order of a competent court affects the fundamental rights of a person, then the remedy against such a mistake is not to allege a violation of the fundamental rights and approach the courts under Article 32 or 226, but to allege that the decision of the court is not consistent with the fundamental rights and approach the appropriate court with such allegations in appeal or review.”
Considering these factors,court held that judiciary in exercise of its judicial functions does not come within the definition of ‘state’ under Article 12.
In the case of Riju Prasad Sarma v. State of Assam, it was held by the Supreme Court that when a court is acting in its judicial capacity, it cannot be considered as ‘state’. However, its administrative action is amenable to writ.
As per the interpretation of Article 12 by the apex court of the country, it can be concluded that Article 12 though inclusive is not exhaustive. Apart from the executive and the legislative organs of the state, it also includes certain authorities, which fulfills the condition of ‘local authorities’ and ‘other authorities’ within the definition of the state.
The scope of ‘other authorities’ has witnessed a drastic change. Judiciary has time and again tried to include more and more bodies within the definition of state so that maximum people can enforce their fundamental rights. Further, it has been held that the judiciary in the exercise of its judicial functions is not a state.
However, the judiciary is stated with respect to its administrative functions, and writs for enforcement of fundamental rights can be filed if the action of the judiciary is in contravention of it.