STATE | ARTICLE 12 OF THE INDIAN CONSTITUTION

 

In this article researcher made a comprehensive and detailed study about Concept of State under Article 12 of the Constitution including landmark Supreme Court cases.

 

1. INTRODUCTION

 

In the realm of constitutional law, the definition of the term “State” holds significant importance as it determines the scope of fundamental rights and their application. In numerous jurisdictions, Article 12 serves as a pivotal provision, explicitly defining the term “State” and its various branches. The interpretation of this Article has far-reaching implications, impacting the rights and liberties of individuals vis-a-vis governmental entities.

 

2. HISTORICAL CONTEXT

 

The roots of Article 12 of the Constitution can be traced back to the concept of “State action” in the United States, which emerged during the civil rights movement. In landmark cases such as Shelley v. Kraemer (1948) and Marsh v. Alabama (1946), the U.S. Supreme Court ruled that certain private entities could be deemed as “State actors" and thus held accountable for violating constitutional rights. This jurisprudential evolution laid the groundwork for the inclusion of similar provisions in other countries constitutions.

 

3. ARTICLE – 12 OF THE CONSTITUTION

 

In this part unless the context otherwise requires the “State” includes the

 

1. government and parliament of India and the
2. government and the legislature of each state or
3. all local or
4. other authorities within the territory of India or under the control of the Government of India.

 

Article 12 defines the term state as used in different articles of part III of the constitution. It says that unless the context otherwise requires the term state includes the following.

 

1. The Government and parliament of India i.e., Executive and legislature of the Union
2. The Government and the legislature of each state i.e., Executive and legislature of states.
3. All local of other authorities within the territory of India.
4. All local or other authorities under the control of Government of India.

 

The term state thus includes executive as well as the legislative organ of the Union and States, it is the actions of these bodies that can be challenged before the courts as violating fundamental rights.

 

This definition is not exhaustive, but it is inclusive one. The executive and legislative organs of union and state are quite specific and self-explanatory.

 

In order to understand the concept of state, we have to first of all explain the words Authority, local authorities and other authorities.

 

a. Authority: According to webster's dictionary "Authority means a person or body exercising power to command. In the context of Article 12, the word authority means the power to make law, orders, regulation, bye-laws, notification etc., which have the force of law and power to enforce these laws

 

b. Local Authority: This is defined in section 3(31) of the general clauses Act, 1897 II refers to authorities like Municipalities, District Board, Panchayat, improvement Trust and Mining settlement Boards

 

c. Other Authorities: This is not defined anywhere, so we have to rely upon the court's interpretation as we have read that the expression other authorities in Article 12 is used after mentioning the executive and legislature of Union and States and all local authorities. Thus, it was held that it could only include authorities of a like nature i.e., ejusdem generis

 

The restrictive interpretation of principle of ejusdem generis was mentioned in University of Madras Vs. Shantha Bai, AIR 1954 Mad 67, the Madras High Court held that other authorities could only indicate authorities of a like nature i.e., ejusdem generis. So construed could only mean authorities exercising governmental or sovereign functions, it can't include persons, natural or juristic such as university unless it is mentioned by the state, but this restrictive interpretation of Madras High Court was rejected by the Supreme Court in Ujjambai Vs. State of U.P., AIR/1962/SC 1621.

 

 

It was held that ejusdem generis rule could not be resorted to in interpreting this expression as there is no common genus running through these named bodies (in Article 12) nor can these bodies be so placed in one single category on any rational basis.

 

In Electricity Board Rajasthan Vs. Mohan Lal, AIR 1967 SC 1857. Narrow interpretation was done by SC in earlier cases. Here it was held that the expression other authorities is wide enough to include all authorities created by the constitution or statute on whom powers are conferred by law. It is not necessary that the statutory authority should be engaged in performing governmental or sovereign function.

 

The test laid down by the Supreme Court in electricity board, Rajasthan case was followed by SC in Sukhdev Singh Vs. Bhagatram AIR 1975 SC 1331. It was held that ONGC, LIC and IFC are authorities within the meaning of A 12 of the constitution. They are state, all of them have power to make regulation under the statute for regulating conditions of service of their employees. The employees are entitled to claim protection of article 14 & 16 of the constitution against the corporation.

 

RD Shetty Vs. Airport authority AIR 1979 SC 1628. In this case it was held that if a body is an agency or instrumentality of government, it may be an authority within the meaning of Art, 12 whether it is a statutory corporation, a government company or even a registered society. The court laid down the following tests for determining whether a body is an agency or instrumentality of the government

 

1. Financial resources of the state is the chief funding source. 
2. Existence of deep and pervasive state control.
3. Functional character being governmental in essence i.e. If the functions of the corporation are of public importance and closely related to governmental function.
4. If a department of government is transferred to a corporation.
5. Whether the corporation enjoys monopoly status which is state conferred or state protected. 

The court said that these tests are not conclusive but illustrative only and will have to be used with care and caution.

 

In Ajay Hasia Vs. Khalid Mujib, AIR 1981 SC 4874, was held that a society registered under the societies Registration Act 1898 is an agency or instrumentality of the state and hence a state within the meaning of Article 12. its composition is determined by the central government. The rules made by the society requires prior approval of the state and central government. The society is to comply with all directions of the government. In this case justice Bhagwati emphasized on why test.

 

MC Mehta Vs. UOI, AIR 1987 SC 1086, without deciding the question finally in an unanimous opinion of the Supreme Court Bhagwati has advanced, strong arguments for including even the non-government companies within the meaning of states it for reasons of States control of registration & the kind of public function they are performing they satisfy the test of being an instrumentality or agency of the government.

 

In Sabhajit Tewary Vs. UOI, 1976 1 SCC 485, Sc held that CSIR in not a state under Article 12.

 

But in Pradeep Kr. Biswas Vs. Indian Institute of Chemical Biology (2002) 5SCC 121: It was held that CSIR is state under Art 12.

 

But it should be remembered that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression “state”.

 

4. WHETHER JUDICIARY IS INCLUDED IN STATES UNDER ARTICLE 12 OR NOT.

 

The judiciary although an organ of the state like the executive and legislature is not specifically mentioned in Article 2. The controversy arises whether the omission is deliberate or not, and we come to the conclusion that the omission of judiciary under Article 12 is deliberate.

 

Judiciary can come under the umbrella of states or not it depends upon the distinction between judicial and non-judicial functions of the courts. If the court is exercising non-judicial functions, in the exercise of its statutory rule-making powers and makes rules which contravene the Fundamental Rights of the citizens the remedy is available under Article 32/226. So, under this function judiciary is a state The non-judicial function can be statutory rule making power or appointment of officer etc. But when the court is exercising his judicial function then what it purports to do is to decide the controversy or to determine scope of Fundamental Rights vis-à-vis legislative and executive action. Then under this case even if it reaches to wrong determination, it does not constitute breach of Fundamental Rights as they are competent to make a right or wrong decision. The remedy against such a mistake is not in alleging violations of the Fundamental Rights but to approach the appropriate court with such allegation in appeal. And when the court is apex (SC) court, then there is remedy of review jurisdiction.

 

In Naresh S. Mirajkar Vs. State of Maharashtra, AIR 1967 SC 1, it was decided that even if a court is state, a writ under Article 32 can't be issued to High Court of competent jurisdiction against its judicial order because such order cannot be said to violate the Fundamental Rights. What the judicial decision purports to do is to decide the controversy between the parties and nothing more.

 

In A.R. Antulay Vs. R.S. Nayak AIR 1988 SC 1531, it was held that the court could not pass an order or issue a direction which would be violative of Fundamental Rights so, it can be said that the expression "state includes judiciary also.

 

Even H.M. Seervai in his view said that judiciary should be included in state and a judge, acting as judge is subject to writ jurisdiction of the Supreme Court.

 

D.D. Basu says that the court like any other organ of the State are limited by constitutional provision and they can't infringe the fundamental rights under the shield that they can make right or wrong decisions.

 

 

If we include judiciary in ‘State’ then it will lead to multiplicity of proceeding by raising violation of Fundamental Rights, first in appeal and then in writ proceedings. Another point is that, however by inclusion of judiciary in Article 12 courts will be obliged to enforce DPSP also as Article 36 will bind them as much as legislature and executive.

 

4. CONCLUSION

 

Article 12 plays a crucial role in the constitutional, as it defines the term “State” and, in turn, determines the scope of the application of fundamental rights and liberties. By encompassing government institutions, public authorities, and certain private entities, Article 12 ensures that individuals can seek protection against State actions that infringe upon their rights. However, the absence of State classification may limit direct access to fundamental rights remedies against State action. As legal systems evolve, the interpretation and application of Article 12 will continue to be subject to scrutiny, ensuring a balance between safeguarding individual rights and promoting the smooth functioning of governance.