This article discusses in detail Article 12 of India’s Constitution, which defines “State”. The definition of state provided in Article 12 is comprehensive but not exhaustive and there are certain authorities and instruments that are not clearly mentioned in this article but may fall within the scope of the definition of state.
The fundamental rights guaranteed by the Indian Constitution were set out in Part III of the Constitution, beginning with Article 12 through Article 35.
The first article in Part III is Article 12, which does not guarantee any right, but specifies the authorities and bodies that are deemed to be the “state” and against which fundamental rights can be enforced.
Article 12 states that the central government, parliament, state government and state legislature fall under the definition of “state”. Apart from that, certain local authorities and other authorities are also referred to as “the state”. In its various landmark judgments, the country’s top court has set the criteria for determining whether a body falls under the heading of local authorities and other authorities and therefore counts as a “state” or not. It was also established that the judiciary can fall under the definition of “state” in the exercise of its administrative functions, but not in the exercise of its judicial function. All of this is discussed in detail below.
Article 12 states: “In this part, unless the context otherwise requires,“ the state ”includes the government and parliament of India, and the government and legislature of each of the states and any local or other authorities within the territory of India or under its control the Indian government. “
The authorities expressly falling under the definition of Article 12 are:
- 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 expressly mentioned in the relevant article. However, the other two categories, ie “local authorities” and “other authorities”, are not very specific. The entities falling under these two categories have been analyzed by the Supreme Court in its various judgments.
The term “local government” usually refers to government agencies such as municipalities, county councils, panchayats, mining settlement agencies, etc. Any entity that is subordinate to the state; in possession; which is controlled and administered by the “state” and performs a public function is a local authority and falls under the definition of the state.
The Supreme Court in the Union of India v RC Jain case set the test for determining which entities would qualify as local authorities for the purposes of the constitutional definition in Article 12 of the Constitution. The question in this case was broadly, “Is the Delhi Development Authority (DDA) a local authority or not?” The court found that an authority:
- Has its own legal existence
- Functions in a defined area
- Has the power to raise funds himself
- Enjoy autonomy, ie self-determination and
- If the law entrusts tasks that are usually assigned to the municipalities, then these authorities would fall under “local authorities” and would thus be “state” within the meaning of Article 12 of the Constitution.
The term “other authorities” within the meaning of Article 12 includes those authorities that do not fall under the first three categories. “Other authorities”, although not defined in the Constitution, has been interpreted broadly by various judgments and now includes a range of authorities.
The Supreme Court in the Rajasthan Electricity Board v. Mohan Lal case set the final test for determining the bodies that would come under the jurisdiction of “other authorities”. The court found that if an authority
- has authority to issue instructions and any violation of this is punishable
- has the power to issue regulations that have legal effect
- is a government agency or body engaged in any commercial or business activity that would otherwise have been carried out by government agencies if those agencies were to fall under the jurisdiction of “other agencies” and would therefore be considered a “government”.
In the case of Sukhdev Singh v. Bhagatram was asked before the court whether ONGC (Oil and Natural Gas Corporation), LIC (Life Insurance Corporation of India) and IFC (International Finance Corporation), created by law, would fall within the purview of “State” under Article 12. “The court followed the test established by the court in the case of the Rajasthan Electricity Board and held these authorities to be” state “within the meaning of” other authorities “under Article 12.
Another case, Sabhajit Tewary v Union of India, was decided by the same bank and on the same day that Sukhdev Singh’s case was decided. In that case, the court wondered whether the Council of Industrial and Scientific Research (CISR), registered under the Societies Registration Act of 1898, would fall under the definition of “state” under Article 12, which would be “state” if:
- It fulfills essential state functions and
- It is under the complete control of the government.
The court ruled that CISR is not a “state” for the purposes of the above requirement.
In the case of RDShetty v. The International Airport Authority of India, a similar question was asked in court as to whether the International Airport Authority was a state. The court, through J. Bhagwati, established the following test to determine whether an entity belongs to “other authorities” and falls under the definition of “state”:
- The financial support provided by the state and the scope of that support;
- When the state provides normal or extraordinary aid ”;
- Type and extent of control of the management and policies of the company by the state;
- The state-granted or state-protected monopoly status;
- The function performed by the corporation would determine whether or not the corporation is an instrument or an agency of the state;
- When one of the bodies is transferred to the government.
The above parameters broadly determine whether an authority is an “other authority” as defined by “State” in Article 12. In light of these tests, the International Airport Authority was classified as a “State”.
In the case of Ajay Hasia v. Khalid Mujib asked a similar question in court whether or not a college established by a registered company falls under the definition of “state”. In this case, the court approved the tests to determine “other authorities”, as provided for in the case of RDShetty. The court further stated: “These tests are neither final nor conclusive. It should be noted that “other authorities” cannot include every autonomous body that has any connection with the government, and that “other authorities” are also subject to certain wise restrictions.
The court also found that, taking into account the factors mentioned in the RDShetty case, if a company is an entity or agency of government, it has to be in the sense of “other authority” and would be “state”.
The next case to come to court on a similar subject was Pradeep Kumar Biswas v. Indian Institute of Chemical Biology. The question asked in court was whether or not the CISR was a state authority or “other authorities” within the meaning of Article 12. It was found that there is no strict rule that every registered company that has any connection with the government must be declared a “state”. If any of the objective tests established in the case of Ajay Hasia are not met, it must be checked whether the facility is functionally, financially and administratively held by the government. If this condition is met, the entity would also fall under “other authority” and would therefore be “State” under Article 12.
The Pradeep Kumar Biswas case serves as a precedent for all further cases related to the interpretation of “other authorities”.
In addition, in the Zee Telefilms v Union of India case, when the question of whether or not BCCI is a state came before the court, the court again applied the tests established in the Ajay Hasia and Pradeep Kumar cases and found BCCI not to be a state.
It should be noted that Article 12 of the Constitution does not specifically speak of the judiciary. The answer to the question of whether or not the judiciary is a state is discussed in detail below.
Whether the judiciary is a state or not?
Although the judiciary is a state organ, unlike the executive and legislative branches, Article 12 does not specifically mention it. Whether or not the judiciary falls under the definition of “state” depends on the nature of the function performed by the courts.
When exercising extrajudicial functions such as administrative or legislative tasks, the courts fall under the definition of “state”. When exercising judicial functions, however, the courts cannot be included in the definition of the state.
In the case of Naresh Sridhar Mirajkar v. Maharashtra State, the question before the court was whether a court order could constitute a violation of fundamental rights and whether such a court order could be made in writing? In this case, the court ruled: “It is unreasonable to assume that a court decision by a competent court could affect the fundamental rights of citizens. What the court decisions dictate is to decide the controversy between the parties in court, and nothing more. “
Therefore, the judiciary for the exercise of its judicial functions cannot fall under the definition of “state” and is not accessible in writing.
In ARantulay v. RSNaik further ruled the court: “If the court order of a competent court accidentally or indirectly prejudices the fundamental rights of a person, then the remedy against such an error is not to claim a violation of the fundamental rights.” And appeal to the courts under Article 32 or 226, but to assert that the decision of the court is incompatible with the fundamental rights, and to turn to the competent court in appeal or review proceedings with such allegations. “
In the light of these factors, the Court found that the judiciary in the exercise of its judicial functions does not fall within the definition of “State” under Article 12.
In the case of Riju Prasad Sarma v. Assam State, the Supreme Court held that a court acting in its judicial capacity cannot be considered a “state”. However, its administrative act is in writing.
According to the interpretation of Article 12 by the country’s highest court, it can be concluded that Article 12, while included, is not exhaustive. In addition to the executive and legislative organs of the state, it also includes certain authorities that meet the requirements of “communal authorities” and “other authorities” in the sense of the state. The scope of the “other authorities” has changed drastically. The judiciary has tried again and again to include more and more organs in the concept of the state so that as many people as possible can enforce their basic rights. It was also found that the judiciary is not a state in exercising its judicial functions. However, the judiciary is state-run in its administrative functions and lawsuits to enforce fundamental rights can be filed if the judiciary contradicts this.