Article 12 – What does the Indian Constitution mean by ‘State’?

Supreet Kaur

Fundamental Rights contained in Part III of our Constitution are available against the State. So, it is the duty of the State to secure fundamental rights available to the citizens and State cannot act in such a way which infringes the rights available to us under Part III. These can be enforced against State only.

So, what is included in the term State is defined under Article 12 of the Constitution. Article 12 defines the term State only for the purpose of Fundamental rights contained in Part III.

Article 12: “Definition: 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.”

So, Article 12 includes:

• The Government and Parliament of India.
• The Government and the legislature of each States.
• All (i)local or (ii) other Authorities within the territory of India.
• All local or other Authorities under the control of Government of India.

The Government and Parliament of India

The government includes all the departments of government like Income tax department or any institute under the control of that department like Forest research Institute, Dehra Dun.^[1] The Parliament includes both houses that is Lok Sabha and Rajya Sabha and the executive body. President is also included in the term State.

Government and legislature of each State

Any Department of the government or any institute therein is also included in the term State. State also includes the House of State Legislatures that is legislative assembly or both houses where there is a legislative council as well.

Local Authorities

The term local authority is defined under 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 or management of a municipal or local fund”

It follows that the nature or character of a local authority must be like that of a Municipal committee which is entrusted with the control and management of a local fund.

By this interpretation, the following bodies were added into the list of local authority from time to time by various judicial decisions.

In Ajit Singh v. State of Punjab,^[2] S.C. held that a village panchayat is a local body within the meaning of Article 12.

A Municipal board^[3], Municipal Corporation^[4], a Port Trust^[5] are also local authorities and they cannot violate the fundamental rights available to citizens under Part IIII.

What should be the characteristics of an authority to be called a local authority within the meaning of Article 12, were laid down in Union of India v. R.C. Jain^[6] as follow:

A local authority is one which

• Has a separate legal existence.
• Functions in a particular area and its members are elected by the inhabitants of that area either directly or indirectly.
• Enjoys autonomy in deciding the policies of administration of that area.
• Has been entrusted with some duties under a Statute.
• Has the power to raise fund for itself and has full control over the fund so generated either by taxes, fees etc.

According to the Supreme Court held that the Delhi Development Authority which was set up under Delhi Development Authority Act, 1957 was a local Authority within the meaning of Article 12.

Other Authorities

The term other authorities is not defined anywhere either in the constitution or in any other Statute. Other authorities in the general sense means any authority having the power to make laws, rules, regulations, orders etc.

The meaning of the term has wholly developed by catena of judicial decisions.

In Sukdhev Singh v. Bhagatram^[7], SC held that if an authority is agency or instrumentality of the government, it may be called a local authority.

Now the question arises, which body is an agency or instrumentality of the government. The tests to check that whether a body is an agency or instrumentality of the government were given in R.D Shetty v. International Airport Authority^[8] These tests were reiterated in Ajay Hasia v. Khalid Mujib^[9] These tests are as follow:

• If the entire share capital of the corporation is held by the government, it can be inferred that it is an agency of the government. For Example- Government schools.
• If there exists a deep and persuasive control of the government on that body, it may give indication that such body is the agency or instrumentality of the government.
• If the monopoly status is conferred on that body by the government itself. For Example- State Electricity Board.
• If the authority perform the function of public importance. For Example- Health Services.
• If any department of the government is transferred to that corporation, it will give a strong proof that the body is an agency or instrumentality of the government.

However, the tests laid above are not rigid tests. Merely because an authority is agency or instrumentality of the government would not make it other authority for the purpose of Article 12.

In Pradeep Kumar Biswas v. I.I.C.B, Supreme Court held that to be an authority, “the entity should have been created by a Statute or under a Statute and functioning with liability and obligations to the public.”

For example: Food Corporation^[10], set up under Food Corporation Act, 1964.

Mysore Road Transport Corporation^[11] constituted under Road Transport Corporation Act, 1950.

Bareilly Development Authority^[12] constituted under U.P. Urban Planning and Development Act,1973.

Banking: Banking is an activity of public importance, but it doesn’t mean that any company carrying on the business of banking is covered under the term State.

By judicial decisions, it has been held that RBI is other authority^[13], State Bank and its subsidiaries^[14] are also included in the term State, any bank created by Parliament by an Act or nationalized under an Act, is a State since they perform public duty.

Which Authorities are not included in the term State?

There is again no hard and fast rule regarding this. It is by judicial decisions that courts declared various authorities to be outside the purview of term State.

For Example: Wakf Board, although it is a statutory body, is not a State.^[15]

Indian Medical Association is not a State as decided in Indian Medical Association v. Union of India^[16]

BCCI, though an autonomous body, but it is not a State.^[17]

When the State is a shareholder in a company, it will lose its character as a State within the meaning of Article 12.

Authorities Outside India

Any local or other authority which is situated outside India but which under the control of Government of India, is also included a State. It. the citizens of other nations where such authority is situated can also invoke fundamental rights given under Part III.

It extends the operation of fundamental rights in foreign nations as well. However, the relief is available against purely executive or administrative orders not against judicial orders.

Does ‘State’ Include Judiciary?

Judiciary in India is the guardian of rights of citizens. If fundamental Rights of citizens are violated, they can approach High Court or Supreme Court directly. The courts are the only institution which protects the fundamental rights. Can this happen that any judgement or order of the court infringes the fundamental right of anyone.

Under Article 12, judiciary is not mentioned specifically not comes under any of the heads given under Article 12.

In Rupa Ashok Hurra v. Ashok Hurra^[18], five judge bench held that no judicial proceedings can be questioned on the ground that it violated the fundamental rights, it is well settled that judiciary doesn’t fall under Article 12.

But Supreme Court also has rule making power under Article 145. Can the rules be questioned on the ground that it violated the fundamental rights? In Prem Chand Garg v. Excise Commissioner, H.P^[19]., rule 12 of Order 35 made by S.C. was challenged on the ground that it violated Article 32 of the constitution. The rules were subsequently declared invalid.

In Ramadeo v. Bani Kant^[20], it was observed that a judgment may violate the fundamental rights as happened in ADM Jabalpur case^[21] but such instances are very less.

So, it can be concluded that while in judicial capacity, judiciary is not covered under Article 12 but in rule making power, it is included under Article 12 thus it cannot make any rule which affects any of the fundamental right.

Conclusion

The definition of term ‘State’ is only applicable to the term State used in Part III of the Constitution. The purpose of the definition is to specify that against whom we can enforce fundamental rights. The fundamental rights are enforceable only against those entities covered under the definition of ‘State’.

The definition under Article 12 is only inclusive. It only defines what is covered in the term ‘State’. The concept has mainly developed by judicial decisions and some tests have been laid down, but these tests are not very rigid that they are applicable in all cases, it must be determined in each case that whether a body comes under the definition or not.

1. Purshottam Lal v. UOI AIR 1973 SC 1088 ↑
2. AIR 1967 SC 856 ↑
3. Rashid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163, Supreme Court struck down a bye law passed by the board which imposed unreasonable restrictions on the fundamental right contained in Article 19(1)(g). ↑
4. Dinesh Kumar v. Motilal Nehru Medical College, AIR 1985 SC 1415 ↑
5. J.H. Wadia v. Board of trustees, 2004 (1) SCALE 341 ↑
6. AIR 1981 SC 951 ↑
7. AIR 1975 SC 1331 ↑
8. AIR 1979 SC 1628 ↑
9. AIR 1981 SC 487 ↑
10. State of Punjab v. Raja Ram AIR 1981 SC 1694 ↑
11. Mysore S.R.T.C v. Devraj AIR 1976 SC 1027 ↑
12. Bareilly Development Authority v. Ajay Pal Singh AIR 1989 SC 1076 ↑
13. Reserve Bank Retired Officers Association v. UOI AIR 1992 SC 767. ↑
14. Bank of India v. O.P. Swarankar AIR 2003 SC 858 ↑
15. W.A. Wangoo v. State AIR 2008 NOC 1177 ↑
16. AIR 2011 SC 2365 ↑
17. Zee Telefims v. Union of India 2005 1 SCALE 666 ↑
18. AIR 2002 SC 1531 ↑
19. AIR 1963 SC 996 ↑
20. AIR 2011 SC 615 ↑
21. ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 ↑