Article 12: Definition of the State

• The concept of the "State" is defined under Article 12 of the Indian Constitution, which is essential for enforcing Fundamental Rights and holding entities accountable.
• Article 12 defines the "State" which enables the implementation of constitutional protections and prevents misuse of power by governmental or quasi-governmental bodies.

Definition of "State"

• According to Article 12, "the State" includes the Government and Parliament of India, which is the Executive and Legislature of the Union.
• The "State" also encompasses the Government and Legislature of each State, referring to the Executive and Legislature of the various States of India.
• "State" includes all local or other authorities within the territory of India, or under the control of the Government of India.
• The inclusive definition of the "State" allows for a wide interpretation, meaning that various bodies and authorities can be held accountable under the Fundamental Rights provisions.
• The term "State" includes the Government of India (Union executive) and the Parliament of India.
• The term also includes a Department of Government or any institution under the control of a Department of Government, such as the Income Tax Department.
• The President is included in the term and isregarded as "State" when acting in their official capacity.
• The term "State" includes the Government of each State, which is the State Executive and legislature.
• Union Territories are included in the term "State" as well.
• Local authorities are defined in Section 3(31) of the General Clauses Act, 1897, as a municipal committee, district board, body of commissioner, or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund.
• Local authorities include Municipalities, District Boards, Panchayats, Improvement Trusts, and Mining Settlement Boards as defined in Section 3 (31) of the General Clauses Act.
• Local Authority includes local government (municipal corporations, improvement trusts, district boards, mining settlement authorities, etc.) for local self-government or village administration.

Village Panchayats

• The case of Ajit Singh v. State of Punjab, established that village panchayats are local authorities.
• The Supreme Court in the case of Union of India v. R.C. Jain (1981) provided test for determining which bodies would be considered local authority under the definition of State in Article 12 of the COI.
• The Supreme Court held that an authority should have the following in order to be considered a local authority:
  • separate legal existence
  • functions in a defined area
  • power to raise funds on its own
  • autonomy, i.e., self-rule -If an authority is entrusted by statute with functions usually entrusted to municipalities, it falls under ‘local authorities’ category and is considered "State” under Article 12 of the COI.
• "Other authorities" are not defined, and their interpretation has been historically difficult and subject to changing judicial opinions.

Judicial Interpretation and Relevant Case Laws

• University of Madras v. Santa Bai (1954): The Madras High Court ruled that "other authorities" could only indicate authorities of a like nature (ejusdem generis) and exercising governmental or sovereign functions, therefore a University cannot be included.
• Ujjammbai v. State of U.P. (1962): The Court rejected the restrictive interpretation of "other authorities" given by the Madras High Court (in Santa Bai case) and held that the ejusdem generis rule could not be used to interpret the term.
• There is no common genus among the bodies specifically named in Article 12.
• Electricity Board, Rajasthan v. Mohan Lal (1967): The Supreme Court determined that "other authorities" encompasses entities created by the Constitution or statute with powers conferred by law; these authorities do not have to perform governmental or sovereign functions.
• The Rajasthan Electricity Board was included in “other authorities”.
• The Rajasthan Electricity Board decision overruled the Madras High Court in Santa Bai's case, which held that a University is not "the State”.
• Sukhdev Singh v. Bhagatram (1975): The Supreme Court followed the precedent set in the Electricity Board of Rajasthan case, by a 4:1 majority, and held that the Oil and Natural Gas Commission, Life Insurance Corporation, and Industrial Finance Corporation are authorities within the meaning of Article 12 and are therefore 'State’.
• Authorities not created by the Constitution or a statute were determined to not qualify as a ‘State’ under Article 12.
• In R.D Shetty v. Airport Authority of India (1979), the Court held that if a body functions as an agency or instrumentality of government, it is an authority under Article 12, irrespective of its structure (statutory corporation, government company, or registered society).
• If a body is an agency or instrumentality of Government it may be an ‘authority’ whether it is a statutory corporation, a government company or even a registered society.
• It was concluded that the International Airport Authority, created by an Act of Parliament, is the "State" under Article 12 because the Central Government appoints its members, can terminate appointments, and provides its capital.

The agency or instrumentality test

• A body is determined to be an agency or instrumentality of the Government if:
• financial resources of the State are the primary funding source, with the government holding the corporation's share capital
• deep and pervasive State control exists
• the functions are governmental in essence and closely related to governmental functions
• a department of Government is transferred to a corporation
• the corporation enjoys a state-conferred or state-protected monopoly status.
• Ajay Hasia v. Khalid Mujib (1981): A Society registered under the J&K Societies Registration Act, 1898, was held to be an agency or "instrumentality of the State", thus considered a ‘State’ within the scope of Article 12.
• Society's composition determined by Government representatives, expenses primarily covered by the Central Government, rules subject to State and Central Governments' approval, compliance with Government's directions, complete Government control, power to appoint/remove members show it is an instrumentality of State government.
• Society is an instrumentality of the State/Central Government as an "authority" under Article 12, by how it was brought into existence.
• Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002): The Ajay Hasia test was refined, where an organization is considered a ‘State", when the government significantly controls the organization and it performs public functions.
• The Council of Scientific and Industrial Research (CSIR) was declared ‘State.', as a result.
• Chandra Mohan Khanna v. NCERT (1992): Decided that the National Council of Educational Research and Training is not a 'State' under Article 12 of the Constitution.
• NCERT, a society registered under the Societies Registration Act whose objective is to assist and advise the Ministry of Education and Social Welfare, is not wholly related to governmental functions. Government control is confined only to proper utilization of the grant, making it an autonomous body. 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 ‘State'.

International Crops Research Institute

• G. Bassi Reddy v. International Crops Research Institute (2003): Determined the International Crop Research Institute, a non-profit research and training center, is not a 'State' under Article 12 of the Constitution.
• Consequently, employees cannot challenge their removal from the organization under Articles 14 and 16 of the Constitution as it is not set up by the Government.
• Zee Telefilms v. Union of India ors. (2005): BCCI is not State under Article 12
• BCCI is not created by a statute.
• No part of the share capital of the BCCI is held by the government.
• There is practically no financial assistance from the government to meet the expenditure of the Board.
• The BCCI is not state-conferred or state-protected.
• There is no deep and pervasive state control, and any control is only regulatory in nature.
• BCCI is the world's richest cricket body and operates as a private entity under the TN Societies registration Act.
• Satimbla Sharma V. St. Paul Senior Secondary school (2011): Unaided minority schools over which the Government has no administrative control due to their authority under Article 30 (1) of the Constitution, are not considered ‘State' for Article 12 purposes.

Whether Judiciary is a “State” Under Article 12

• The judiciary (Supreme Court, High Courts, and lower courts) is not explicitly mentioned as a "State" under Article 12, prompting discussions about its status.
• The judiciary's role interpreting its own status under Article 12 has produced varied outcomes.
• Courts are generally not considered part of the State when performing judicial functions (deciding cases) versus non-judicial functions (administrative roles).

Case Laws Relevant to the Judiciary

• Rati Lal v. State of Bombay (1960): The Supreme Court ruled that the judiciary is not defined as "State" for its judicial functions and that judicial orders do not violate fundamental rights directly.
• A.R. Antulay v. R.S. Naik (1984): The Court held that if a judicial order indirectly affects fundamental rights, it should be challenged through legal channels rather than claiming a violation under Article 32.
• Prem Garg v. Excise Commissioner H.P (1996): The judiciary can be considered part of the “State" when exercising rule-making powers, suggesting accountability under Article 12 in its administrative capacity.
• Rupa Ashok Hurra v. Ashok Hurra (2002): The Supreme Court reaffirmed that no judicial proceeding violates fundamental rights and superior courts of justice do not fall within the ambit of State or other authorities under Article 12.
• It is settled in America that the judiciary is within the prohibition of the 14th Amendment.
• While not explicitly mentioned, the judiciary should be included in the expression 'other authorities' as courts are set up by statute and exercise power conferred by law.
• Judiciary cannot be a State under Article 12, except when they deal with employees or act purely in an administrative capacity, the courts may fall within the definition of the State for attracting writ jurisdiction against their administrative actions.