Article 12 – Definition Of State: 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 definition of the term “State” specifies the authorities and the instrumentalities functioning within or without the territory of India which shall be deemed to be ‘the State’ for the purpose of Part III of the Constitution.
By the express terms of Article 12, the expression “the State” includes :
- the Government of India;
- Parliament of India;
- the Government of each of the States
- the Legislature of each of the States
- all local authorities within the territory of India;
- all local authorities under the control of the Government of India;
- all other authorities within the territory of India; and
- all other authorities under the control of the Government of India.
The State is an abstract entity and it can, therefore only act through its agencies or instrumentalities, whether such agency or instrumentality be human or juristic. STATE INSTRUMENTALITIES – Authorities constituted under and corporations established by statutes have been held to be instrumentalities and agencies of the Government in several decisions of the Supreme Court. The observations in several of these decisions are general in nature and take into their count all instrumentalities and agencies of the State, whatever be the form which such instrumentality or agency may have assumed.
University of Madras v. Santa Bai [AIR 1954 Madras 67]
Madras High Court held that “other authorities” referred under Art.12 could only indicate authorities of a like nature i.e. ejusdem generis. If so construed or interpreted, it could only mean authorities exercising governmental or sovereign functions. It cannot include persons, natural or juristic, such as a University unless it is ‘maintained by the State’
Ujjambai v. State of U.P. [AIR 1962 SC 1621]
Court rejected the above restrictive interpretation of the words “other authorities” given by the Madras High Court and held that ejusdem generis rule could not be resorted to in interpreting this expression.
Rajasthan Electricity Board v. Mohan Lal [AIR 1967 SC 1857]
Definition of State is not narrow. The expression ‘other authorities’ is wide enough to include all such authorities and entities that are constituted by the State under the Constitution or a statute on whom powers are conferred by law. It is not a mandate that such a statutory authority should be engaged in performing governmental or sovereign function. On this interpretation, Electricity Board, Co-operative Societies etc which have power to make bye-laws under Co-operative Societies Act, 1911 will be included in the definition of State under Article 12.
Sukhdev v. Bhagatram [AIR 1975 SC 1331]
Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporations are all ‘States’ under Article 12, because all these three statutory Corporations have power to make rules and regulations for regulating conditions of service of their employees and such rules and regulations have the force of law.
Justice Mathew in a separate but a concurring judgment preferred a broader test that if the functions of the Corporation are of public importance and closely related to Governmental functions it should be treated an agency or instrument of government and hence a “State” within the ambit of Article 12 of the Constitution.
In subsequent decisions, the Supreme Court has given a broad and liberal interpretation to the expression ‘other authorities’ under Article 12. With the changing role of the State from merely being a police State to a welfare State it was necessary to widen to scope of the expression “authorities” in Article 12 so as to include all those bodies which are, though not created by the Constitution or by a statute, are acting as agencies or instrumentalities of the Government.
Ramana Dayaram Shetty v. The International Airport Authority of India [AIR 1979 SC 1628]
The Supreme Court laid down five tests to be an “other authority”-
- Entire share capital is owned or managed by State i.e. financial resources
of the State is the chief funding source.
- Enjoys monopoly status, whether it is State conferred or State protected.
- If a department of Government is transferred to a corporation.
- Functional character being governmental in essence i.e. if the functions of
the corporation are of public importance and closely related to
- Existence of deep and pervasive State control.
Ajay Hasia v. Khalid Mujib & Others [AIR 1981 SC 487]
It has been held that the societies registered under the Societies Registration Act, 1898 is an agency or instrumentality of the State and therefore it is covered under the definition of State under Article 12. The Court also observed that the test to know whether a juristic person such as registered societies is State is not how it has been brought but why it has been brought. (i.e. the purpose behind creation of such society or trust)
In Central Inland Water Transport Corporation v. Brojo Nath Ganguly [(1986) 3 SCC 156], applying the above test, Central Inland Water Transport Corporation was held to be ‘State’ under Article 12.
In Union of India v. R.C. Jain[1981 SCR (2) 854], it was held that to be a “local authority” within the definition of “State” under Article 12, an authority must fulfil the following tests-
- Separate legal existence.
- Function in a defined area (territory).
- Has power to raise funds.
- Enjoys autonomy.
- Entrusted by a statute with functions which are usually entrusted to
WHETHER JUDICIARY IS INCLUDED IN THE DEFINITION OF STATE???
The definition of State under Article 12 of the Constitution does not explicitly mention the Judiciary. Hence, a significant amount of controversy surrounds its status with respect to Part III of the Constitution.
Bringing the Judiciary within the scope of Article 12 would mean that it is deemed capable of acting in contravention of Fundamental Rights. It is well established that in its non-judicial functions, the Judiciary does come within the meaning of State. However, challenging a judicial decision which has achieved finality, under the writ jurisdiction of superior courts on the basis of violation of fundamental rights, remains open to debate.
Naresh v. State of Maharashtra [AIR 1967 SC 1]
The issue posed before the Supreme Court for consideration whether judiciary is covered by the expression ‘State’ in Article 12 of the Constitution. The Court held that the fundamental right is not infringed by the order of the Court and no writ can be issued to High Court.
This question has raised a controversy, because of non-mentioning of judiciary under Art, 12. Judiciary is the prominent organ of the State. Legislature frames the law and executor organ implements them and enjoys vast power of delegated legislation as well. One of the most important functions of Judiciary is to check invasion of fundamental rights by these two organs and their instrumentality.
Judiciary is to turn down the rules, regulation etc. which are in clear violation of fundamental
rights. Inclusion of judiciary under Article 12 sets judiciary as the possible violator of fundamental
rights as well. Judiciary being the guardian of the Constitution is not supposed to violate the
Jurists like H.M.Seervai, V.N.Shukla consider judiciary to be State. Their view is supported by Articles 145 and 146 of the Constitution of India.
- (a) The Supreme Court is empowered to make rules for regulating the practice and procedure of Courts.
- (b) The Supreme Court is empowered to make appointments of its staff and servants; decide its service conditions. Such kind of administrative duties of the judiciary bring it within the purview of the definition of State
Also, in A.R. Antulay v. R.S. Nayak [AIR 1988 SC 1531] and N.S.Mirajkar v. State of Maharashtra [AIR1967 SC 1], it has been observed that while exercising the rule making powers, the judiciary is covered by the expression state within Art.12 but while performing its judicial functions it is not so included.
The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times. It has gained wider meaning which ensures that Part-III can be applied to a larger extent. The ultimate aim is to attain a welfare State.