State under Article 12 of the Constitution
Our Constitution holds a great definition of "state," a crucial term that demands a detailed and comprehensive explanation. The constitution puts the definition under art.12, a more inclusive one, rather than being exclusive. The prime purpose of defining state under art. 12 of the constitution is for the smooth enforcement of fundamental rights. As we know, unlike other legal rights which are creation of state and given to individuals against one another , fundamental rights on the other hand can only be enforced against the state. Thus it is very important to comprehensively define what includes ‘state’.
Fundamental rights can be violated by the state, either directly or indirectly. In the former the officers of the state itself encroach upon the rights of individuals and the latter it may be due to the non responsiveness of state in respect of any action which is potentially an encroachment upon the fundamental rights of individuals. Thus It is prime duty of state to safeguard the fundamental rights of its subjects and citizens, and in no way it can escape out of its responsibility or liability for the same on the plea that action of any such violation is by a non state private entity and not state. In several such cases, what the court did is granting compensation or relief to the petitioners, without going detail into the question of whether it was a state action or not, (M C Mehta vs. Union of India also, shriram-oleum gas leakage case) thereby explicitly recognizing the threshold of duty to protect of fundamental rights by the state.
2. DEFINITION OF STATE
Art. 12 of the constitution of India clearly defines the authorities and instrumentalities which come under purview of the term “state”. The article is read as follows:
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.
- According to Art. 12, the term ‘state’ include;
- the Government and Parliament of India:
- the Government and the Legislature of a State;
- all local authorities; and
- other authorities, within the territory of India, or under the control of the Central Government.
The first two categories, includes, the legislative and executive wings of the Union and State Government and also all possible varieties of the Government. They are quite specific, and self explanatory. The third one is the ‘local authorities’ which can be analysed as follows.
2.1. LOCAL AUTHORITIES
By the term local authorities it is taken to mean authorities like Municipality, panchayat, District Boards, port trust, improvement trust, Mining settlement boards etc. Thus, the panchayt, Municipality and cooperative society under part IX, IXA and IXB are a ‘state’ under article 12. It was in the case Rashid Ahammed vs. Municipal Board, Kairana that the Municipal Board was held to be state under art.12.
In order to determine whether an authority fall within the ambit of art.12, the court laid down the following criteria in the case of Union of India vs. R C Jain.
- i) Separate legal existence.
- ii) Function in a defined area.
- iii) Has the power to raise funds.
- iv) Enjoys autonomy.
- v) Entrusted by a statute with functions which are usually entrusted to municipalities
Any authorities which satisfy these criteria can be referred to as a ‘state’ for the purpose of article 12. It must be noted here that, it is not necessary that such authorities are merely Government of state or central government.
2.2. OTHER AUTHORITIES
The most significant expression used in Art. 12 is “other authorities”. This expression is not defined in the Constitution. It is, therefore, for the Supreme Court, as the Apex Court, to define this term. It is obvious that wider the meaning attributed to the term “other authorities” in Art. 12, wider will be the coverage of the Fundamental Rights, i.e., more and more bodies can be brought within the discipline of the Fundamental Rights.
The meaning of the term 'other authorities' in Art. 12 has been a source of debate, and judicial opinion has evolved over time. Because of the prevailing ideology of a social welfare state, today's government undertakes a broad spectrum of functions. The government may act through both natural as well as judicial persons. Some functions are discharged through the traditional governmental departments and officials while some are discharged, through autonomous bodies existing outside the departmental structure, such as, companies, corporations etc. While the government acting departmentally, or through officials, undoubtedly, it falls within the definition of ‘state’ under Art. 12. But doubt have been cast regards to the functions carried out through autonomous bodies. Thus term ‘other authorities’ was subjected to judicial interpretation. With regard to this there are some High Court judgements to begin with. In University of Madras vs. Shanta Bai, the High court exercised the principle of ejusdem generis (meaning things of like nature) and held that since the expression ‘other authorities’ comes after mentioning few of them, it would be reasonable to construe that the expression is ejusdem generis with government or legislature. Thus other authorities would only mean those authorities who exercise governmental or sovereign powers and functions. But this view critically restricted the application of art. 12.
Later on the application of the ejusdem generis rule with respect to the interpretation of article 12 was vehemently rejected by the Supreme Court (see Ujjambai vs. State of UP) and in the case of Rajasthan SEB vs. Mohanlal, ruled that a State electricity board, set up by a statute, having some commercial functions to discharge, would be an ‘authority’ under Art.12.
In Sukhdev v. Bhagatram, three statutory bodies, viz., Life Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation, were held to be “authorities” and, thus, fall within the term ‘state’ in Art. 12. These corporations do have independent personalities in the eyes of the law, but that does not mean that “they are not subject to the control of the government or that they are not instrumentalities of the government”.
Over time, in order to expand the interpretation of the term and there by the application of art.12, the apex court of the land shaped the doctrine of ‘instrumentality’. In Ramanna D. Shetty v. International Airport Authority, The International Airport Authority, a statutory body, was held to be an ‘authority’ within the meaning of state under art.12 by applying principles of instrumentality or agency of government. Subsequently the court summarized factors of instrumentality. They are :
- If the entire share capital of the corporation is held by the Government.
- Financial assistance of the Government is so much as to meet the entire expenditure of the corporation
- Whether the corporation enjoys a monopoly status which is state conferred or state protected.
- Existence of deep and pervasive state control
- If the functions of the corporation are of public importance and which are closer to governmental functions.
- If a department of a government is transferred to a.corporation.
If on consideration of these factors the body is found to be an instrumentality or agency of government it may be treated as an ‘authority’ under art.12.
However, the law appears to be now settled in view of the judgment of a seven Constitution Bench of the Supreme Court in Pradeep Kumar Biswas vs. Indian institute of Chemical Biology, where, after considering the authorities it was concluded that the tests formulated in Ajay Hasia (supra) were not a rigid set of principles so that if a body falls within any of those tests, it must be considered according to the assumptions made to be a State within the meaning of Article 12. The Court suggested a general guideline observing:
“The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State”
Thus in Zee Telefilms v. Union of India held as the Board of Control for Cricket in India (BCCI) is not created by a statute, not dominated by government either financially, functionally or administratively. Hence, it cannot be called a ‘state’ as under article 12 of The Constitution.
2.2.1. Political Parties.
Political parties could not be regarded as a state under article 12 and there for no writ can be issued to them by either Supreme Court or High Courts.
2.2.2. Authorities Under Government Control
The words ‘Under control of Government of India’ within the article 12 are meant to bring into definition, not only those authorities within the territory of India, but also those abroad, provided that such authorities must be under control of the Government of India. Thus every authorities under control of government of India or state legislature fall within the meaning of article 12, but the converse is not true.
2.2.3. Judiciary
Judiciary, although an organ of government like that of legislature and executive is not mentioned in article 12 in particular. Thus it is very important to examine whether judiciary is a state within the ambit of article 12. For the purpose of this we have to distinguish between the judicial and non judicial functions of the court. With respect to the exercise of non judicial functions including appointment of judges to Supreme Court, High court as well as subordinate judiciary, the court could be defined as a “state” and consequently would fall under article 12. But when the court exercises its judicial powers, it is expected that, there can be no occasion of infringement of fundamental rights, and hence the question of judiciary being “state” under art.12 would not arise. Explicitly, in the exercise of judicial functions, courts are required to determine the scope of fundamental rights in respect of a legislative or administrative action. Here the courts are competent to make right or wrong decisions in respect of such functions, and a wrong determination would not constitute a breach of fundamental rights. Thus judiciary could not explicitly be included as such within the meaning of “state” under article 12 of the Constitution of India.