It is the business of the State to maintain the conditions without which a free exercise of the human faculties is impossibleT.H Green
The framers of our Indian Constitution used the word “ state” in a wider sense than that we interpret or understand in the ordinary or narrow sense. The state does not merely mean Union or the states in the Union but the word “ includes” in the definition under Article 12 shows that it is not exhaustive and its scope has widened and still widening through the process of judicial interpretation beyond the mind of the constitution framers which they had while framing Article 12 of the constitution.
The Constitution India is considered as the Bhagavad Gita of the law and it is bestowed with the power to safeguard the rights of its citizens. Every citizen of India is protected under the umbrella of Fundamental Rights guaranteed under Part III of the Indian Constitution, irrespective of their race, place of birth, religion, caste, or gender. Fundamental rights cannot be enforced against individual and private entities rather an obligation to protect these rights is rendered on the government or state or authorities.
It is very important to understand and know what comes under the purview of the State to determine on whose shoulder lies the responsibility to protect these rights and made liable in the case of its infringement. Defining the term “State” was of utmost necessity as the Fundamental Rights are expressly guaranteed against the State.
Fundamental Rights provided under Part III of our Constitutions are the restrictions on the power of the legislature, executive and judiciary and no one is empowered to encroach on this part, so in order define the scope of these rights and scope of the remedy available under Article 32 of the Constitution, our constitution-makers have defined “ State”.
The very purpose of having the fundamental rights rests in the need to have a just society i.e a nation that is ruled by law and not by any tyrant and with the great power comes the greater risk of abuse and it arises the need of the constitutional protection from the acts of the state itself so to safeguard the rights ad freedom of every individual. Hence, it becomes imperative to explore the definition of the “state” under Article 12 so to delve deeper into the concept.
Originally Article 12 was introduced in the Draft Constitution as Article 7 but explaining its scope Dr B R Ambedkar debated in the Constituent Assembly stating the reasons why this article needs to be put under the purview of Fundamental Rights. He gave the following reasons:
“The object of fundamental rights are two-fold; firstly it should be placed such that every citizen must be in a position to claim those rights and protected under it and secondly they must be binding upon every authority who are vested with the responsibility and power to protect those rights.” Dr Ambedkar explained the meaning and scope of the word “ authority” as given in the definition of the State as the term authority means every authority which is either vested with the power to make laws or vested with the power to have discretion.
Therefore, if we care for fundamental rights then it must be binding not only upon the Central Government but also upon the Provincial government, it must not only be binding upon the Government established in Indian states but also upon the District Local Boards, Municipalities, even on village Panchayats and taluk boards; in a wider sense, it must be applied on every authority that has been created by law and which has got certain power to make laws, rules or bye-laws. Hence, fundamental rights have the universal obligation that is imposed on every authority created by law.
Dr Ambedkar further proposed that there two ways of doing it; either let the definition of State remain under Artice 7 as it is now and keep mentioning and repeating other authorities like Central Government, State Government, Municipality, etc individually every time or to have comprehensive phrase and economies in words. So an exhaustive definition of “ State” was given under Article 12 and this definition and understanding its scope has given birth to series of judgments and cases due to the inclusion of the word “ authority” in the last past of the definition.
Meaning of the State
According to Article 12 of the constitution of India, for Part III the term “ State” includes :
a) Government and Parliament of India i.e the Executive and Legislature of the Union
b) Government and Legislature of each State i.e executive and Legislature of the various State of Indian territory
c) All the local and other authorities :
- Within the territory of India
- Under the control of the GOI ( Government of India).
It is important to note that reading the article it is clear that the term state includes both executive and legislature of Union and State government along with Parliament and State Legislature.
The President of India and the Governors of various states also fall within the meaning of the state because they are part of the executive and the word “ government” also includes any department or institution which is under the check of the government. For instance, The Income Tax Department or International Institute for Population Science.
“Local authorities” include any authority in the ground that has facility and power to form/make laws and regulations and also the power to enforce them like Munciplaity or village Panchayats etc. , while the word “ other authorities” could refer to any entity or body that exercises any sort of governmental or sovereign functions.
Hence all the above body can be questioned and dragged inside the court in the case of infringement any of the fundamental rights of the citizens.
Explaination of the terms in Definition
1. Government, Parliament, and Legislature
Government: The term government includes :
- The law-making or legislative branch; and
- The administrative or executive branch; and
- The law enforcement or judicial branch.
Hence it includes all the 3 tiers of the democracy legislation, execution, and judiciary from both the house of the Parliament ( Lok Sabha and Rajya Sabha) to the apex court, high courts, etc.
Parliament: The Indian parliament consists of the President who is the head of the State and exercises his power through the subordinate officers, the lower house ( Lok Sabha), and the upper house ( Rajya Sabha) of the parliament.
Legislature: It is the first pillar of democracy; an organ of the government that enacts the laws of the government and vested with a responsibility to formulate the will of the state. In laymen term, it is the assembly of the elected representatives of the people and represents the national public opinion and the power of the people.
Executive: It is the second pillar of democracy; an organ that implements the law passed by the legislature and the policies drafted by the government. It includes the President, Governors, Cabinet Ministers, Police, Bureaucrats, etc.
State legislature: It is the legislative body at the state level and comprises of state legislative assembly and state legislative council.
Under the definition of Article 12, the term “ authority” includes both:
- Local authorities; and
- Other authorities
The Dictionary interpretation of the term “ authorities” states that authority means any person or body that exercise and has the power to command, however, in the context of Article 12 of the Constitution, the word ” authority” means any body or person that has the power to make laws, orders, regulations, bye-laws, notification, etc. and also the power to enforce those laws.
3. Local authorities
As per Section 3(31) of the General Clauses Act, 1897,
“Local Authority shall mean 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 government – includes a municipal corporation, mining settlement authorities, district boards, improvement trust, and other local authorities which are made for the village administration or self – government within a locality.
2. Village Panchayat
The wider meaning of the local authorities was interpreted by the court in the case Ajit Singh v. the State of Punjab, in which the court held that village panchayat also falls within the meaning of local authorities.
Test for Local Authorities
In the case Mohammed Yasin v. Town Area Committee, the Supreme Court held that Municipal Committed comes within the scope of the term local authorities and the bye-laws passed by them, charging a prescribed fee on the wholesaler dealer was an order by the State authority and it is contravening article 19 (1) (g)of the Constitution and laid down 7 tests to determine the local authorities as follows:
i. A local body must have separate legal existence as a corporate body.
ii. It should not be mere a government agency but must be a legal and independent entity.
iii. It must function in a defined area.
iv. It shall wholly or partly consist of the representatives, elected directly or indirectly by the inhabitants of that area.
v. It shall enjoy a certain degree of autonomy either wholly or partially.
vi. Entrusted with governmental functions and duties bt statue.
vii. It has the power to raise funds to carry its activities and fulfil its objectives by levying taxes or charging fees etc.
The interpretation of the term “other authorities” in the definition of Article 12 has caused a good amount of difficulty and it is subject to constant judicial interpretation and judicial opinions.
The term “ other authorities” is not defined anywhere neither in the Constitution of India nor in the General Clause Act, 1897 nor in any other statue of India. The philosophy of social welfare and evolved and developed from time to time as a result today government can perform its major functions; sometimes it acts as a natural person and some time as a judicial person. This led to the wider interpretation of the term and reason for the conflict of judicial opinions.
The governmental functions can be performed either in governmental departments and officials or they can be carried by autonomous bodies that exist outside the purview of departmental structure and it may include companies, corporations, NGOs, etc.
So to determine what “ other authorities” fall under the scope of the definition of the State, the judiciary has given several judgments as per the circumstances and the facts of each case and whether that authority can be covered under such definition is judged independently.
In the case Electricity Board v. Mohan Lal, the apex court held that the expression “ other authorities” has a wider scope than it is defined in the Article 12 and it includes all the authorities that are created by the Constitution or Statue on whom the power is conferred by law i.e they are law creation. It is no judge rule that statutory authority should be performing any sovereign or governmental functions.
In the case, the University of Madras v. Shanta Bai, the question before the court was whether the direction issued by the University Madras to its affiliated college to prevent from giving admission to the girl students is valid or not. The direction was given because of the lack of accommodation facilities for the girls.
The Madras High court evolved the principle of “ ejusdem generis” (of the like nature) which means that only those authorities will be covered under the umbrella of the other authorities which perform the functions of the like nature of government or sovereign and it does not include persons, jurists or naturals like Unaided Universities. Hence court held that University has violated Article 15(1) and Article 29(2)of the Constitution because it is State-aided University.
Further in the case, Ujjamabai v. the State of U.P, the court rejected the restrictive scope of the term “other authorities” and overruled the judgment given in the Shanta Bai Case and held that the rule of “ ejusdem generis” cannot be use to determine or interpret what exactly includes the “other authorities” under Article 12 as the bodies which are mentioned under this article does not have any common genus running through them; hence they cannot be placed in one single category on any rational basis and the court has to look on each case independently based on its facts and circumstances.
One of the most important judgments of the court regarding this aspect was in the case Rajasthan Electricity Board v. Mohan Lal, where the Supreme Court held that the “ other authorities” in the definition of the State under Article 12 would include all the authorities created by the constitution or statue on whom the power is conferred by the law and such authority need not be engaged in performing any sort of sovereign or governmental functions. In this case, the court emphasized the fact that it is immaterial whether the power conferred on the body if of commercial nature or not, and in this case, the Electricity was discharging the sovereign function.
Hence, earlier there was a restrictive interpretation of the term “other authorities” which stated that the authorities which exercise any governmental or sovereign functions will only be covered under other authorities but the evolution of the law and judicial system led to the liberal interpretation which concluded that for an authority to be other authority it doesn’t need to be engaged in any kind of governmental or sovereign functions. So the bodies like State Electricity Board, LIC, ONGC, etc. are covered under the definition of the State and can be held liable as State in the case of infringement of any Fundamental Right of the citizen.
Territory of India
- The territories of the States;
- The Union Territories in the First Schedule;
- It may acquire any other territories as.
Control of GOI
For this, the control does not necessarily mean that the body must be under the absolute control of the government rather, it means that the government must have some form of control over the functioning of that body/organization.
The mere Statutory status of the body will not render it State rather both statutory as well as non-statutory bodies will be considered as a “State” if they get financial resources from the government and if the government has deep and persuasive control over it.
Judiciary as a State
Under the definition of State in Article 12, the term “judiciary” has not been defined specifically or expressly, in this scenario the question lies whether the judiciary can be considered as the State or not.
It is pertinent to note that bringing judiciary entirely under the purview of Article 12 will cause a great deal of confusion because the judiciary is the guardian of fundamental rights and if the judicial decisions are subject to sovereign functions and brought under the Article 12 then it will create the doubt and confusion as it comes with an attached interference that the guardian of fundamental rights is himself capable of infringing them.
However, with Rupa Ashok Hurra v. Ashok Hurra, the Supreme Court held that to answer whether the judiciary is the state of not the answer lies in the distinction on whether the judiciary is undergoing judicial or non-judicial functions. The court ruled that if the judiciary is performing the judicial functions, then it would not fall within the state but if is performing non-judicial functions then it will fall within the definition of the state.
The judicial proceedings and judicial decisions of a court cannot be challenged as being violative of fundamental rights but administrative decisions by the judiciary can be challenged.
Hence, it is a settled position of law that the superior courts of justice do not fall within the ambit of “state” or “other authorities” under Article 12.
The courts have been playing the role of the guardian of the fundamental rights from years and have widened the scope of the term “State” through various judicial interpretations from time to time because our Constitution not only gives fundamental rights to it citizens but imposes a duty on the state to safeguard those fundamental rights.
The scope of the word “ State” and “Authority” has travelled a long journey from initially being treated as exhaustive and confined to authorities and ejusdem generis, then reaching its next stage where the scope was widened by the inclusion of the authorities in the definition of the State on whom the power was conferred by the law. Further, in the case of Ajay Haisa and R.D Shetty, the scope was taken into another level bt laying out the tests to determine whether the authority is the state or not under Article 12. However, these tests were crystallized into a single test in the case of Pradeep Kumar Biswas in which the court laid down that an authority will be termed as State if it is financially, functionally, and administratively controlled by the government. Hence, through all these interpretations the State in Article 12 includes a variety of statutory and non-statutory bodies under its umbrella.
Q & A
- Whether United Nation Organization (UNO) is a State?
In the recent judgment of the Delhi High Court in the case of Sanjaya Bahel v. Union of India, the court held that United Nation Organizations is not a State within the meaning of Article 12 of the Indian Constitution.
The court held that UNO is an international body and it cannot be treated as “ instrumentality” or “ agency” of the Government and it is not amenable to the jurisdiction of the court under Article 226 of the Indian Constitution.
2. Whether University is a State?
In the landmark judgment of the Supreme Court in the case Ajay Hasia v. Khalid Mujib, the court laid down the guidelines on what should be covered under the definition of the “State” for the very first time and laid down the following test to adjudge whether a body is in an instrumentality of the State or not:
- Share capital: If the entire share capital of any organization is owned by the Government or it receives any government assistance or aid so to meet its expenditure entirely then such an organization is the government’s instrument or agency.
- Status: Whether an organization is autonomous or enjoys the monopoly status which is State conferred or State protected.
- Control: the existence of deep and persuasive control of the government over the organisation would make it a government instrument.
- Functions: If the organisation carries out the functions of the public importance and closely related to the governmental functions then it will be considered as a government instrument.
- Members: if the board members or other important members of an organisation comprise the members transferred from the government department then in such case an organisation will be held as a government instrument/ agency.
3. Whether BCCI is a State?
With Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, the Supreme Court held that the tests given in the Ajay Hasia case are not rigid and they would judge each case independently based on the facts and circumstances.
With Zee Telefilms Ltd. v. Union of India, the court held that when a private body discharges such function that amounts to state functions or public duties in absence of any such delegation or authorisation which have no legal prohibition per se then in such case such body may be considered falling under the instrumentality of the State.
The Supreme Court held that Board of Control for Cricket in India (BCCI) is not a “State” under Article 12 because of the following reason:
- The BCCI is not created by statute.
- No financial help is given by the government to BCCI so to meet the whole or entire expenditure of the Board.
- The BCCI’s monopoly in cricket is neither state-conferred nor state protected.
- No deep or persuasive control of the government.
- The BCCI is an autonomous body, and it is not created by transferring government-owned corporations.
4. Whether the International Airport Authority (IAA)is a State?
In the case, R.D Shetty v. Airport Authority of India, the question before the court was whether the Airport Authority is the State. The court observed that the International Airport Authority is formulated under Airport Authority Act, 1971 which was a Parliamentary Act and Central Government were exercising any of it power over IAA like the government was empowered to appoint the Chairman and other members of IAA and the court observed that entire capital that was required for the establishment of IAA was invested by the Central Government. It also empowered the Central government to transfer the management of various airports.
Hence, the court said that the test laid in Ajay Hasia are only illustrative and not conclusive and every case to be a with great care and caution and they didn’t give any weightage on the functional aspect of the Airport Authority whether or not it is performing a sovereign function but held that International Airport Authority is a State under Article 12.
The court ruled that when any private body has control or extra-ordinary financial help by the government, then such a private body will be called the instrument/agency of the government.
5. Whether NCERT is a State?
NCERT is not a state because neither it is financed by the government nor the government has persuasive control over it which the two most essential elements to make any non-statutory body as instrument/agency of government.
 THE CONSTITUTION (SEVENTY-THIRD AMENDMENT) ACT, 1992
 1967 SCR (3) 377
 It states that no citizen shall be denied admission into any educational institution which is maintained by the State nor he shall be denied to receive any aid from the State funds based on its religion, race, caste, gender, sex or place of birth.
 2002 4 SC 388
 M.P Jain, Book on Constitutional Rights and Law