What Is “State” under Article 12 of the Constitution — and Is the Judiciary Included?

The Fundamental Rights contained in Part III (Article 12 to Article 35) of the Constitution are guaranteed against the State, except few Fundamental Rights which exist even against private individuals, for instance, the Prohibition of Untouchability (Article 17) and the Right against Exploitation (Article 23 and Article 24).

As most of the Fundamental Rights are available against the State, it is very essential to understand the definition of the term “State”.

Article 12 of the Constitution defines the term “State” for the purpose of Part III of the Constitution, but Article 36 provides that the definition of State as provided by Article 12 shall also be applicable to Part IV of the Constitution (Directive Principles of State Policy), unless the context otherwise requires.

Article 12 provides that the term “State” shall include the following:

1. Government and the Parliament of India

   This implies the Executive and the Legislature of the Union.

2. Government and the Legislature of each of the States

    This implies the Executive and the Legislature of each of the States

3. All Local or other authorities within the territory of India

4. All Local or other authorities under the control of the Government of India

From the perusal of the definition, it is clear that the definition of the ‘State’ as provided by Article 12 is not exhaustive  in nature and rather, inclusive .

Local Authorities:

The term ‘Local Authorities’ has been defined under Section 3(31) of the General Clauses Act, 1897. It defines Local Authorities 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”

In Union of India and Others v. R.C. Jain and Others ^[1] , Hon’ble the Apex Court laid down the following conditions for an “Authority” to fall under Local Authorities:

(i) The authority must have a separate legal existence

(ii) The authority must be functioning in a definitive defined area

(iii) The authority must be wholly or partly elected

(iv) The authority must be autonomous to an appreciable extent

(v) The authority must be entrusted by Statute to perform governmental functions or duties

(vi) The authority must have power to raise funds by levying taxes, rates, charges, or fees.

In view of the above parameters, Delhi Development Authority (DDA) has been held to be a ‘local authority’ because it is constituted for the specific purpose of development of Delhi according to plan which is ordinarily a Municipal function.

Other Authorities:

The expression “Other Authorities” has not been defined in the Constitution. The term ‘authority’ literally means a person or a body exercising power or command . Hon’ble Courts have interpreted the expression differently over a period of time which has been delineated below:

In University of Madras v. Shanta Bai ^[2] , Hon’ble the Madras High Court held that expression ‘other authorities’ could only be interpreted by using the principle of ejusdem generis  which means ‘authorities of like nature’. Therefore, it encompasses only authorities exercising governmental and sovereign functions.

However, in Ujjam Bai vs. State of U.P ^[3] , Hon’ble the Apex Court rejected the restrictive interpretation  of the expression ‘other authorities’ given by the Madras High Court and held that the rule of ejusdem generis  is not applicable to Article 12 of the Constitution because there is no common genus  running through the specific named bodies in the Article nor can they be placed in one single category on any rational basis.

In Electricity Board, Rajasthan v. Mohan Lal ^[4] , Hon’ble the Apex Court held that the expression ‘other authorities’ is wide enough to include all authorities created by the Constitution or statute  on whom the power is conferred by law and it is not essential that the authority must be engaged in performing governmental or sovereign functions.

In Sukhdev Singh v. Bhagatram ^[5] , it was held that if the functions of the Corporations are of public importance and closely related to governmental functions, then they should be treated as an instrumentality of the ‘State’ for the purposes of Article 12 of the Constitution.

In Ramana Dayaram Shetty v. The International Airport Authority of India ^[6] , Justice P.N Bhagwati laid down the following test to determine whether a body is an agency  or instrumentality of the State:

(i) Financial resources of the State is the chief funding source of the body.

(ii) Existence of deep and pervasive State control.

(iii) Functional character of the body is governmental in essence.

(iv) The Department of government is transferred to the Corporation.

(v) Whether the Corporation enjoys monopoly status which is State conferred or State protected.

However, the Court held that these tests are not conclusive  and exhaustive , and are merely inclusive  in nature.

In Ajay Hasia v. Khalid Mujib ^[7]   and Pradeep Kumar Biswas v. IICB ^[8]  Hon’ble the Apex Court observed that the test laid down in R.D Shetty’s case (supra)   is not rigid and to determine whether a body is an instrumentality of State, cumulative effect needs to be seen that whether the body is financially, administratively and functionally  dominated or controlled by the government.

Thus, with a shift to the welfare State approach , Hon’ble Courts have widened the definition of the term to include within its ambit even the private bodies who are performing or exercising public functions. The test is not how a juristic person is created, but why it has been brought into existence.

Recent Case Laws:

Hon’ble the Delhi High Court in Sanjaya Bahel v. The Union of India and others held that the United Nations (UN) is not a “State” for the purpose of Article 12 of the Constitution. By no stretch of imagination, an International Organisation like the United Nations (UN) can be treated as an instrumentality  or an agency  of the State.

In M/s Pearson Drums & Barrels Pvt. Ltd. v. The General Manager, RBI   & other , Hon’ble the Calcutta High Court observed that the Reserve Bank of India (RBI) falls under the definition of State under Article 12 of the Constitution.

            –Authored by Akinchan Aggarwal, founder of Lawizard and an Advocate at the Punjab & Haryana High Court, this article reflects his extensive legal expertise. Holding a Masters degree in Law, he has served as a Legal Researcher in the Punjab and Haryana High Court, Chandigarh, and his contribution is accredited in various reported judgments of the High Court.

         

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Is the judiciary “State” under Article 12?

On the perusal of the definition of State as provided in the Article 12 of the Constitution, it is clear that Judiciary has not been specifically mentioned. Thus, to determine whether Judiciary falls under the definition of State, it is important first to determine whether Judiciary is performing judicial or non judicial functions.

In Naresh Shridhar Mirajkar v. State of Maharashtra 1967 AIR (Supreme Court) 1, Hon’ble the Supreme Court without expressing any definitive opinion observed that even if the Court is considered within the meaning of term ‘State’ under Article 12, a writ under Article 32 cannot be issued to the High Court. Thus, the Court opined that judicial orders cannot be said to violate the Fundamental Rights.

Recently, in Riju Prashad Sharma v. State of Assam 2015 9 SCC 461, Hon’ble the Supreme Court categorically held that while acting on the judicial side, Courts cannot be held to be ‘State’ under Article 12 of the Constitution. However, when the Courts are acting in purely administrative capacity, then they may attract writ jurisdiction against their Administrative actions.