Understanding Article 12: The Constitutional Definition of ‘State’ in India

Article 12 defines the term ‘State’ for the purposes of the fundamental rights. Article 12 gives the exclusive and non - exhaustive definition of the ‘State’. The State includes:

a)     The Government and Parliament of India.

b)    The Government and the Legislature of each of the States.

c)     All local or other authorities within the territory of India.

d)    All local or other authorities under the control of the Government of India.

The first two categories include the Executive and the Legislative organs of the Union and the States. The term ‘Government’ stands to include a Department of the Government or any other institution under the control of the Department of the Government for example, the Income Tax Department. The President of India while acting in their official capacity must be included in the term Government. The expression “local authority” refers to the unit of local self government and is defined under Section 3(31) of the General Clauses Act, 1897. Local authority would mean a Municipal Committee, District Board, Board od Port Commissioner or other authority legally entitled to or entrusted by the Government with the control or management of a municipal or local fund.

The expression ‘other authorities’ has neither been defined in the Constitution nor in any statute. It is therefore left for the Court to interpret this expression so as to determine the scope and extent of the fundamental rights. In the context of Article 12 the term authority means the power to make laws, orders, regulations and bye- laws etc. having the force of law and also the power to enforce them. The expression other authorities came to be interpreted for the first time by the Madras High Court in University of Madras V. Shantha Bai, the Madras High Court held that  the words “ local or other authorities” must be construed “ejusdem generis” with Government and Legislature and the meaning so construed could only mean authorities exercising governmental functions. According to the rule of ejusdem generis  only those authorities would be included in the expression of other authorities which are of the like nature of the authorities named in Article 12, thus it means authorities exercising governmental or sovereign functions.

The question as to the interpretation of the expression “other authorities” was considered in detail by the Supreme Court in Rajasthan State Electricity Board V. Mohan Lal. The Supreme Court had held that the Rajasthan Electricity Board was clearly an authority to which the provisions of Part III of the Constitution were applicable. The Court had observed that the expression “other authorities” was wide enough to include within it every authority created by the Statute and functioning within the territory of India or under the control of the Government of India. The Majority had further opined that it was not necessary that the statutory authority to be included in the term “State” under Article 12 should be engaged in performing governmental or sovereign functions. Thus, a statutory authority having some commercial functions would also be an authority under Article 12.

In R.D. Shetty V. International Airport Authority,  the Court discussed in detail various relevant factors and developed the general propositions for determining whether an authority was an instrumentality or agency of the State.

The tests are summarized as below:

●      If the entire share capital of the corporation is held by the Government it would go a long way towards indicating that the corporation is an instrumentality of the Government.

●      Existence of a deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.

●      Whether the corporation enjoys a monopoly status which is State conferred or protected.

●      If the functions of the corporation are of public importance and closely related to the governmental functions it would be a relevant factor in classifying the corporation as an instrumentality of state.

●      If the department of the Government is transferred to a corporation it would be a strong factor supporting this inference of the corporation being an instrumentality or agency of the Government.

Once the authority is found to be an instrumentality of the Government it would be an authority included in the term “State” under Article 12 and shall be subjected to the same constitutional limitations as the Government. However, the tests above are not clinching or conclusive but are merely indicative and have to be used with care and caution.

In the case of Ajay Hasia V. Khalid Mujib, the Court took a step forward and observed that the concept of instrumentality or agency of the Government was not limited to a Corporation created by a Statute but was equally applicable to a company or a society and in each case it would have to be decided on the consideration of the relevant factors.

It is important to remember that the only rulings rendered by courts cannot be contested on the grounds that they violate basic rights. On the other hand, a judgment made by a quasi-judicial or administrative entity, such a tribunal, may be contested on the grounds that it violates the person who feels wronged by it or that it fails to exercise its jurisdiction. Therefore, one may use writ jurisdiction to contest the rulings made by administrative bodies and tribunals.

It may be thus stated that the State acting through its instrumentalities or agencies is prohibited from violating the fundamental rights for what the State cannot do directly; it shall not be allowed to do that thing in a colourable manner through its instrumentalities. The extended interpretation of the definition of the State is limited in its application only to Part III and Part IV and it does not extend to other provisions of the Constitution. Article 12 is significant because it defines the term "State," which is used in several sections pertaining to basic rights, including Articles 14, 15, and 21.