What is the purpose of Article 12?🔗

The primary purpose of Article 12 is to define the term "State" as it is used in Part III of the Indian Constitution, which deals with Fundamental Rights. Fundamental Rights are enforceable against the State. Therefore, it's crucial to understand precisely which entities are considered part of the "State" for the purpose of enforcing these rights. If an entity falls under the definition of "State" as per Article 12, it is bound to uphold the Fundamental Rights; otherwise, it is not.

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What are the key components of the definition of "State" in Article 12?🔗

The definition includes the following:

• The Government and Parliament of India: This refers to the Union Executive (President, Prime Minister, Council of Ministers) and the Union Legislature (Lok Sabha and Rajya Sabha).
• The Government and the Legislature of each of the States: This includes the State Executive (Governor, Chief Minister, Council of Ministers) and the State Legislature (Legislative Assembly and, where applicable, Legislative Council).
• All local authorities: This encompasses authorities like municipalities, district boards, panchayats, improvement trusts, etc., which are involved in local self-governance.
• Other authorities within the territory of India: This is the most debated and interpreted part of Article 12. It includes bodies that might not be explicitly governmental but still exercise significant governmental or public functions.
• Other authorities under the control of the Government of India: This includes bodies that may be located outside India but are still subject to the control of the Indian government.

What is the meaning of "local authorities"?🔗

"Local authorities" are institutions of local self-government, administering a small area like a village, town, or city. They are typically characterized by:

• Separate legal existence: They are distinct entities, often created by statute.
• Elected representatives: Their members are usually elected by the local population.
• Power to levy taxes or fees: They have the authority to raise revenue to fund their operations.
• Autonomy (to some degree): They have a degree of independence in managing their local affairs.
• Entrusted by Statute : with functions, which are usally entrusted to the municipalities.

Examples include:

• Municipal Corporations: Governing large cities.
• Municipal Councils/Municipalities: Governing smaller urban areas.
• Gram Panchayats: Governing villages.
• District Boards: Governing rural areas at the district level.
• Cantonment Boards: Governing areas with a significant military presence.

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What is the meaning of "other authorities"? This is the crucial part; how have the courts interpreted it?🔗

This is indeed the most crucial and complex aspect of Article 12. The term "other authorities" is not defined in the Constitution, so its interpretation has evolved through a series of landmark Supreme Court judgments. The courts have moved from a narrow interpretation to a broader, more inclusive one. Here's a breakdown of the key principles and tests developed by the judiciary:

• Ejusdem Generis (Initially, but largely discarded): Initially, some courts tried to apply the principle of ejusdem generis, meaning "of the same kind." This would mean that "other authorities" should be interpreted in light of the preceding terms (Government, Legislature, local authorities), implying that they must be of a similar governmental nature. However, the Supreme Court largely moved away from this restrictive interpretation.

• Rajasthan State Electricity Board v. Mohan Lal (1967): This case marked a significant shift. The Supreme Court held that "other authorities" could include bodies created by statute, even if they were not performing strictly governmental functions. The crucial factor was whether the body was exercising powers conferred by law that could affect the rights of citizens. The Rajasthan State Electricity Board, a statutory corporation, was held to be "State."

• Sukhdev Singh v. Bhagatram (1975): The Court held that statutory corporations like ONGC, LIC, and IFC were "State" because they were created by statute, had significant governmental control, and performed functions of public importance. This case expanded the scope significantly.

• R.D. Shetty v. International Airport Authority of India (1979) (The "Instrumentality or Agency" Test): This case laid down a comprehensive test to determine whether a body is an "instrumentality or agency" of the State, and therefore falls under "other authorities." The court considered factors like:

  • Financial Resources: Is the entire share capital owned by the government? Does the government provide substantial financial assistance?
  • Functional Character: Is the body performing a function of public importance or one that is closely related to governmental functions?
  • Plenary Control: Does the government exercise deep and pervasive control over the body's management and policies?
  • Departmental Transfer: Was a government department transferred to form the corporation?
  • Monopoly Status: Does the body enjoy a monopoly status that is conferred or protected by the State?

  If the answer to most of these questions is "yes," the body is likely to be considered an instrumentality or agency of the State.

• Ajay Hasia v. Khalid Mujib (1981): This case further refined the "instrumentality or agency" test and reiterated the factors laid down in R.D. Shetty. It held that a society registered under the Societies Registration Act could be "State" if it met the criteria of being an instrumentality or agency.

• Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002): This is a crucial case. The Supreme Court overruled an earlier judgment ( Sabhajit Tewary v. Union of India ) and held that the Council of Scientific and Industrial Research (CSIR) is "State" under Article 12. This further broadened the scope. The Court emphasized that the R.D. Shetty test is not rigid and should be applied flexibly, considering the cumulative effect of all relevant factors. The focus is on whether, in substance, the body is financially, functionally, and administratively dominated by or under the control of the Government.

• Zee Telefilms Ltd v. Union of India (2005): Board of Control for Cricket in India (BCCI) is not the state, within the meaning of the expression under Article 12. The Board is not created by a statute,the government does not have any financial stake, and, also the board, enjoys autonomous status.

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Can a private entity ever be considered "State" under Article 12?🔗

Generally, purely private entities are not considered "State." However, the lines have become somewhat blurred in recent times, especially with the rise of public-private partnerships and the delegation of public functions to private bodies. The key question remains whether the private entity is performing a "public function" and whether it is sufficiently connected to the State in terms of control, funding, or functional character.

• Public Function Doctrine: If a private body is performing a public function (e.g., providing essential services like education, healthcare, or utilities), it might be subject to some of the constraints of Part III, even if it doesn't meet the full "instrumentality or agency" test. This area of law is still evolving. The degree of state control and the nature of the function are crucial considerations.

• Example: A private hospital running a government-sponsored healthcare scheme, or a private school receiving substantial government funding and subject to government regulations regarding admissions and curriculum, might be considered to be performing a public function and could be subject to some Fundamental Rights obligations, particularly in relation to non-discrimination (Article 15) and equality of opportunity (Article 16). However, this would be a limited application, and they wouldn't be considered "State" for all purposes.

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What about the judiciary? Is the judiciary "State" under Article 12?🔗

This is a nuanced issue.

• Judicial Capacity: When the judiciary performs its core judicial functions (adjudicating disputes, interpreting the law), it is generally not considered "State" for the purpose of enforcing Fundamental Rights against itself. This is because the judiciary is the protector of Fundamental Rights, and holding it subject to them in its judicial capacity would create a conflict. You cannot file a writ petition against a High Court judgment alleging that the judgment itself violates your Fundamental Rights. The remedy lies in appeal to a higher court.
• Administrative Capacity: However, when the judiciary acts in an administrative capacity (e.g., making rules for its own administration, employing staff, conducting examinations), it is considered "State" and is subject to Fundamental Rights. For example, if the High Court conducts a recruitment process for court staff, it must adhere to the principles of equality and non-discrimination (Articles 14 and 16).

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What are some examples of bodies that have been held to be "State" and those that have not?🔗

Held to be "State":

• Life Insurance Corporation of India (LIC)
• Oil and Natural Gas Corporation (ONGC)
• Steel Authority of India Limited (SAIL)
• Council of Scientific and Industrial Research (CSIR)
• Statutory universities (e.g., Delhi University)
• Government-owned companies where the government holds a majority stake and exercises significant control
• International Airport Authority of India
• Regional Rural Banks
• Societies, registered under Societies Registration Act, which essentially work as a instrument of state, having deep and pervasive control.

Not held to be "State" (Generally):

• Board of Control for Cricket in India (BCCI) - Zee Telefilms case (though this is debated, and there are arguments for some limited application of public law principles)
• Private companies not performing public functions and not significantly controlled by the government
• Purely private educational institutions (unless receiving substantial state funding and performing a delegated public function)
• Cooperative societies (generally, unless they meet the instrumentality test)
• Judiciary when performing it's core functions.

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