Article 12

Article 12 

Unless the context otherwise requires, the term State’ includes the following – executive and legislature of Union and States, all local or other authorities within territory of India or under the control of government of India.” 

It may be noted that this extended interpretation of the term ‘State’ is limited in its application only to Part III (Fundamental Rights) and Part IV (Directive Principles) and it does not extend to the other provisions of the Constitution e.g. Arts. 309-311 (Part XIV). 

(a) Executive and Legislature of Union and States 

It would obviously include: Union and State Governments, and, Parliament and State Legislatures The acting President of India and Governors of States form part of the Executive The term ‘Government’ includes a Department of Government or any institution under the control of a Government Department e g. the I T or Excise Department; the Forest Research Institute, Dehradun; etc. 

(b) Authorities 

According to Webster’s dictionary, ‘authority’ means a person or body exercising power or command. In the context of Art. 12, ‘authority’ means the power to make laws, orders, regulations, bye-laws, etc., which have the force of law and power to enforce those laws. For instance, the bye-laws made by a Municipal Committee. 

(c) Local Authorities 

The expression as defined in Sec 3 of the General Clauses Act refers to authorities like Municipalities, District Boards, Panchayats, etc. 

(d) Other Authorities 

The expression other authorities’ in Art. 12 is used after mentioning the executive and Legislature of Union and States, and all local authorities. Thus, it was held that it could only indicate authorities of a like nature i. e ejusdem generis. So construed, it could only mean authorities exercising governmental or sovereign functions It cannot include persons, natural or juristic persons. 

In University of Madras v. Santa bai The principle of ejusdem generis or things of like nature was applied and this meant that authorities exercising governmental or sovereign function would only be covered under other authorities. The liberal

interpretation came when the Apex court in Ujjambai v. State of U.P rejected the interpretation on the basis of ejusdem generis and held that no restriction can be assigned to the interpretation of the term. 

In Rajasthan State Electricity Board v. Mohanlal, the Supreme Court 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” 

In Chandra Mohan Khanna v NCERT .N-C.E.R.T. is not a State’. The object of the National Council of Educational Research and Training, a society, is to assist and advice Ministry of Education in the implementation of policies of the government. These activities are not wholly related to governmental functions. The governmental control is confined only to proper utilization of the grant. It is an autonomous body. Art. 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression ‘State’. 

In Som Prakash v. Union of India, the company was held to fall under Art. 12. The Court emphasized that the true test for the purpose of whether a body was an ‘authority’ or not was not whether it was formed by a statute, or under a statute, but it was “functional”. In the instant case, the key factor was “the brooding presence of the state behind the operations of the body, statutory or other”. In this case, the body was semi-statutory and semi-non-statutory. It was non- statutory in origin (as it was registered); it also was recognised by the Act in question and, thus, had some “statutory flavour” in its operations and functions. In this case, there was a formal transfer of the undertaking from the Government to a government company. The company was thus regarded as the “alter ego” of the Central Government. The control by the Government over the corporation was writ large in the Act and in the factum of being a government company. Agency of a State would mean a body which exercises public functions. 

The question regarding the status of a non-statutory body was finally clinched in Ajay Hasia, where a society registered under the Societies Registration Act running the regional engineering college, sponsored, supervised and financially supported by the Government, was held to be an ‘authority’. Money to run the college was

provided by the State and Central Governments. The State Government could review the functioning of the college and issue suitable instructions if considered necessary. Nominees of the State and Central Governments were members of the society including its Chairman. The Supreme Court ruled that where a corporation is an instrumentality or agency of the government, it must be held to be an authority under Art. 12. “The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society….” Thus, a registered society was held to be an ‘authority’ for the purposes of Art. 12. Ajay Hasia has initiated a new judicial trend, viz., that of expanding the significance of the term “authority”. In Ajay Hasia, The Supreme Court laid down the following tests to adjudge whether a body is an instrumentality of the government or not: 

(1) If the entire share capital of the body is held by the government, it goes a long way towards indicating that the body is an instrumentality of the government. 

(2) Where the financial assistance given by the government is so large as to meet almost the entire expenditure of the body, it may indicate that the body is impregnated with governmental character. (3) It is a relevant factor if the body enjoys monopoly status which is conferred or protected by the state. 

(4) Existence of deep and pervasive state control may afford an indication that the body is a state instrumentality. 

(5) If the functions performed by the body are of public importance and closely related to governmental functions, it is a relevant factor to treat the body as an instrumentality of the government. 

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 where, after considering the authorities it concluded that the tests formulated in Ajay Hasia were not a rigid set of principles so that if a body falls within any of those tests, ex hypothesi, it must be considered 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.”

In Zee Telefilms v. Union of India as 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. 

G. BASSI REDDY v INTERNATIONAL CROPS RESEARCH INSTITUTE (AIR 2003 SC 1764) 

In this case, the International Crops Research Institute (ICRISAT) was not held to be a ’State’ within the meaning of Art. 12. The court opined that it is an international organization and has been set up as non-profit research and training centre to help developing countries to alleviate rural poverty and hunger. It is not set up by the Government, and is not controlled by nor is accountable to the Government. The government’s financial contribution to ICRISAT is minimal. Its participation in ICRISAT’s administration is limited to 3 out of 15 members. 

Is judiciary also included in the word ‘State’? 

In Naresh v State of Maharashtra (AIR 1967 SC 1), it was held that even if a court is the State a writ under Art. 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. What the judicial decision purports to do is to decide the controversy between the parties and nothing more. The court said that the ‘judiciary’ while exercising its rule-making power under Art. 145 would be covered by the expression ‘State’ within the meaning of Art. 12, but while performing its judicial functions, it is not so included. 

In Rupa Ashok Hurra v Ashok Hurra (AIR 2002 SC 1771), the Apex Court has re-affirmed and ruled that no judicial proceeding could be said to violate any of the fundamental rights. It was said to be a settled position of law that the superior courts of justice did not fall within the ambit of ‘State’ or ‘other authorities’ under Art. 12.