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Article 12 of the Indian Constitution: Definition of 'State'

Part: III
Shorthand Notes: State = Union Govt/Parl + State Govt/Leg + Local Authorities + Other Authorities (under Govt control)

Article 12 of the Indian Constitution is foundational to the understanding and application of Fundamental Rights. It serves as an interpretative provision, specifically defining the term ‘State’ as it is used throughout Part III of the Constitution, which enumerates the Fundamental Rights.

This definition is crucial because Fundamental Rights are, for the most part, enforceable against the ‘State’. By defining ‘State’, Article 12 clarifies against which entities a citizen can seek protection of their fundamental freedoms and rights guaranteed by the Constitution.

Original Text

12. Definition. In this part, unless the context otherwise requires, “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; and (d) all local or other authorities under the control of the Government of India.

Detailed Explanation

Article 12 provides a non-exhaustive definition of the term ‘State’ for the sole purpose of enforcing Fundamental Rights under Part III. The use of the word “includes” suggests that the definition is illustrative and not exhaustive. The entities covered under Article 12 are:

  1. The Government and Parliament of India: This clearly includes the executive and legislative organs at the Union level. The President, the Council of Ministers, and the Parliament (Lok Sabha and Rajya Sabha) fall under this category.
  2. The Government and the Legislature of each of the States: This covers the executive and legislative organs at the State level. The Governor, the Chief Minister, the State Council of Ministers, and the State Legislature (Vidhan Sabha and Vidhan Parishad where they exist) are included.
  3. All local or other authorities within the territory of India:
    • Local Authorities: This category includes bodies like Municipalities, Panchayats, District Boards, Improvement Trusts, etc., which are legally entitled to or entrusted by the government with control or management of a municipal or local fund.
    • Other Authorities: This is the most debated and litigated part of Article 12. It refers to authorities other than the Union and State governments and local authorities, provided they are “within the territory of India”. The interpretation of “Other Authorities” has evolved significantly through judicial pronouncements. Early interpretations were restrictive, limiting it to authorities exercising governmental or sovereign functions. However, later judgments, particularly in cases like Rajasthan State Electricity Board v. Mohan Lal (1967), expanded the scope to include statutory and non-statutory bodies exercising power or authority under law.
  4. All local or other authorities under the control of the Government of India: This clause extends the definition to authorities that may not be strictly “within the territory of India” but are “under the control of the Government of India”. This can include bodies established abroad but controlled by the Indian government. This clause also reinforces the idea that control by the government is a key factor in determining whether an entity is ‘State’.

The judiciary, primarily the Supreme Court, has played a pivotal role in defining the scope of “Other Authorities”. Landmark judgments have laid down various tests to determine if a body qualifies as ‘State’ under this category. Key tests include:

  • Functional Test: Does the body perform public functions or functions closely related to governmental functions? (Initially considered, later expanded).
  • Control Test: Is the body financially, functionally, or administratively controlled by the government? Significant control is a strong indicator.
  • Deep and Pervasive Control Test: Developed in cases like Ajay Hasia v. Khalid Mujib Sehravardi (1981), this test examines the extent of governmental control. Factors considered include:
    • Financial assistance from the government is the primary source of funding.
    • Existence of deep and pervasive governmental control over the management and policies.
    • The functions of the corporation are of public importance and closely related to governmental functions.
    • A department of the government is transferred to the corporation.
    • The corporation enjoys a monopoly status protected by the state.
  • Instrumentality or Agency Test: Propounded in R.D. Shetty v. International Airport Authority of India (1979), this test views a body as ‘State’ if it is an instrumentality or agency of the government. The factors considered are similar to the deep and pervasive control test.

These tests have brought various entities like public sector undertakings, statutory corporations (e.g., LIC, ONGC, FCI), universities (in many cases), and even some registered societies or co-operative societies substantially funded and controlled by the government within the ambit of ‘State’ for the purpose of Part III. It is important to note that purely private bodies, not having any financial, functional, or administrative nexus with the government, are generally not considered ‘State’ under Article 12, although Fundamental Rights can be enforced against private individuals or entities in specific contexts (e.g., Article 15(2), Article 17, Article 23, Article 24), which are direct mandates rather than limitations on the ‘State’.

Detailed Notes

  • Article 12 defines the term ‘State’ specifically for the application of Fundamental Rights in Part III.
  • The definition is inclusive, meaning it lists specific entities but can also include others.
  • The ‘State’ against which Fundamental Rights are enforceable includes:
    • Executive and Legislature of the Union Government (President, Cabinet, Parliament).
    • Executive and Legislature of State Governments (Governor, Cabinet, State Legislature).
    • Local Authorities within India (Municipalities, Panchayats, etc.).
    • Other Authorities within the territory of India.
    • Local or Other Authorities under the control of the Government of India.
  • The term “Other Authorities” is subject to judicial interpretation.
  • Early interpretations were restrictive, linking ‘Other Authorities’ to sovereign functions.
  • Later judgments expanded the scope significantly to include statutory and non-statutory bodies exercising power under law.
  • Key judicial tests developed to identify ‘Other Authorities’ include:
    • Control Test (extent of financial, administrative, functional control).
    • Functional Test (nature of functions performed - public importance, governmental nexus).
    • Deep and Pervasive Control Test (examining multiple factors like funding, control over management/policy, transfer of government department, monopoly status).
    • Instrumentality or Agency Test (whether the body acts as an arm of the government).
  • Entities considered ‘State’ often include: Public sector undertakings, statutory corporations, government companies, universities substantially funded and controlled by the government.
  • The tests for ‘Other Authorities’ are not rigid rules but guidelines; each case is examined based on its facts.
  • Purely private bodies are generally not considered ‘State’ under Article 12, although certain Fundamental Rights have horizontal application (enforceable against individuals/private entities).
  • Article 12 does not define ‘State’ for purposes outside Part III.

Additional Comments

  • The primary purpose of defining ‘State’ in Article 12 is to identify the entities whose actions can be challenged for violating Fundamental Rights.
  • The judicial interpretation of “Other Authorities” reflects a dynamic approach to ensure that powerful entities performing public functions or heavily controlled by the government do not escape accountability under the Constitution.
  • While private bodies are generally outside the scope of Article 12, the actions of even private entities may be subject to judicial review or regulation if they are performing public functions or if the State is involved in or sanctions their activities.
  • The question of whether the judiciary itself is included in the definition of ‘State’ under Article 12 is complex. While judicial administration might fall under ‘State’, judicial decisions in their judicial capacity are generally not subject to challenge for violating Fundamental Rights, except possibly in cases of procedural violations or lack of jurisdiction.

Summary

Article 12 defines the term ‘State’ for the purpose of applying Fundamental Rights under Part III of the Constitution. It includes the Union and State governments and their legislatures, local authorities, and other authorities within the territory of India or under the control of the Government of India. The interpretation of “Other Authorities” by the judiciary has expanded the scope to cover various public bodies, corporations, and universities that are substantially funded, controlled, or function as instrumentalities of the government, ensuring that Fundamental Rights are enforceable against a wide range of public entities. This definition is critical for determining the entities against whom a citizen can seek constitutional remedies for the violation of their fundamental freedoms.
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