What is State? “ARTICLE 12 OF THE CONSTITUTION”

Introduction:

This blog will discuss about what is state? What is there in Article 12? Why is it important to study this term? How state is defined under the supreme law of land that is constitution? What are all organs which comes under purview of term state? What all are other authorities under Article 12 of the state? Article 32 of the constitution which confer vital power over supreme court and remedy for the citizens to directly approach apex in case of abrogation of fundamental rights. That remedy can be availed against the state only. Therefore lets read further to learn state.

Article 12 of constitution

In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Article 12 of the constitution of India gives an inclusive definition of the term “state”. It includes as under?

1. Government and Parliament of India
2. Government and legislature of each state
3. All the local authorities
4. Other authorities

Why definition of state is important?

Article 32 of the constitution contemplates that the supreme court can enforce fundamental rights only against the “state”. Therefore, it is very obvious to elucidate what all are the authorities against whom a person can seek before the supreme court to issue writ or direction for the enforcement of rights conferred under part III of constitution.

Other authorities:

All the terms in article 12 are unambiguous however, the term other authorities were uncertain to the extent that what bodies or institutes will be incorporated as state under Article 12. This shows that the definition of state is not exhaustive and the Hon’ble supreme court in the several precedents had construed the term other authorities which will be discussed further in the present blog.

Case Ujjam Bai vs. State of U.P. AIR 1962 SC 1621:

In the said case 7 judges’ bench of supreme court had considered a division bench judgment of Madras High court i.e., The University of Madras vs. Shantha Bai (1953): wherein the High court had construed whether university of Madras was “other authority” as in state within the definition of article 12 of constitution.

Division bench observed that term “other authorities” must be construed “ejusdem generis” i.e., “like nature” with government or legislature and so construed can only mean authorities exercising governmental functions. They would not include persons natural or juristic who can not be regarded as instrumentalities of government.

Case: Rajasthan electricity Board vs. Mohan Lal AIR 1967 SC 1857: The constitution bench observed that in order to consider whether statutory or constitutional body is authority within the meaning of article 12 it is necessary to bear in mind two factors:

• Whether fundamental rights were intended to be forced against such authority;
• Also, whether such authority is invested with sovereign power- that is power to make rules and enforce them.

Case: R. D. Shetty vs. The international airport authority of India (1979) 3 SCC 489: In the said case court relied on the constitution bench judgment Rajasthan electricity Board (supra): Hon’ble court gave finding for determining whether a corporation is an agency or instrumentality of government. Court gave following factors:

1. whether there is any financial assistance given by the State,
2. whether there is any other form of assistance, given by the State,
3. whether there is any control of the management and policies of the corporation by the State, 
4. whether the corporation enjoys State conferred or State protected monopoly status 
5. whether the functions carried out by the corporation are public functions closely related to governmental functions.

Case: Ajay Hasia etc. vs. Khalid Mujib Sehravardi & ors. (1981) AIR 487: The constitution bench has laid down following test to determine whether any entity is instrumentality or agency of state or not: 

1. 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 or agency or Government;
2. where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation being impregnated with governmental character;
3. it must also be relevant factor whether the corporation enjoys monopoly status which is State conferred of State protected;
4. existence of deep and pervasive State control;
5. if the functions of the corporation are of public importance and closely related to governmental functions;
6. if a department of Government is transferred to a corporation.

Constitutional or statutory body & sovereign power:

Rajasthan SEB vs. Mohan Lal AIR 1967 SC 1857: In the said case hon’ble court opined that all the constitutional or statutory bodies are state within Article 12. Moreover court appended that the any authority or statutory body vested with “sovereign power of the state” is also state and rights in part III can be enforced against such body.

Statutory corporation:

Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh Raghuvanshi & anr.: (1975) 1 SCC 421: Constitution bench held that the statutory corporation which is carrying the function of public importance is also a state despite the fact that it has no power to pass any binding direction. Court observed that the statutory corporation is instrumentality or agency of state. Court in para 82 held as under:

.........public corporation set up under a special statute to carry on a business or service which Parliament thinks necessary to be carried on in the interest of the nation is an agency or instrumentality of the State and would be subject to the limitations expressed in Article 13(2) of the Constitution. A State is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State.

Test to determine body as state:

Pradeep Kumar Biswas vs. Indian Institute of chemical Biology & Ors.: (2002) 5 SCC 111: In this case 7 judges constitution bench held that the Article 12 is inclusive but not exhaustive. Court further evaluated a test to ascertain the scope of “other authorities” under Article 12 as follows:

1. Body is financially, functionally, administratively dominated by or under control of government;
2. such control must be pervasive;
3. mere regulatory control whether statutory or not is not valid,
4. the body must be created under statute and vested with some power to make laws within the meaning of Article 13 (2);
5. it must be entrusted with the function which are governmental or closely associated with public importance.

Court further observed that whether an entity is state or not can not be ascertained based on the test set forth in Ajay Hasia (supra) case as that was appropriate only to see whether an entity is instrumentality of state or not.

Pradeep Kumar Biswas (supra) test not applicable to private body:

Zee Tele film ltd. & anr. vs. Union of India & ors: (2005) 4 SCC 694: In the said case constitution bench of 5 judges applied the mentioned above which was established by 7 judges to ascertain that whether “BCCI” is state or not. Court observed that BCCI is not financially, functionally or administratively controlled by the government. Moreover any control by the government if merely regulatory and not pervasive. Therefore based on the said test BCCI is not state for the purpose of Article 12.

Court observed that state has different meaning in different contexts and test framed in Pradeep Kumar judgment is is not applicable to private body. As the public interest is involved in the activities of BCCI it is a state with in Article 12 of constitution.

The said finding concerning the functions of the state for analysis of the entity as a state was discarded in various judgments after Zee tele films (supra), and court opined that the remedy under article 226 is open against such entities which do not affirm the test assimilated in Ajay Hasis or Pradeep Kumar judgments.

Whether judiciary is state or not?

Besides what is provided in article 12, the term state has three organs legislature, executive and judiciary. So, the question is whether judiciary is also state within the definition of term state under article? If so whether the fundamental rights could be enforced against the judiciary under article 32 of the constitution? Whether any judgment of any court could be inferred as violative of fundamental rights? Whether the said judgment could be challenged there by asking the Supreme court or high court to issue writ against such inferior court which passed the said judgment?

There are several leading cases wherein the apex court has determined the said issue:

Case: Naresh Shridhar Mirajkar vs. state of Maharashtra: AIR 1967 SC 1: In the said case 9 judges’ bench had scrutinized that judicial decision rendered by court of competent jurisdiction does not abrogates the fundamental rights. However, any administrative function will be inferred under review in case of violation of fundamental rights.

Judicial function and administrative function:

Case: Ajay Hasia (supra) & R. D. Shetty: Courtobservedthat judiciary is capable of violation of fundamental rights in two ways:

• Administrative function,
• Judicial decisions

From the aforesaid precedent it could be comprehended that fundamental rights could be enforced against judiciary in above two situations.

What is administrative function of judiciary?

Article 145 of constitution: It empowers the supreme court to make its own rules to regulate the procedure for hearing the appeals and other matters.

Article 146 of the constitution: It empowers the supreme court to appoint the officers and servants of the supreme court.

Article 141 of the constitution: It emanates that the law made by the supreme court is the law of land. 

However pertinent question is what happens if judiciary is considered as state.

What if judiciary is state?

Judiciary is guardian of fundamental rights, if judiciary is computed as state within the article 12 of the constitution, it would be reckoned that one could avail the enforcement of the fundamental rights against the guardian or the protector of those rights. Basically, the judiciary will be made accountable, and which will impact the independence and rationality of courts. This brings us to the situation what remedy is available if court exceeds its power.

Case: Rupa Ashok Hurra vs. Ashok Hurra: AIR (1997) SC 1266: It is a milestone judgment of constitution bench wherein the apex court, gave finding that no final order of this court can been assailed under Article 32 of constitution eventually writ is not a remedy against the judgment of the this hon’ble court. (read more)