Introduction to Article 12
Article 12 of the Indian Constitution provides a crucial definition of the term 'State' for the purpose of Part III, which deals with Fundamental Rights. Since most Fundamental Rights are guarantees against arbitrary actions of the 'State', understanding the scope of this definition is essential to determine against whom these rights can be enforced.
Article 12 provides an inclusive and expansive definition, encompassing not only governmental and legislative bodies at the Union and State levels but also local authorities and, significantly, "other authorities." The judiciary has, through various landmark judgments, further clarified and expanded the ambit of "other authorities," ensuring that entities performing public functions or acting as instrumentalities of the State are also bound by Fundamental Rights.
Source: Broad understanding synthesized from Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'; M.P. Jain, 'Indian Constitutional Law'.
Article 12: Inclusive Definition of 'State'
"In this Part [Part III], 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."
The use of the word "includes" signifies that the definition is not exhaustive but illustrative, allowing for broader judicial interpretation. Its primary purpose is to define entities against which Fundamental Rights can be claimed.
Govt & Parliament of India
Executive & legislative organs at Union level. Includes President, PM, Ministers, Departments, Lok Sabha, Rajya Sabha.
Govt & Legislature of States
Executive & legislative organs at State level. Includes Governor, CM, Ministers, Departments, State Assemblies.
All Local Authorities
Bodies administering local areas with autonomy. E.g., Municipalities, Panchayats, District Boards, Port Trusts.
All Other Authorities
Most debated component. Statutory (LIC, ONGC) or non-statutory bodies under GoI control or within territory.
Judicial Interpretation: Tests to Determine 'State'
Initial Narrow View
Only bodies performing governmental or sovereign functions (e.g., Ujjambai vs. State of U.P., 1962).
Widening the Scope
Included all statutory authorities with legal powers, irrespective of sovereign functions (e.g., Rajasthan State Electricity Board vs. Mohan Lal, 1967).
"Agency or Instrumentality" Tests
Defined specific criteria to identify entities acting as extensions of the State (e.g., R.D. Shetty, Ajay Hasia).
Key Landmark Cases & Tests:
The SC held that "other authorities" would include all authorities created by the Constitution or statute on whom powers are conferred by law. It is not necessary that the statutory authority should be engaged in performing governmental or sovereign functions. This significantly widened the scope.
Statutory corporations like LIC, ONGC, IFC were held to be 'State' as they had a statutory character and were subject to deep and pervasive state control.
Justice P.N. Bhagwati laid down several indicative tests to determine if a body is an agency or instrumentality of the State:
- Substantial financial assistance from the State.
- Existence of deep and pervasive State control.
- Functional character being governmental in essence (public importance).
- If a department of Government is transferred to a corporation.
- Whether the corporation enjoys monopoly status (State-conferred/protected).
The International Airport Authority was held to be 'State'.
The Supreme Court reiterated and consolidated the tests laid down in R.D. Shetty. A society registered under the Societies Registration Act (Regional Engineering College, Srinagar), largely financed and controlled by the government, was held to be 'State'. The Court emphasized substance of control and functional character over mere form.
Overruled Saboojit Tewary vs. Union of India, holding the Council of Scientific and Industrial Research (CSIR) to be 'State' due to significant government funding and pervasive control. The test is whether the body is financially, functionally, and administratively dominated by or under the control of the Government.
The Supreme Court held that the Board of Control for Cricket in India (BCCI) is NOT 'State' under Article 12. Reasoning: Not created by statute, not substantially financed by government, no pervasive control. Its functions were not seen as governmental. However, the Court suggested it might be amenable to writ jurisdiction under Article 226 for certain actions due to its monopoly status.
General Principle: If a body acts as an "alter ego" or "extended arm" of the government, or performs public functions with significant state control/funding, it should be subject to Fundamental Rights.
Is Judiciary Included in 'State'?
Arguments for Inclusion (in some capacity)
- Definition in Article 12 is inclusive.
- Judiciary is an organ of the State.
- Courts make rules and administrative decisions that affect FRs.
- Non-judicial functions should be amenable to FRs.
Arguments Against Inclusion (judicial capacity)
- Judiciary's primary role is to protect FRs.
- Challenging judicial orders as FR violations leads to endless litigation.
- Errors corrected through appeal/review, not by treating court as infringer.
Current Position (Generally Accepted View):
- Administrative/Rule-making capacity: Yes, generally considered 'State' (e.g., appointing staff, court procedures).
- Judicial/Adjudicatory capacity: Generally NOT considered 'State' for direct challenge under Article 32 by claiming judgment violates FRs (Naresh Shridhar Mirajkar vs. State of Maharashtra, 1967). Remedy for judicial errors lies in appeal, review, or curative petition (Rupa Ashok Hurra vs. Ashok Hurra, 2002).
Courts are, however, expected to be mindful of Fundamental Rights while passing judgments and ensure their own procedures do not violate principles of natural justice.
Relevance of Defining 'State'
The definition of 'State' in Article 12 is crucial because Fundamental Rights enshrined in Part III are primarily guarantees against the State and its instrumentalities.
Vertical vs. Horizontal Application:
- Vertical Application: Most FRs protect individuals against arbitrary actions of the 'State' (government, legislature, public authorities). Article 12 defines these entities.
- Horizontal Application (Limited): Some FRs are also available against actions of private individuals. Examples include:
- Article 15(2): Prohibits discrimination by private individuals (access to public places).
- Article 17: Abolition of untouchability.
- Article 23: Prohibition of traffic in human beings and forced labour.
- Article 24: Prohibition of child employment in hazardous jobs.
By defining 'State' broadly, the Constitution and judiciary ensure that a wide range of public or quasi-public bodies that exercise significant power or perform public functions are held accountable to constitutional standards of fundamental rights. This also determines the scope of writs (Art 32 & 226).
Prelims-Ready Notes
- Article 12: Defines 'State' for Part III (Fundamental Rights). Inclusive definition.
- 'State' includes: Govt & Parliament of India, Govt & Legislature of states, All local authorities (Municipalities, Panchayats), All other authorities (statutory like LIC, ONGC & non-statutory if instrumental).
- Judicial Tests for "Other Authorities": (R.D. Shetty, Ajay Hasia) Substantial GoI financial resources, Deep & pervasive State control, Functions of public importance, Dept of Govt transferred to it, Monopoly status.
- BCCI: Held NOT 'State' by SC (Zee Telefilms case).
- Judiciary as 'State': Administrative/Rule-making capacity: Yes. Judicial/Adjudicatory capacity: Generally NO (Naresh Mirajkar case).
- Relevance: FRs mainly available against State action. Determines who is bound.
- Horizontal Application of FRs: Limited but exists for Art 15(2), 17, 23, 24 (against private individuals).
Mains-Ready Analytical Notes
Expansive Interpretation – A Tool for Accountability
Judiciary's broad interpretation prevents circumvention of constitutional obligations, extending FRs to quasi-governmental bodies and PSUs, holding them accountable to constitutional standards.
Dilemma of Including Judiciary within 'State'
Tension between judiciary as State organ (administrative side) and its core adjudicatory function. Current nuanced position balances accountability with judicial finality, though courts must respect FRs.
Impact of Liberalization & Privatization
Raises questions whether private entities performing public functions (e.g., education, health) should be 'State'. Existing tests might need adaptation in this changing context, with 'public function' gaining importance.
"Control of GoI" – Extra-territorial Application
Bodies functioning outside India can be 'State' if controlled by GoI (e.g., Indian embassy), extending FR protection to citizens abroad against actions of such bodies.
Significance for Good Governance
Article 12 promotes good governance, fairness, non-arbitrariness, and respect for individual rights by making a wide array of public authorities accountable, reinforcing that all power must be within constitutional confines.
Current Affairs & Recent Developments
- Petitions against Private Entities: Ongoing efforts to hold private entities (hospitals, schools, tech platforms) accountable under FRs if they perform public functions or receive state benefits, leading to debates on extending 'State' definition or indirect application.
- BCCI and 'State' Status: Despite 2005 ruling, its immense public impact and regulatory role continue calls for greater accountability, sometimes via Article 226 for public interest, with past Law Commission recommendations for 'public body' status.
- Social Media Platforms as 'State'?: Global debate on whether large tech companies controlling speech/information perform public functions, meriting FR-like obligations (e.g., free speech, censorship).
- Gig Economy Workers' Rights: Questions arise if gig platforms (private) bear state-like responsibilities concerning fair wages, social security (Art 21, 23), especially under government regulatory frameworks.
Note: Direct new landmark judgments fundamentally altering established tests for 'State' under Art 12 are infrequent. Current developments often involve applying existing tests to new entities/functions.
UPSC Previous Year Questions (PYQs)
Prelims MCQs:
1. Preamble
2. Directive Principles of State Policy
3. Fundamental Duties
Select the correct answer using the code given below:
(a) 1 and 2 only
(b) 2 only
(c) 1 and 3 only
(d) 1, 2 and 3
Answer: (d)
Hint/Explanation: Preamble (justice, liberty, equality, dignity), DPSPs (socio-economic rights), and FDs (harmony, environment, etc.) all reflect principles found in UDHR.
1. Government and Parliament of India.
2. Government and Legislature of states.
3. Judiciary when exercising its judicial functions.
4. Life Insurance Corporation of India (LIC).
Select the correct answer using the code given below:
(a) 1 and 2 only
(b) 1, 2 and 4 only
(c) 1, 2, 3 and 4
(d) 1, 2 and 3 only
Answer: (b)
Hint/Explanation: 1 and 2 are explicitly mentioned. 4 (LIC) has been held to be 'State' by SC. 3 (Judiciary in judicial function) is generally NOT considered 'State' for FR violation by its judgments (Naresh Mirajkar case).
(a) A 'citizen' for the purpose of Article 19.
(b) An 'industry' under the Industrial Disputes Act.
(c) The 'State' under Article 12 for enforcement of Fundamental Rights.
(d) A 'public servant' under the Prevention of Corruption Act.
Answer: (c)
Hint/Explanation: The tests laid down in cases like R.D. Shetty and Ajay Hasia are specifically to determine if an authority is an agency or instrumentality of the government, and thus falls under "other authorities" within the definition of 'State' in Article 12.
Mains Questions:
Question 1:
What is the significance of the definition of ‘State’ under Article 12 of the Indian Constitution? Discuss, with the help of judicial pronouncements, how the scope of "other authorities" has been expanded over time.
Direction/Value Points: Introduce Article 12 purpose. Explain significance (accountability, preventing evasion). Detail expansion of "Other Authorities" with cases like Rajasthan SEB, Sukhdev Singh, R.D. Shetty, Ajay Hasia, Pradeep Kumar Biswas. Conclude on impact.
Question 2:
"The definition of 'State' in Article 12 is the gateway to claiming Fundamental Rights." Elaborate on this statement. Is the judiciary included within this definition? Discuss the nuanced position.
Direction/Value Points: Affirm statement and explain why (FRs against State, wide applicability, scope of writs). Discuss judiciary's nuanced position (admin vs. judicial capacity) with cases like Naresh Mirajkar, Rupa Ashok Hurra.
Question 3:
The evolving interpretation of "other authorities" under Article 12 reflects the judiciary's attempt to keep pace with the changing nature of governance and the expansion of state functions. Discuss with examples. What challenges arise in applying these tests to modern, complex entities?
Direction/Value Points: Introduction on judiciary's dynamic role. Link to changing state functions (welfare to liberalization). Discuss evolution with examples (Rajasthan SEB, R.D. Shetty, Ajay Hasia). Detail challenges for modern entities (privatization, complex structures, digital platforms). Conclude on need for evolving jurisprudence.
Original MCQs for Prelims
1. The entire share capital of the body is held by the government.
2. Existence of deep and pervasive state control.
3. The body performs functions of public importance.
4. The body was established by a specific Act of Parliament.
Select the correct answer using the code given below:
(a) 1 and 4 only
(b) 2 and 3 only
(c) 1, 2 and 3 only
(d) 1, 2, 3 and 4
Answer: (c)
Explanation: The tests emphasized by these cases to identify an "instrumentality or agency" (even if not a statutory body) included: (1) financial resources of the State being the chief funding source, (2) deep and pervasive State control, and (3) functional character being governmental in essence/public importance. While statutory creation (4) makes a body 'State', these specific cases broadened the scope beyond just statutory bodies.
(a) Passing a judgment in a civil dispute between two private parties.
(b) Interpreting a provision of the Constitution in a landmark case.
(c) Exercising its administrative powers or making rules for court procedures.
(d) Issuing a writ of Habeas Corpus against illegal detention by police.
Answer: (c)
Explanation: The judiciary is generally considered 'State' under Article 12 when it acts in its administrative or rule-making capacity. Its core judicial functions (a, b, d – where it acts as an adjudicator or enforcer of rights against other state actors) are usually not treated as actions of 'State' against which FRs can be claimed by challenging the judgment itself as an FR violation.
Original Descriptive Questions for Mains
Question 1:
"The expansive interpretation of 'other authorities' under Article 12 by the Indian judiciary has been pivotal in ensuring that Fundamental Rights are not rendered meaningless in an era of diversified state operations." Critically evaluate this statement, highlighting both the benefits and potential concerns arising from such an expansion.
Key Points: Introduce Article 12 & 'other authorities'. Benefits (accountability, preventing evasion, citizen protection, strengthening constitutionalism) with cases. Concerns (uncertainty, impact on autonomy, burden on judiciary, blurriness with private entities). Conclude with balanced evaluation.
Question 2:
Discuss the relevance of defining 'State' under Article 12 for the enforcement of Fundamental Rights. In this context, analyze the complexities involved in determining whether a private body performing public functions can be considered 'State'.
Key Points: Relevance (FRs against State, writ scope). Complexity of private bodies performing public functions (traditional vs. modern context, judicial tests like "public function" test, arguments for/against inclusion). Conclude on need for nuanced approach.