Part III of the Indian Constitution from Articles 12 to 35 guarantees certain fundamental rights and remedies in case of their violation. Article 12 clarifies that the term State occurring in Article 13 (2) or any other provision concerning fundamental rights has been given quality meaning. The same definition has been made applicable to Part IV of Article 36. As fundamental rights have been guaranteed to protect the public from the arbitrary action of the State.

To define the scope of fundamental rights and remedies under Article 32 constitution-makers have defined "State" at the beginning. Present Article 12 was introduced in the Draft Constitution as Article 7. While initiating a debate on this in the Constituent Assembly, Dr B.R. Ambedkar described the scope of this Article as the reason why this Article was placed in the Chapter on fundamental rights of the Constitution.

The objective of fundamental rights is twofold. First, every citizen must be in a position to claim those rights, and Second, they must be binding upon every authority. I shall presently explain what the word 'authority' means to every authority which has got either the power to make laws or the power to have discretion vested in it.

What is the State as per Article 12?

Article 12 defines the term 'State' in Part III of the Constitution. It says that the term 'State' includes the following:

1. The Government and Parliament of India, i.e. Executive and Legislature of the Union.
2. The Government and Legislature of each State, i.e. Executive and Legislature of the State.
3. All Local and Other Authorities within the Territory of India.
4. All Local and Other Authorities are under the control of the Government of India.

The term 'State' thus includes executive as well as the legislative organ of the Union and State. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.

Executive and legislature of Union and State include Union and State Government along with Parliament and State legislatures. The Parliament of India and Governors of states can also be referred to as 'State' as they are a part of the executive. The term 'Government' also includes any department of Government or any Institution under its control. The Income Tax Department and the International Institutes for Population Science could be cited as examples.

1. Authorities:
   According to Webster's Dictionary: " Authority" means a person or body exercising power to command. In the context of Article 12, the word "Authority" means the power to make laws, orders, regulations, bye-laws, notifications, etc. which have the force of law and power to enforce those laws.
    
2. Local Authorities:
   'Local authorities' as defined in Section 3 (31). of the General Clause Act refers to authorities like Municipalities, District Boards, Panchayats, Improvement trusts and Ming Settlement Boards. In Mohammed Yasin v/s Town Area Committee, the Supreme Court held that the bye-laws of a Municipal Committee charging a prescribed fee on the wholesale dealer was an order by a State authority that contravened Article 19 (1) (g). These bye-laws effects and substances have brought about a total stoppage of the wholesale dealer's business in the commercial sense. In Shri Ram v/s The Notified Area Committee, a fee levied under Section 29 of U.P Municipalities Act, 1959, was held to be invalid.
    
3. Other Authorities:
   In Article 12 the expression 'other authorities' is used after mentoring a few of them, such as the Government and Legislature of each State and all local authorities. In the University of Madras v/s Santa Bai, the Madras High Court held that 'other authorities' could only mean authority exercising governmental or sovereign functions. It cannot include a person, natural or juristic, such as a University unless it is 'maintained by the State'.

Once, the Supreme Court has explained the ambit of 'State' to include corporations such as LIC and ONGC since they perform tasks "very close to governmental or sovereign functions." in fact, the term 'State' also accommodates any authority that's created by the Constitution of India and has the power to make laws. It need not performs governmental or sovereign functions.

Some Case Laws on Other Authorities:

• Rajasthan State Electricity Board v/s Mohanlal,1967:
  The Supreme Court held that a State Electricity Board, set up by a statute having some commercial function falls within the meeting of the authority of Article 12.
   
• Sukhdev v/s Bhagatram, 1975:
  The Supreme Court held that three statutory bodies i.e Life Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation falls within the term of Article 12.
   
• R.D. Shetty (Raman Dayaram Shetty) v/s International Airport Authority of India, AIR 1979:
  Issue:
  
  • Whether International Airport Authority is a State under Article 12 of the Indian Constitution?
  The International Airport Authority is a statutory body created under the State and passed by the Parliament to carry out commercial functions of aviation. The Supreme Court held that for determining whether an authority is 'State' under Article 12, the test is whether a particular corporation i.e public or private can be said to be instrumentality or agency of the government or not? Determining it is instrumental for the agency of the State, the same principles mentioned in Ajay Hasia were laid down in this case also.
  
  Hence Supreme Court held that International Airport Authority is a statutory body, an instrumental or an agency of the State and comes within the definition of Article 12.
   
• Saabhajit Tiwari v/s Union of India, 1975:
  The Supreme Court ruled that the Indian Council of Scientific Research, a body registered under the Societies Registration Act, a non-statutory body, but under the control of the Government of India hence was not a State.
  
  Again the Supreme Court made an obligation in Raman suggesting that a non-statutory body falls in the purview of Article 12 if it could act as an instrumentality or agency of the Government the question regarding the status of a non-statutory body was finally decided in Ajay Hasia, 1987.
   
• Ajay Hasia v/s Khalid Mujib, AIR 1981:
  It is a famous case decided by Justice P.N. Bhagwati, on Article 12 of the Indian Constitution which defines the expression of a 'State'.
   

Article 12 Provides "The 'State' Includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local and other authorities within the territory of India or under the control of the Government of India."

The action of any of these organs can be challenged before the Court if the fundamental rights are violated. The interpretation of the term 'Other Authorities' in Article 12 has created a lot of difficulties and problems and judicial opinion has changed from time to time. In the modern era when the Government of the welfare state acts through a natural and legal person, discharged the function through Governmental departments and officials.

Some functions are also discharged through autonomous bodies existing outside the departmental functions. Therefore, what is the character of these bodies created under the different statutes, and whether they fall within the purview meaning of Article 12 was a question of controversy for quite some time. In this case, the question regarding the status of the non-statutory body was finally decided.

In this case, the issue was whether a society registered under the Jammu & Kashmir Societies Registration Act, running a Regional Engineering College, Jammu & Kashmir sponsored, supervised and financially supported by the Government is State under Article12? This case was related to admission to college. The marks for the interview for college admission, and the selection procedure were challenged on the ground that it is violative of Article 14 of the Indian Constitution.

The Supreme Court pointed out that oral tests should not be relied upon as exclusive tests but may be resorted to only as supplementary or additional tests and great care must be taken to see that the persons who are appointed to conduct the oral interview tests are men of high integrity, calibre and qualification. The marks allocated for the test were 33.5%of the total marks. The Court held that the selection procedure was arbitrary and unreasonable.

This Engineering College was not created under a statute but purely a non-statutory body but was registered under Societies Regional Engineering College also comes within the definition of State under Article 12.

Justice P.N. Bhagwati observed as under in this case:
"The Constitutional Philosophy of a Democratic, Socialistic, Republic requires the Government to undertake a multitude of social-economic operations and the Government, having regard to the practical advantage of functioning through the legal device of a corporation, but this contravene of carrying on such activities through a corporation cannot exonerate the Government from its basic obligation to respect the fundamental rights and not to override them.

The mandate of a corporation may be adopted to free the Government from the inevitable constraints of red-tapism and slow-motion but by doing so, the Government cannot allow it to play truant with basic human rights. Otherwise, it would be the easiest thing for the Government to assign to a plurality of corporations, almost every State business such as Post and Telegraph, T.V and Radio, Rail Road and Telephones, in short, every economic activity and thereby cheat the people of India out of the Fundamental Rights guaranteed to them."

The above judgment of the Supreme Court delivered by Mr Justice Bhagwati enunciates the following stages for determining whether an entity is an instrumentality or agency of the State:

1. One thing is clear if the entire share capital of the corporation is held by the Government, it would go a long way toward indicating that the corporation is an instrumental agency or Government.
2. Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Government character.
3. It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.
4. The existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality.
5. If the functions of the corporation of public, importance are closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
6. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of the influence of the corporation being an instrumentality or agency of Government

Thus a registered society was held to be an authority for Article 12.

Weather Judiciary is a State?
Judiciary, though an organ of the state, is not specially mentioned in Article 12, unlike the executive and the legislature. Whether the judiciary comes under the definition of 'state' or not depends on the type of functions carried out by the Courts.

In the exercise of non-judicial functions such as administrative or legislative, the Courts fall within the definition of 'state' However, in the exercise of judicial functions, the Court cannot be brought within the definition of the state.

In the case of Naresh Sridhar Mirajkar v/s The State of Maharashtra, 1961:
During the trial of a suit for damage, the Judge ordered that the evidence of a witness should not be published in the newspapers. The Supreme Court rejected the plea that the order infringed the fundamental rights of a press reporter under Article 19 (1) (a). The Court observed that, as a judicial decision purports to decide the controversy between the parties before the Court and nothing more, a judicial verdict pronounced by a Court concerning a matter brought before it for its decision would not affect the rights of the citizen under Article 19 (1).

Therefore, the judiciary for discharge of its judicial functions cannot come under the definitions of 'state' and is not amenable to the writ.

Further, in A.R. Antulay v/s R.S. Naik, 1986 - The Supreme Court held that:
There is a right to a speedy trial of the case pending against him. But there can be no time limit within which a trial must be completed. It is thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude.

In this case, Supreme Court has observed with Article 12 that however wide and plenary the language of the article, the direction given by the court should not be inconsistent with, repugnant to, or in violation of the specific provisions of any statute.

R.S. Nayak v/s A.R. Antulay, 1984:
In that case, the Court has held transferred a case pending against Actually in a special court under the prevention of Corporation Act for trial to the Bombay High Court. The order was made in1984. This direction was now challenged after four years before the Supreme Court on the ground of "non-constitution rights of the citizen."

The court now took the view that it was proper for it to act ex debito justitiae in favour of the appellant whose fundamental rights have been infringed. The Court had given direction in the earlier case without observing the principle of audi alteram partern. This had deprived the appellant of a right of appeal to the High Court and thus he was prejudiced. The said direction had deprived had also violated the fundamental rights of the appellant guaranteed to him by Articles 14 and 21.

The Supreme Court also ruled that the direction given by it in 1984 was violative of the limits of the court's jurisdiction since the Court could not confer jurisdiction on High Court which by relevant law was exclusively vested in the Special Judge and the decision was given per incuriam. The Court now recalled the direction given by it in 1984 and directed that the corruption case against Anutulay be tried by the Special Judge appointed under the Prevention of Corruption Act.

Conclusion
Thus, while considering the nature of statutory and non-statutory bodies, it is seen whether:

1. It is functioning commercial or non-commercial
2. Whether it is an instrumentality of Government
3. Agency of Government
4. Aided and financed by the Government
5. Control by the Government

The word 'State' under Article 12 has been interpreted by the Supreme Court as per the changing times. It has gained wider meaning which ensures that Part III can be applied to a larger extent. We hope that it would continue to the extent of its width in the coming time.

References:

• The Constitution of India Bare Act
• The Constitution of India by Auther Pathan
• https://www.legalserviceindia.com/article/l271-Article-12.html
• https://byjus.com/free-ias-prep/article-12-indian-constitution
• https://en.wikipedia.org/wiki/Fundamental_rights_in_India
• https://indiankanoon.org/doc/609139/
• https://blog.ipleaders.in/judiciary-state-article-12

Written By: Advocate Aashish Chimnani (B.B.A LL.B). Follow us on Instagram @legal.lexis.