The Concept of State: Article 12 of The Indian Constitution

by Adv. Ritvik Joshi, Bombay High Court.


INTRODUCTION

The concept of ‘state’ is a primary concern of political science and a pivotal feature in constitutional & administrative law. The concept of ‘state’ is very old and dynamic. The term ‘state’ was used for the first time in political science literature by Niccolo Machiavelli (1469-1527). The modern state is a powerful entity because of its diversified scope and nature of activities.


Under the Indian Constitution, the ‘state’ has been defined under Article 12 in part III of the constitution. It is important to note that Part III of the constitution commences with the definition of the ‘state’. The fundamental rights enumerated under part III are enforceable only against the state and its officials. The entire object of Part III is to curtail the arbitrary invasion of the state and therefore it is very important to define ‘state’.


Article 12 defines the authorities and instrumentalities which shall be considered as a state for the purpose of Part III of the constitution. From the definition, it is quite evident that the list is inclusive & therefore, the list also includes the authorities and instrumentalities which are not mentioned in the article and satisfy the characteristics of the state.


Article 12 – 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.


THE CONCEPT OF STATE UNDER ARTICLE 12

The state includes,

  1. the government and Parliament of India ,

  2. the government and legislature of all the states ,

  3. the local authorities

  4. & other authorities within the territory of India or under the control of the government of India.

DISCUSSION DURING CONSTITUTIONAL ASSEMBLY DEBATES

Article 12 was discussed during Constitutional Assembly Debates on 25th November, 1948. The scope of the term state was widely discussed. Members of the assembly were concerned about the vagueness of the term ‘other authorities’ and they suspected that it would include every agency and person working for the state.


Later , Dr. B. R. Ambedkar clarified, The object of the Fundamental Rights is two-fold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority – I shall presently explain what the word “authority” means – upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the Fundamental Rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and taluk boards, in fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make by-laws. [1]

The Assembly adopted the Article with just one amendment: ‘or under the government of India’ was added to the end of the Article to include those territories which were not a part of India but nonetheless under the control of the Indian government.


CONCEPT OF THE TERM ‘STATE’ AND ITS DEVELOPMENT

The first two are self-explanatory as it includes the Executive and the Legislative organs of the Centre and the States. The term local authorities refers to and includes, local self-governing bodies like the Municipal Corporations, the Municipalities, the Panchayats, the District Boards and the Mining Settlement Board. The term local authority has been defined under section 3 (31) of the general clauses act, 1897. The Panchayats, the municipalities and the co-operative societies as defined in Parts IX, IXA & IXB respectively are also included in this category.

The term ‘other authorities’ include the instrumentalities and the authorities which haven’t been directly mentioned in the Article.


RESTRICTIVE APPROACH VS THE LIBERAL APPROACH

The High Courts had taken a restrictive approach to interpret the term ‘other authorities’ to the principle of ejusdem generis and therefore only included the authorities and the instrumentalities working for the Executive and the Legislature. The scope of other authorities therefore was restricted to authorities exercising governmental or sovereign functions[2].


The Honorable Supreme Court rejected this approach in Electricity Board Rajasthan SEB vs Mohan Lal [3]

The Court held that the term other authorities will include the authorities and instrumentalities formed under the constitution or any statute upon whom powers are conferred by law. The court held that it was not necessary that the authority should be engaged in performing governmental or sovereign functions. It held that the doctrine of ejusdem generis was not applicable to interpret the term other authorities as there is no distinct genus or category running through the bodies already mentioned.


In Sukhdev Singh vs Bhagatram Sardar Singh Raghuvanshi[4], the court held that the corporations ONGC, IFC & LIC were a creation of statutes and therefore had the statutory power to make binding rules & regulations and were subject to pervasive government control and therefore are a state within the meaning of article 12.


In Ramana Dayaram Shetty vs International Airport Authority[5], Bhagwati J, speaking for the court, pointed out that the corporations acting as instrumentalities or agencies of the government would obviously be subject to the same limitations in the field of constitutional and administrative law as the government itself, though in the eyes of the law they would be distinct and independent legal entities. The officers, instrumentalities and authorities working on behalf of the government are subject to constitutional and public law limitations.


The factors relevant for determining whether the body is an instrumentality or an agency of the state were summarised in Ajay Hasia v Khalid Mujib Sehrawadi[6]

  1. If the entire share capital is held by the government, it would go a long way towards indicating that the corporation is an instrumentality or an agency of the state,

  2. If the financial assistance of the government is so much as to meet almost the entire expenditure of the corporations, it would afford some indication of the corporation being impregnated with Governmental character,

  3. Whether the corporation enjoys monopoly status which is state conferred or state protected,

  4. 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 corporations are of public importance and closely related to government functions, it would be a relevant factor in classifying the corporation as an instrumentality or an agency of the government,

  6. If a department is transferred to a corporation, it would be a strong factor supportive of the inference that the corporation is an instrumentality or an agency of the state. [7]

If on consideration of these factors, it is found that the corporation is an instrumentality or an agency of the government, it would be an authority and, therefore, a state within the meaning of article 12. However, these tests are not conclusive and should not be stretched to bring every autonomous body with some nexus with the government under the ambit of Article 12.


In Pradeep Kumar Biswas vs Indian Institute Of Chemical Biology [8] the Supreme Court restated the law in the following words:

The picture that ultimately emerges is that the tests formulated in Ajay Hasia v. Khalid Mujib Sehravardi, are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. 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.


The Supreme Court in Board of Control for Cricket in India vs Cricket Association of Bihar[9] held that the BCCI is amenable to writ jurisdiction of Article 226 but is not a state under the ambit of Article 12 because the BCCI is not created by the statute, nor any part of its share capital is held by the government, the BCCI doesn’t receive any financial assistance from the government and it is not created by transfer of a government-owned corporation.


AUTHORITIES SITUATED OUTSIDE INDIA

In Ramamurthy vs Chief Commissioner[10], Article 12 shall apply to the territories outside India, administered by the Government of India under the Foreign Jurisdiction Act, 1947, provided they are under the control of the Government of India (as ordinarily judicial and quasi-judicial authorities are not under the control of the Government of India). Therefore, where the control of the Government of India extends to an authority outside India, the Superior Courts in India can exercise their ‘’constitutional jurisdiction‘’ over the acts of such administrative authorities by passing suitable orders.


JUDICIARY AS A ‘STATE’

The Judiciary, even though an organ of the State, is not specifically mentioned in Article 12 like the Executive and the Legislature. However, it is wrong to say that the Judiciary is not included in the concept of ‘a state’. The Judiciary’s non-judicial functions such as legislative and administrative fall within the term ‘state’.

The courts while exercising statutory rule-making powers come under the term state and an appropriate remedy can be availed under Article 32 or Article 226 – Prem Chand Garg vs Excise Commr[11]


In Khoday Distilleries Ltd. vs Registrar General, Supreme Court of India , the court held that against a final order of the court under Article 136 which has also been reviewed under Article 137, a petition under Article 32 is not maintainable.


In Rupa Ashok Hurra vs Ashok Hurra[12] a constitutional bench of the court unanimously held that no final order of the court can be challenged under Article 32. The task of the courts of justice as the custodians of the Constitution is to protect the fundamental rights of the citizens from State transgressions. It was held that the courts do not come under the ambit of the term state under Article 12.


The foregoing propositions apply only to courts i.e. the courts which have the power to determine their own jurisdiction and not to tribunals or other similar bodies which do not have such a power. Therefore, determinations of tribunals or other similar bodies in violation of the fundamental rights can be challenged in writ proceedings on the ground that they are without jurisdictions. But even their determinations cannot be challenged in writ proceedings unless they are without jurisdictions.[13]


Naresh Shridhar Mirajkar v. State of Maharashtra,[14] The Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in a matter brought before him does not violate fundamental rights of the parties to the case.


LAW COMMISSION & REPORTS OF NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION

The 145th Law Commission Report, 1992 under the heading “Article 12 of the Constitution and Public Sector Undertakings” dealt with the question of whether Public Sector Undertakings fall within the ambit of Article 12 of the Constitution and whether their removal from the ambit of Article 12 through an amendment would help reduce litigation. The Commission examined the aspects of the topic by studying various Supreme Court Cases in the background of the 126th report of the Commission which dealt with litigation policy of the Government and Public Sector Undertaking. The Commission concluded that the amendment would not resolve the litigation of PSU’s . In the light of the Basic Structure Doctrine , the Commission had doubts whether an amendment would survive the constitutional test.


The National Commission to Review the Working of the Constitution was set up vide Government Resolution dated 22 February, 2000. The terms of reference stated that the Commission shall examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of an efficient, smooth and effective system of governance.

The Commission recommended that in article 12 of the Constitution, the following Explanation should be added:-

“Explanation – In this article, the expression “other authorities” shall include any person in relation to such of its functions which are of a public nature.”


CONCLUSION

The state is a resourceful and powerful entity. The fundamental rights under Part III are available against the state transgression to protect the individuals. The courts, through their judicial pronouncements have expanded the scope of ‘state’ under Article 12. However, the scope of ‘state’ under article 12 should be interpreted with caution considering the accelerated privatization and economic liberalization. While further interpreting ‘other authorities’ the balance between protecting fundamental rights and maintaining functional independence to survive the market vis-à-vis PSU’s should be maintained.

[Disclaimer-The views expressed in the article are personal views of the author]

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Adv. Ritvik joshi, Bombay High Court

Adv. Ritvik Joshi is a practicing Advocate at Bombay High Court, Mumbai. The author may be reached at- ritvikjoshi96@gmail.com





[1] Constituent Assembly Debates , Speech dated 25th November, 1948 by Dr. BR Ambedkar, Volume VII

[2] University of Madras vs Shantabai (AIR 1954 Mad 67)

[3] AIR 1967 SC 1857

[4] 1975 1 SCC 21

[5] 1979 3 SCC 489

[6] 1981 1 SCC 722.

[7] VN Shukla’s Constitution of India , Thirteenth Edition, pg 29.

[8] 2002 5 SCC 111

[9] 2015 3 SCC 251

[10] AIR 1963 SC 1464

[11] AIR 1963 SC 996

[12] 2002 4 SCC 388

[13] 1997 3 SCC 261

[14] AIR 1967 SC 1

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