ARTICLE 12 OF THE CONSTITUTION by Rishabh Singh at LexCliq

Definition of word ‘State’ as used in the context of Fundamental Rights – Article 12 of the Constitution defines the term ‘State’. It lays down. “In this part unless the context otherwise requires, the state includes the government and the parliament of India and the government and the legislature of each of the state and all local or Other authorities within the Territory of India or under the control of the government of India.”
Thus the term ‘State’ include :-

  1. The Government of India, i.e., the Executive of the Union.
  2. The Parliame6of India, i.e., the Legislature of the Union.
  3. The Government of each State, i.e., Executive of States.
  4. The Legislature of each State, i.e., Legislature of States.
  5. All Local or other authorities within the territory of India.
  6. All Local or other authorities under the control of the Government of India.
    Thus, the term ‘State’ includes Executive and the Legislature organs of the Union and the states besides the local or other authorities within the territory of India or under the control of Government of India.

AUTHORITIES – ‘Authority’ means a person, or body exercising power to its command. (Webster’s dictionary) . Thus, in the context of Article 12, the word ‘authority’ means the person or body, having the power to make laws, orders, regulations, Bye-laws, notifications etc. Which have the force of law and have the power to enforce those laws.

LOCAL AUTHORITY – According to sub section (1) of section 3 of the General Clauses Act, 1897, local authority means a municipal committee, district Board, body of commissioners, or other authority legally entitled to or entrusted by the government within the control or management of a municipal or local Fund.

OTHER AUTHORITIES – There are various judgement of who define the term ‘other authorities’ but exact definition is not decided yet. But In case (University of Madras v. Santa Bai, AIR 1954 MAD. 67 ) It was of the opinion of the madras high court that the term ‘other authorities’ under Article 12 should be construed ejusdem generis with the government or legislature and so construed it can only mean authorities exercising government functions.
This view of the Madras Hugh Court has been rejected by the supreme Court in Ujjambai v. State of U.P., AIR 1962 SC 1621, the supreme Court held that the doctrine of ejusdem generis can not be applied in the interpretation of the term “other authorities”. In Electricity Board v. Mohan lal, AIR 1967 SC 1857, the supreme Court has observed that the term ‘other authorities’ created by the Constitution or Statute on whom powers are conferred by law, whether or not they are engaged in performing governmental functions.
In later decisions, the Supreme Court gave a wider and more liberal interpretation of the expression ‘other authorities’.

In Ajay Hasia v. khalid Mujib , AIR 1981 SC 487, Bhagwati J. Discussed in detail various factors relevant for determining whether a body is an instrumentality or agency of the state. These factors are:-

  • 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 authority of the Government.
  • When the financial assistance of the state is so much as to meet almost entire expenditure of the Corporation being impregnated with Government character.
  • Where the corporation enjoys monopoly status which is state conferred or state protected.
  • Existence of deep and pervasive state control may afford an indication that the corporation is a state agency or instrumentality.
  • If the functions of a corporation are of public importance, it would be relevant factor in classifying a corporation as an agency of Government.
  • If a department of government is transferred to Corporation.

In Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677 , the Court noted that the Union of India has been exercising certain control over activities of the Board in regard to organizing cricket matches and travel of India team abroad as also granting of permission to allow the foreign teams to come in India in the absence of any authorization, if a private body chooses to discharge any functions and duty which amount to a public duties of state functions which is not prohibited by law then it may be considered to be N instrumentality of the State.

In S. C. Chandra v. State of Jharkhand, AIR 2007 SC 3021, the Supreme Court held that BCCL was not an Instrumentality of the state as per section 617 of the Companies Act as it’s domain function was to raise coal and Imparting education was not it’s dominant function.

In State of U.P v. Radhey Shyam Rai, (2009) 5 SCC 577, the Supreme Court held a company enjoying the monopoly of carrying on a business under an Act of legislature has the “happenings” of “State” and is an “authority” Under Article 12 of the Constitution of India.

In Biman Kumar Bose v. United India Insurance Co. Ltd. (2001) 6 SCC 477 , the Supreme Court held that once a body is characterised as an authority under Article 12 , several significant incident invariably follow –

  • The body becomes subject to the discipline of the Fundamental Rights which means that it’s actions and decision can be challenged with reference to Fundamental Rights;
  • The body also becomes subject to the discipline of Administrative law.
  • The body becomes subject to the writ jurisdiction of the supreme Court under Article 32 and that of the High courts under Article 226.

In S. S. Rana. v. Registrar cooperative societies, (2006) 11 SCC 634, the Cochin Refineries Ltd. Incorporated under the Companies Act was held to be not an ‘authority’ because only 53% of its share capital had been subscribed by the Central Government, 26% share was held by a private foreign company which also nominated two directors on the Board of the Directors, Government control over the company was not large, Government’s Financial assistance was not unusual.


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