INTRODUCTION

Article 12 of the Indian Constitution defines “State” as:

 “In this part, unless the context otherwise requires, “the State” includes the Government and the Parliament of India, the Government and the Legislature of each of the States, all local authorities and other authorities within the territory of India or under the control of the Government of India.”[1]

Article 12 of the Constituion has four components:

1. The Government and the Parliament of India
2. The Government and the Legislature of each of the State
3. Local Authorities within the territory of India
4. Other Authorities

The definition given in Art.12 is only for the purpose of application of the provision contained in Part III. Thus, even though a body of persons may not constitute “State” within the instant definition, a writ under Art.226 can lie against it on non-constitutional grounds or on grounds of contravention of some provision of the Constitution outside the Part III, for example where such body has a public duty to perform or where it acts are supported by the State or public officials.

Parliament: The President of India, the Lok Sabha, the lower house of parliament, and the Rajya Sabha, the upper house of parliament, make up the Indian parliament.

Executive: It is the organ in charge of carrying out the legislature’s laws as well as the government’s policies. The rise of the welfare state has greatly expanded the state’s and, in reality, the executive’s functions. In common parlance, the executive is associated with the government. There has been a change in modern times.

Legislature: The legislature is the organ of government that enacts the government’s laws. It is the agency in charge of formulating the state’s will and endowing it with legal authority and force. Simply put, the legislature is the branch of government that creates laws. In every democratic state, the legislature has a unique and important role. It is the assembly of the people’s elected representatives, and it represents national public opinion and power.

Government: The legislative branch, the administrative branch, the executive branch, the law enforcement branch, and the judicial branch, as well as society’s organizations. The legislative branch is made up of the Lok Sabha (lower house) and Rajya Sabha (upper house). The Indian President is the head of state, and he or she wields power either directly or through subordinate officers. The Judiciary is made up of the Supreme Court, High Courts, and numerous civil, criminal, and family courts at the district level.

State Legislature: It is the legislative body at the state level. The state legislative assembly and the state legislative council make up this body.

JUDICIAL INTERPRETATION – LOCAL AUTHORITIES

It is necessary to define Authorities before understanding what a local authority is. Webster’s Dictionary defines it as follows: Authority means a person or body excersing power to command. The expression “Local Authorities” is defined in The General Clauses Act, 1897[2]and it refers to authorities like municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the government which are in the control or manag,ent of a municipal or local fund. The words “under the control of the Govt. of India” is meant to bring into the definition not only every authority within the territory of India, but also those functioning outside. In the case Ajit Singh v. State of Punjab[3], it was held that within the meaning of the term local authority, village panchayat is also included.

In Union of India v R.C. Jain[4], the Supreme Court noted the distinguishing characteristics and characteristics of an authority that qualifies as a “local authority.” These are, in brief:

1. As cooperating bodies, the authorities must have their seperate legal existence. They must be legally independent agencies, not just government agencies.
2. They must operate in a defined area and are usually elected by the residents of that area, either directly or indirectly.
3. They must have a degree of autonomy, with the ability to decide for themselves on policy issues affecting the area they administer. Although the autonomy may not be complete and the degree of dependence may vary greatly, there must be some measure of autonomy.
4. They must be entrusted by statute with such governmental functions and duties as are typically entrusted to Municipal Bodies, such as those related to providing amenities to the locality’s residents, such as health and education services, water and sewerage, town planning and development, roads, markets and transportation, social welfare services, and so on. In general, they may be entrusted with civic duties and functions that would otherwise fall under the purview of the government.
5. Lastly, they must have the authority to levy taxes, rates, and fees in order to raise funds for the advancement of their activities and the completion of their projects. This may be in addition to funds provided by the government, which may have been obtained through borrowing or other means.

JUDICIAL INTERPRETATION – OTHER AUTHORITIES

Looking into one of the earliest judicial discussions on Art.12, in the case The University of Madras v. Shanta Bai[5], the question was whether the University of Madras was “other authority” within that Article. In the deciding that it was not, it was observed that the words “other authorities” could only indicate authorities of a like nature, i.e. ejusdem generis. The Latin phrase ejusdem generis means “of the same kind.” It is a legal term that refers to a rule for interpreting a statute’s language. When a generic description follows specific items, the more generic description is read to apply only to things belonging to the same group or class as the specific items, according to the ejusdem generis rule. It could only mean authorities performing governmental or sovereign functions in this sense. It cannot include natural or legal persons, such as universities, unless they are ‘maintained by the state.’

The Supreme Court rejected this restrictive interpretation of other authorities in the case Smt. Ujjam Bai v. State of Utter Pradesh[6], interpreting the words “other authorities” in Art.12 held:

“Again, Art.12 winds up the list of authorities falling within the definition by referring to ‘other authorities’ within the territory of Indian which cannot obviously be read as ejusdem generis with either the government or the legislatures or local authorities.”

In the case Rajasthan State Electricity Board v. Mohan Lal[7], the expression “other authorities” was modified to include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. But, Shah J, said that only those authorities which are invested with sovereign power that is power to make rules or regulations and to administer or enforce them to the detriment of citizens and other fall within the definition of “State” in Art.12.

In the case Sukhdev Singh v. Bagartram Sardar Singh Raghuvanshi[8], it was held that “Institutions engaged in matters of high public interest or public functions are by virtue of the nature of the functions performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government functions.”

In the case Ramanna D. Shetty v. International Airport Authority[9], five criterions were evolved to determine whether a corporation is an instrumentality or agency of the State or not. They are:

1. The amount of financial assistance provided by the government and the size of that assistance. any other form of assistance, whether ordinary or exceptional.
2. The nature and scope of the state’s control over the corporation’s management and policies.
3. The corporation’s monopoly status and functions, whether public or closely related to governmental functions, were conferred or protected by the state.
4. Monopoly status was conferred or protected by the government.
5. Whether public or closely related to governmental functions, the corporation’s functions are carried out.

It was in the case Ajay Hasia v. Khalid Mujib Sehravardi[10], these criteria were finally summarized and the test was finally confirmed in Som Prakash Rekhi v. Union of India[11]to include the following:

1. One thing is clear: if the government owns the entire share capital of a corporation, that goes a long way toward indicating that the corporation is a government instrumentality or agency.
2. Deep and pervasive State control may provide an indication that the Corporation is a State agency or instrumentality.
3. It could also be a factor, whether the corporation has monopoly status that is granted by the government or protected by the government.
4. It would be a relevant factor in classifying the corporation as a government instrumentality or agency if the corporation’s functions are of public importance and closely related to governmental functions.
5. In particular, the transfer of a government department to a corporation would be a strong factor supporting the inference that the corporation is a government instrumentality or agency.

It was held in the case Masthan Sahib v. Chief Commissioner[12]that the territory of India for the purposes of Art. 12 means the territory of India as defined in Art.1(3).

The control of the government under Article 12 does not necessarily imply that the body is under the government’s complete control. It simply means that the government must have some level of control over how the body functions. Just because something is a statutory body doesn’t make it a “state” body. Both statutory and non-statutory bodies can be considered a “State” if they receive financial resources from the government and are subject to extensive government control.

Because the test established in the case of Ajay Hasia is not rigid, anybody that falls within it must be considered a state within the meaning of Article 12. “Whether, in light of the cumulative facts as established, the body is financially, functionally, and administratively dominated by or under the control of Government,” was said in the case. This type of control must be specific to the body in question and pervasive.

WHETHER STATE INCLUDES JUDICIARY ?

The term “judiciary” is not defined in Article 12 of the Constitution. This gives judicial authorities the authority to make decisions that may be in violation of an individual’s fundamental rights. If it were added to the definition of ‘State,’ then it would be a legal obligation not to violate citizens’ fundamental rights, as stated in the article. As a result, the courts’ decisions cannot be challenged on the basis that they violate a person’s fundamental rights. On the other hand, orders issued by courts in their administrative capacity (including the Supreme Court) have been routinely challenged as being in violation of fundamental rights.

The distinction between the judicial and non-judicial functions of the courts provides the answer to this question. The courts are included in the definition of the ‘State’ when they perform non-judicial functions. When the courts carry out their judicial functions, they are not considered to be part of the ‘State.’ As a result, it should be noted that a court’s decision cannot be challenged as a violation of fundamental rights. However, if facts support the claim, an administrative decision or judicial rule can be challenged as violating fundamental rights. This is due to the courts’ distinction between judicial and non-judicial functions.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra[13], it was held that a judicial decision issued by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication cannot affect citizens’ fundamental rights because the judicial decision’s sole purpose is to resolve the dispute between the parties before the court. As a result, under Article 13, such a judicial decision cannot be challenged.

CONCLUSION

The Indian Constitution not only grants citizens fundamental rights, but also makes it the state’s responsibility to ensure that those rights are respected. Through its interpretations, the court has expanded the definition of “state” to include a variety of statutory and non-statutory bodies. The need to determine what constitutes a state is to assign the party who will be responsible for carrying out such a right. Not only that, but the definition of state under Article 12 contains several words with ambiguous meanings, such as local authorities, government control, other authorities, and so on, and as seen in the preceding sections, the courts have described the scope of the article by establishing a test and debating the meaning of the terms.

[1] The Constitution of India [India], 26 January 1950, available at: https://www.refworld.org/docid/3ae6b5e20.html [accessed 30 March 2021]

[2] Section 3(31) in General Clauses Act, 1897, Bare Act, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2010.

[3] 1967 AIR 856

[4] 1981 AIR 951

[5] AIR 1954 Mad 67

[6] 1963 SCR (1) 778

[7] 1967 SCR (3) 377

[8] (1975) 1 SCC 421

[9] 1979 SCR (3)1014

[10] 1981 SCR (2) 79

[11] 1981 SCR (2) 111

[12] 1962 AIR 797

[13] AIR 1967 SC 1