Definition of State under Article 12 | Constitution of India

Article 12 of the Indian Constitution defines the term “State” for the purpose of enforcing Fundamental Rights against authorities that exercise power.

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 definition is not exhaustive but inclusive, which means that apart from those organs or bodies which have been enumerated, others may also be covered by the expression ‘State’. Art. 12, thus, is an interpretative article. The expression ‘other authorities’ has been interpreted by the courts, as it has not been defined in the Constitution or in any statute. Generally, a liberal or extended interpretation has been adopted by the courts.

Note: - This extended interpretation of the term ‘State’ is limited in its application only to Part III (Fundamental Rights) and Part IV (Directive Principles).

Scope of Article 12

The scope of the term “State” is deliberately broad and includes four main categories:

1. The Government and Parliament of India – Includes the Union Executive (President, Prime Minister, Council of Ministers) and the Legislature (Lok Sabha and Rajya Sabha).
2. The Government and Legislature of each State – Includes state-level executive branches and legislative assemblies of councils. All departments and authorities under state governments are covered, including Union Territories, ensuring rights protection at regional levels.
3. Local Authorities - The expression as defined in Sec. 3(31) of the General Clauses Act refers to authorities like Municipalities, District Boards, Panchayats, etc. These authorities manage local governance and public services and their actions are subject to Fundamental Rights enforcement under Article 12. All local self-governing bodies are considered to be Local Authority.
4. Other Authorities – This term is not explicitly defined but the courts have adopted a liberal interpretation with respect to it. It refers to any entity, whether statutory or non-statutory, that acts as an agency or instrumentality of the government. For eg.: LIC, ONGC, etc.

Note: - The term ‘Government’ includes a Department of Government or any institution under the control of a Government Department. For e.g. the I.T. or Excise Department; the Forest Research Institute, Dehradun; etc.

According to Webster’s dictionary, ‘authority’ means a person or body exercising power or command. In the context of Art. 12, ‘authority’ means the power to make laws, orders, regulations, bye-laws, etc., which have the force of law and power to enforce those laws. For instance, the bye-laws made by a Municipal Committee.

Relevant Case Laws

1. University of Madras v. Shantha Bai (1954) – In this case, the court held that the term “other authorities” mentioned in Art. 12 could only indicate authorities of a like nature, i.e., ejusdem generis. To go by this interpretation, it could only mean authorities exercising governmental control or sovereign functions. It can’t include persons, natural or juristic. It was noted that “Other Authority” should derive its colour from the preceding three authorities under Art. 12; University was held not be an authority, since it doesn’t have a governmental or sovereign nature.
2. Ujjamm Bai v. State of U.P. (1962) – In this case, it was held that ejusdem generis rule could not be resorted to in interpreting this expression, as there is no common genus running through these named bodies (in Art. 12), nor can these bodies be so placed in one single category on any rational basis.
3. Rajasthan Electricity Board v. Mohan Lal (1967) – In this case, the Supreme Court held that the expression “Other Authorities” is wide enough to 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 function. Thus, Rajasthan Electricity Board was held to be an “other authority”. These bodies have power. to make bye-laws, regulations, etc. for regulating conditions of services of their employees. The employees are entitled to claim protection of Arts. 14 and 16 against these bodies.
4. Sukhdev v. Bhagatram (1975) – In this case, it was held that Oil and Natural Gas Corporation (ONGC), Life Insurance Commission (LIC), and Industrial Finance Corporation (IFC), all comes under the definition of the term “Sate” under Art. 12; because all these three statutory corporations have power to make rules and regulations for regulating conditions of service of their employees and such rules and regulations have the force of law.

In a welfare state, a govt. has to perform manifold functions for which it has to employ various agencies or instrumentalities. Keeping in mind the above fact, the Supreme Court has given a broad and liberal interpretation to the expression “other authorities” under Art. 12.

5. R.D. Shetty v. International Airport Authority of India (1979) – The main question in this case was whether International Airport Authority of India (IAA) is a State? The Court noted that IAA has been formulated under Airport Authority Act of 1971; which is a parliamentary act. The Court observed that the Central Govt. has numerous powers to be exercised over IAA, such as appointment of chairman and other members; the entire capital amount was invested by the Central Govt. for the establishment of IAA. It was also empowered to transfer the management of various airports. The court held that Airport Authority will be considered as State under “Other Authorities” of Art. 12. The court laid down the following five tests for determining whether a body is an agency or instrumentality of government:

1. Existence of deep and pervasive State control (e.g. appointment and removal of members of a society, rules made by society require prior approval of government).
2. Functional character being governmental in essence i.e. if the functions of corporation are of public importance.
3. Financial resources of the State are the chief funding source i.e. if the entire share capital of corporation is held by Government.
4. If a department of government is transferred to a corporation.
5. Whether the corporation enjoys monopoly status which is State conferred or State protected.

However, the court said that these tests are not conclusive but illustrative only, and will have to be used with care and caution and should not be stretched so far as to bring in every autonomous body, which has some nexus with the Government, within the sweep of the expression “other authorities.” The Supreme Court subsequently elaborated on and adapted these tests for government companies in the Som Prakash v. Union of India case (1981).

6. Som Prakash v. Union of India (1981) – In this case, the court held that Bharat Petroleum, which was incorporated under the Companies Act, is also an instrumentality of the State. Thus, Bharat Petroleum will come under the purview of “Other Authorities” of Art. 12.
7. Ajay Hasia v. Khalid Mujib (1981) – In this case, the court noted that ‘Determining Test’ is not whether a body was formulated by a statute or not; it is whether a body is acting as an agent or instrumentality of the State. If yes, it will under the category of ‘Other Authority’ under Art. 12. It was held that the societies registered under the Societies Registration Act, 1898, is an agency or instrumentality of the State and therefore it is covered under the definition of State under Art. 12.
8. Zee Telefilms v. Union of India (2005) – In this case, the question involved was whether the Board of Cricket for Control in India was ‘State’ within the meaning of Article 12. The Board was not created by any statute, nor was part of the share capital held by the Government. There was practically no financial assistance given to the Board by the Government and even then, the Board did enjoy a monopoly status in the field of cricket. The control, if any, was only regulatory in nature is applicable to other similar bodies. All functions of the Board were not public functions nor were they closely related to governmental functions. The Board was not created by transfer of a Government owned Corporation and was an autonomous body. The Board was not financially, functionally or administratively dominated by or under the control of Government so as to bring it within the expression ‘State’ in Article 12. The Court held that BCCI is not ‘State’ as it lacks deep government control, though it performs public functions.
9. Union of India v. R.C. Jain (1981) – The Court laid down criteria to determine local authorities, including legal status, autonomy and public function.
10. Rupa Ashok Hurra v. Ashok Hurra (2002) – The Supreme Court ruled that while performing judicial functions, judiciary is not State; and such decisions cannot violate Fundamental Rights.
11. Sanjaya Bahel v. Union of India (2019): The Delhi High Court clarified that international organizations like the United Nations are not State under Article 12 and cannot be challenged under constitutional remedies.

Whether Judiciary comes under the definition of State?

In India, the judiciary is not specifically mentioned in Art. 12. The judicial view is that the judgments of courts cannot be challenged on the ground that they contravene fundamental rights.

In Naresh v State of Maharashtra (1967), it was held that even if a court is considered to be State, a writ under Art. 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. What the judicial decision purports to do is to decide the controversy between the parties and nothing more. The court said that the judiciary while exercising its rule-making power under Art. 145 would be covered by the expression ‘State’ within the meaning of Art. 12; but while performing its judicial functions, it is not so included.

In A.R. Antulay v R.S. Nayak (1988), it was held that the court could not pass an order or issue a direction which would violate fundamental rights, thus, it can be said that the expression ‘State’ includes judiciary also. It was submitted that the judiciary, though not expressly mentioned in Art. 12, it should be included so, since courts are set up by statute and exercise power conferred by law. It is suggested that discrimination may be brought about... even (by) judiciary. The courts, like any other organ of the State, are limited by the mandatory provisions of the Constitution.

In Rupa Ashok Hurra v Ashok Hurra (2002), the Apex Court has re-affirmed and ruled that no judicial proceeding could be said to violate any of the fundamental rights. It was said to be settled position of law that the superior courts of justice did not fall within the ambit of ‘State’ or ‘other authorities’ under Art. 12.

Authorities/Bodies falling under the definition of ‘State’

The following have been held to be ‘State’:

1. Religious Endowment Board e.g. Cochin Devasom Board (P.B.M.Namboodripad v. C.D. Board AIR 1956 SC 19).
2. Rajasthan Electricity Board (Electricity Board, Rajasthan v. Mohan Lal AIR 1967 SC 1857).
3. Regional Engineering College established by a Society registered under a State Act (Ajay Hasia v. Khalid Mujib AIR 1981 SC 487).
4. FCI - Food Corporation of India (State of Punjab v. Raja Ram AIR 1981 SC 1694)
5. International Airport Authority (R.D. Shetty v. International Airport Authority of India AIR 1979 SC 1628).
6. Industrial Finance Corporations (Sukhdev Singh v. Bhagatram AIR 1975 SC 1331); Gujarat State Financial Corporation (Gujarat State Financial Corpn. V. M/s Lotus Hotel AIR 1983 SC 848).
7. ONGC - Oil and Natural Gas Commission (Sukhdev Singh v. Bhagatram AIR 1975 SC 1331; K.C. Joshi v. UOI AIR 1985 SC 1046); Indian Oil Corporation (Mahabir Auto Stores v. Indian Oil Corpn. AIR 1990 SC 1031).
8. ICAR - Indian Council of Agricultural Research [S.M. Ilyas v. ICAR (1993) 1 SCC 182]; IVRI - Indian Veterinary Research Institute, an affiliate of ICAR (P.K. Ramachandra lyer v. UOI AIR 1984 SC 541).
9. Nationalized Banks [Bank of India v. O.P. Swarankar (2003) 2 SCC 721]; Regional Rural Banks (Chairman, Prathama Bank, Moradabad v. Vijay Kumar AIR 1989 SC 1977).
10. U.P. Rajya Karmachari Kalyan Nigam [Virendra Kumar Srivastava v. U.P. Rajya Karmchari Kalyan Nigam (2005) 1 SCC 149].
11. ISI- Indian Statistical Institute (B.S. Minhas v. Indian Statistical Institute AIR 1984 SC 363).
12. CSIR -Council of Scientific and Industrial Research [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 1].
13. SAIL - Steel Authority of India Limited (Steel Authority of India Ltd. v. Shri Ambica Mills AIR 1998 SC 418).
14. LIC - Life Insurance Corporation (Sukhdev Singh v. Bhagatram AIR 1975 SC 1331).
15. Bharat Petroleum Corporation (Som Prakash v. Union of India AIR 1981 SC 212).
16. Universities (Umesh Chandra v. V.N. Singh AIR 1968 Pat. 3): Private educational institutions (if they fulfil the tests laid down in Ajay Hasia case)
17. BITCO - Bihar Industrial and Technical Consultancy Organisation Ltd. (Ashok Kumar Singh v. BITCO Ltd. (1998).
18. Mysore Paper Mills Ltd. [Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers' Association (2002) 2 SCC 167].
19. Children's Aid Society, Bombay (Sheela Barse v. Secretary. Children Aid Society AIR 1987 SC 656).
20. DDA - Delhi Development Authority (DDA v. Joint Action Committee, Allottee of SFS Flats AIR 2008 SC 1343).
21. Delhi Transport Corporation (D.T.C. v. Mazdoor Congress AIR 1991 SC 101); Mysore State Road Transport Corporation (Mysore S. R.T.C. v. Devrai Urs AIR 1975 SC 1331).
22. A non-governmental company like Shriram Food and Fertilizers Ltd. (M.C. Mehta v. Union of India (1987) 1SCC 395].
23. NAFED - National Agricultural Co-operative Federation of India (A H. Ahamed & Co. v. UOI 1982).
24. City & Industrial Development Corporation, Maharashtra (Star Enterprises v. City & Industrial Dev. Corpn., Maharashtra (1990) 3 SCC 280).
25. Hyderabad Stock Exchange.
26. Bombay Port Trust.
27. Council for Indian School Certificate Examinations
28. IDBI- Industrial and Development Bank of India.
29. United Indian Insurance Co.
30. Export Credit Guarantee Corporation of India Ltd.
31. Indian Banks Association.

The following have not been held to be ‘State’:

1. Superior courts of justice [Naresh v. State of Maharashtra AIR 1967 SC 1; Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771].
2. NCERT - National Council of Educational Research and Training (Chandra Mohan Khanna v. NCERT AIR 1992 SC 76).
3. A private medical/engineering college even if recognised and affiliated to a University [Unni Krishnan v. State of A.P. (1993) 1 SCC 645].
4. Institute of Constitutional and Parliamentary Studies [Tekraj Vasandi v. Union of India (1988) 1 SCC 236].
5. Indian Institute of Bankers (Laxman Nath Das v. Dy. Secy. (Exam) Indian Institute of Bankers AIR 1995 Ori. 277)
6. BCCI - Board of Control for Cricket in India [Zee Telefilms Ltd. v. UOI (2005) 4 SCC 649].
7. National Co-operative Consumers Federation (J.S. Arneja v. National Co-op. Consumers Federation of India Ltd. AIR 1995 Del 44).
8. ICRISAT - International Crops Research Institute (G. Bassi Reddy v. International Crops Research Institute AIR 2003 SC 1764).
9. A Cooperative Society [Zoroastrian Cooperative Housing Society v. District Registrar (2005) 5 SCC 632). Such a society is nothing but a body created in accordance with and governed by the provisions of the Co-operative Societies Act. Certain number of persons forms a society with certain aims and objects. It is subjected to certain rules, regulations, etc. Such a society is not created by the provisions of the Act itself, nor the State. exercise any control over such a society.
10. A Co-operative Banks, e.g. the Punjab State Co-operative Bank, is not a ‘State’ (Satish Kumar v. Punjab State Co-operative Bank Ltd. AIR 1981 P&H 282).