Has the Indian judiciary provided an over-expansive definition of ‘State’ under Article 12?

Fundamental rights are known as the Magna Carta of the Indian Constitution. Article 12 introduces Part III of the Constitution, i.e. the chapter on Fundamental Rights that contains Article 12-35. Article 12 was originally introduced in the Draft of the Constitution as Article 7. Article 12 defines the term ‘State’, which is vital in understanding the application and administration of fundamental rights. Article 12, as defined in the Constitution of India, states that “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.”[1]

To summarise, the authorities mentioned in Article 12 fall under four broad categories- 1) the Government and Parliament of India, 2) Government and the Legislature of each of the States, 3) all local authorities and 4) other authorities within the territory of India or under the control of the Government of India. Therefore, all forms of legislative and executive wings of the Union and the States, are included in the ambit of Article 12.[2] “ “Local authority” means a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the government with the control or management of a municipal or local fund”, according to Section 3 (31) of the General Clauses Act, 1897.[3]

However, the Constitution of India provides a very minimalist definition of state under Article 12. The Constitution does not explain or define the term “other authorities”, which is crucial in order to understand and apply Article 12 correctly. Also, the definition of Article 12 given in the Constitution does not specifically address whether the “judiciary” falls under the ambit of “state” for the purpose of Article 12. Since there is a substantial amount of ambiguity around the constitutional definition of “state”, the interpretations and definitions provided by the Indian Courts must be relied upon to explore Article 12. This paper aims to analyse the different ways in which the Indian courts have interpreted and defined ‘state’ under Article 12 and determine whether the courts’ definition is over-expansive of the definition of ‘state’ under Article 12.

Firstly, let us consider the case of Electricity Board, Rajasthan SEB v. Mohan Lal [4], which has elaborated upon the interpretation of “other authorities”. Here, the Supreme Court rejected the proposition that “it would be reasonable to interpret ‘other authorities’ ejusdem generis with the government or legislature.” The Supreme Court held that in order to apply the rule of ejusdem generis, there must be a distinct common genus running through the named bodies. The Court did not find any common genus running through the bodies named under Article 12. Further, the court held that “other authorities” includes “all bodies created by a statute, and which have the power to carry out government and quasi-government functions.” It further declared that these statutory authorities need not necessarily be engaged in executing governmental or sovereign functions. The court also cited Articles 19 (1) (g), 298 and 46 to justify that “other authorities” would include “bodies created for the purpose of performing commercial activities or for promoting the educational and economic interests of the weaker sections of people.”[5]

Another case that helps in understanding the interpretation of “state” under Article 12 is Sukhdev Singh v. Bhagatram Sardar Singh[6]. Here, the issue was whether corporations that are created by statutes, fall under “other authorities” as per Article 12. In this case, the corporations were ONGC, LIC and IFC created by the statutes: Oil and Natural Gas Commission Act, 1959, Life Insurance Act, 1956 and Industrial Finance Act, 1959, respectively. The Supreme Court gave the reasoning that these corporations were created by statutes and these statutes confer the power to make rules and regulations on these corporations, therefore they were held to be “other authorities” under Article 12. The court found that- i) if the corporation has financial support of the state, ii) if the state has an unusual degree of control over the management and policies, iii) if the corporation discharges important public functions, then this corporation will be considered as an entity of the ‘state’ and will fall under the purview of Article 12.

The reasoning in the Sukhdev Singh[7] judgement was reiterated in the case of Ramana Dayaram Shetty v. The International Airport Authority of India[8], which held that “if the government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that government acting through the instrumentality or agency of corporations, should equally be subject to the same limitations.” The factors that indicate whether a corporation is acting as an instrumentality or agency of the government were distinctly summed up in the case of Ajay Hasia v. Khalid Mujib Sehravardi[9], as follows: i) if the entire share capital of the corporation is held by the government, ii) if the financial assistance of the state almost meets the entire expenditure of the corporation, iii) whether the corporation has a monopoly status which is conferred or protected by the State, iv) whether there exists a deep and pervasive State control over the corporation, v) if the corporation’s functions are of public importance or related to government functions, vi) if a government department is transferred to the corporation.

However, the case of Pradeep Kumar Biswas v India Institute of Chemical Biology [10], held that the tests devised in Ajay Hasia[11] are not a rigid set of rules that if a body ticks any of these boxes, they must fall under state under Article 12. These set of rules must be applied depending on whether the facts of the case indicate that the body is ‘financially, functionally and administratively’ controlled by the government. Additionally, there is no such rule that affirms that registered societies having ties with the government are always “state”. The definition of “state” is an ‘inclusive’ definition, and not ‘exhaustive’ with respect to Article 12. Therefore, the words ‘state’ and ‘authority’ under Article 12 are among “the great generalities of the Constitution” and their interpretation needs to be provided by the Courts from time to time.[12] The court in Zee Telefilms Ltd. v Union of India[13], stated that “the ‘State’ has different meanings in different contexts,” and “there cannot be same standard or yardstick for judging different bodies for the purpose of ascertaining whether it fulfils the requirements of law or not.” Here, the Supreme Court upheld the decision in Pradeep Kumar Biswas[14] and held that BCCI (Board of Control for Cricket in India), although a registered society, was not considered as ‘state’ under Article 12, because it was neither created by a statute, nor ‘financially, functionally and administratively’ controlled by the government.[15]

In my opinion, the definition of “state” under Article 12 provided by the Indian Courts is not over-expansive. The definition needs to include more entities in its purview in order to ensure better protection of the fundamental rights. Firstly, to understand the purpose of any law, we must take into consideration what the law-makers had in mind while formulating the law. In a Constituent Assembly debate, Dr. Ambedkar explained why Article 12 was placed in Part III, i.e. the Chapter on Fundamental Rights. He stated that “The object of the fundamental rights is twofold. First, every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority.” He further explained that the word ‘authority’ would include “every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws.” According to Dr. Ambedkar, it was “cumbersome” and “stupid” to list all the authorities every time someone had to refer to some authority. Therefore, he decided that it would be “wise” to have a “composite and comprehensive phrase” such as “the State” which comprised of all the authorities.[16]

Another question that needs to be addressed is whether the ‘judiciary’ is a part of “state” for the purpose of Article 12. Although the ‘judiciary’ is one of the three main organs of the State, it is not explicitly mentioned in Article 12, like the executive and the legislature.[17] The bench in Rupa Ashok Hurra v Ashok Hurra[18]held that a final order of the court cannot be challenged under Article 32. The bench also declared that courts that have the power to determine their own jurisdiction are not a part of “State” under Article 12.

However, in my opinion, the judiciary should be included as a part of the State for the purpose of Article 12. The judiciary being one of the main organs of the state, is a powerful authority that exercises important functions of the State. The entire purpose of fundamental rights is to protect the individual liberties of the citizens from any injustice by the State. The exclusion of the judiciary from Article 12 would be highly unjust as citizens would not have much of a legal recourse if a court breaches their fundamental rights. Therefore, there is a need for a constitutional amendment that enables Article 32 to be applicable to the judiciary as well.

The Constitution should be interpreted in such a manner that the governing power, wherever located, must be subjected to fundamental constitutional limitations.[19]The fundamental rights of the citizens must be protected as they are the main checks and balances required to prevent a democratic nation from turning into an oppressive, totalitarian one. Therefore, in order to safeguard these ‘checks and balances’, the ambit of “State” under Article 12 must be expanded.

A constitutional amendment to Article 12 is necessary, and it should incorporate the following changes: i) The judiciary should be explicitly included in the definition of Article 12. ii) The legislature should clearly demarcate the definition of “State” under Article 12 by incorporating the principles and tests laid down by the Supreme Court’s decisions in Ajay Hasia[20] and Pradeep Kumar Biswas[21]. The degree of preference and importance of each of these tests should also be mentioned in the revised definition. Additionally, the scope of horizontal application of fundamental rights must also be widened to ensure the protection of fundamental rights from breach by private entities.

[1] Constitution of India, art.12. [2] V.N. Shukla, Constitution of India 26-37. (Eastern Book Company, 19th ed. 2019) [3] General Clauses Act, 1897. [4] Electricity Board, Rajasthan SEB v. Mohan Lal, (1967) 3 SCR 377 [5] Supra n. 2 [6] Sukhdev Singh v. Bhagatram Sardar Singh, (1975) 1 SCC 421 [7] Ibid [8] Ramana Dayaram Shetty v. The International Airport Authority of India, (1979) 3 SCC 489 [9] Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 [10] Pradeep Kumar Biswas v India Institute of Chemical Biology, (2002) 5 SCC 111 [11] Supra n. 9 [12] Supra n. 10 [13] Zee Telefilms Ltd. v Union of India, (2005) 4 SCC 649 [14] Supra n. 12 [15] Supra n.13 [16] Constituent Assembly Debates, VII, CAD 610 (1948). [17] Supra note 5 [18] Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388 [19] Supra n.14 [20] Supra n.11 [21] Supra n.19