The document discusses Article 12 of the Indian Constitution, which defines the term 'state' and its implications for fundamental rights. It elaborates on the scope of 'state' to include various government bodies, local authorities, and entities exercising governmental functions, and highlights significant judicial interpretations and cases regarding this definition. The document also examines the role of the judiciary in relation to Article 12, asserting that while judicial decisions cannot be challenged under this article, rules and administrative actions by the judiciary can be contested for violating fundamental rights.

1. ARTICLE - 12
-SHIVANI SHARMA
-ASSISTANT PROFESSOR
-SARDAR PATEL SUBHARTI
INSTITUTE OF LAW

2. ARTICLE-12
 In order to define the scope of fundamental rights
and the scope of remedy under Article 32
constitution makers have defined “State” in the
beginning under Article-12 as:
“the Government and the Parliament of India and
the Government and the Legislature of each of the
State and all local or other authority within the
territory of India or under the control of the
Government of India”

3. TRACING THE ORIGIN OF ARTICLE-12

4.  To understand the expanded meaning of the term “other
authorities” in Article 12, it is necessary to trace the origin
and scope of Article 12 in the Indian Constitution.
 Present Article 12 was introduced in the Draft Constitution
as Article 7.
 While initiating a debate on this Article in the Draft
Constitution in the Constituent Assembly, Dr. Ambedkar
described the scope of this Article and the reasons why
this Article was placed in the Chapter on fundamental
rights as followed:

5. “The object of fundamental rights is twofold:
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

6. If that proposition is accepted – and I do not see anyone who
cares for Fundamental Rights can object to such a universal
obligation being imposed upon every authority created by laws
then, what are we to do to make our intention clear?
There are two ways of doing it one way is to use a composite
phrase such as ‘the State’, as we have done in Article 7; or, to
keep on repeating every time, the Central Government the
Provincial Government the State Government the Municipality,
the Local Board, the Port Trust or any other authority’.
It seems to me not only most cumbersome but stupid to keep
on repeating this phraseology every time we have to make a
reference to some authority. The wisest course is to have this
comprehensive phrase and to economies in words.” - Dr.
B.R. Ambedkar

7. SCOPE OF ARTICLE-12

8.  This definition has given birth to series of judgments and
cases primarily due to inclusion of words “authority” in the last
part of the definition.
 Attempts have been made to determine the scope of this
word.
 Initially the definition of State was treated as exhaustive and
confined to the authorities or those which could be read
ejusdem generis with the authorities mentioned in the
definition of Article 12 itself.
 The next stage was reached when the definition of ‘State’
came to be understood with reference to the remedies
available against it.
 For example, historically, a writ of mandamus was available for
enforcement of statutory duties or duties of a public nature.

9.  Thus a statutory corporation, with regulations farmed by
such Corporation pursuant to statutory powers was
considered a State, and the public duty was limited to
those which were created by statute.
 The decision of the Constitution Bench of this Court in
Rajasthan Electricity Board v. Mohan Lal and Ors., is
illustrative of this.
 The question there was whether the Electricity Board –
which was a corporation constituted under a statute
primarily for the purpose of carrying on commercial
activities could come within the definition of ‘State’ in
article 12.

10. MEANING OF STATE

11.  Executive and Legislature of Union and States include Union and State
governments along with Parliament and State legislatures.
 The President of India and Governors of states can also be referred as ‘State’
as they are a part of the executive.
 The term ‘government’ also includes any department of government or any
institution under its control. The Income Tax Department and the
International Institute for Population Sciences could be cited as examples.
 ‘Local authorities’, as used in the definition, refers to municipalities,
Panchayats or similar authorities that have the power to make laws &
regulations and also enforce them.
 The expression ‘Other authorities’ could refer to any entity that exercises
governmental or sovereign functions.

13.  Article 12 defines the term ‘State’ as used in different Articles of
Part III of the Constitution. It says that unless the context
otherwise requires the term ‘State’ includes the following ;
1. The Government and Parliament of India, i.e., Executive and
Legislature of the Union.
2. The Government and Legislature of each State, i.e., Executive
Legislature of State.
3. All local and other authorities within the territory of India.
4. All local and other authorities under the control of the
Government of India.

14. The term ‘State’ thus includes executives as well as the legislative
organs of the Union and States. It is, therefore, the actions of these
bodies that can be challenged before the courts as violating
fundamental rights.
a) Authorities – According to Webster’s Dictionary; “Authority” means
a person or body exercising power to command. In the context of
Article 12, the word “authority” means the power to make laws, orders,
regulations, bye-laws, notification etc. which have the force of law and
power to enforce those laws.
b) Local Authorities - ‘Local authorities’ as defined in Section 3 (31) of
the General Clause Act refers to authorities like Municipalities, District
Boards, Panchayats, Improvement Trust and Mining Settlement
Boards.

15. In Mohammed Yasin v. Town Area Committee, the Supreme Court held that the
bye-laws of a Municipal Committee charging a prescribed fee on the wholesale
dealer was an order by a State authority contravened article 19 (1) (g). these
bye-laws I effect and in substance have brought about a total stoppage of the
wholesale dealer’s business in the commercial sense. In Sri Ram v. The Notified
Area Committee, a fee levied under Section 29 of the U.P. Municipalities Act,
1919, was held to be invalid.
c) Other authorities - in Article 12 the expression ‘other authorities’ is used
after mentioning a few of them, such as, the Government, Parliament of India,
the Government and Legislature of each of the State and all local authorities. In
University of Madras v. Santa Bai, the Madras High Court held that ‘other
authorities’ could only mean authorities exercising governmental or sovereign
functions. It cannot include persons, natural or juristic, such as, a University
unless it is ‘maintained by the State’.

16.  AJAY HASIA V KHALID MUJIB- test for determining a
state body:
1. Whether entire share capital of the corporation. Is held by
the government
2. Financial assistance of the state
3. Corporation enjoys monopoly status conferred by the
state
4. Existence of deep pervasive state control
5. Functions are of public importance
6. If a department of government is transferred to the
corporation (agency of government)

17. CASE LAWS
BASHESHAR NATH V C.I.T
R.D. SHETTY V INTERNTIONAL AIRPORT
AUTHORITY OF INDIA- airport authority is
state
ZEE TELEFILMS LTD. V UNION OF INDIA –
BCCI is not state
RUPA ASHOK HURRA V ASHOK HURRA-
curative petition

18. BCCI CASE

20. CASE LAWS
 RASHID AHMED V MUNICIPAL CORP., KAIRANA-
MUNICIPAL COPORATIONS
 LT. GOVERNOR DELHI V V.K. SODHI – NCERT IS
NOT STATE
 SUKHDEV SINGH v BHAGATRAM - ONGC, LIC, IFC

21. NCERT CASE

24. WHEN NON STATE BODIES ARE STATE
 PARDEEP KUMAR BISWAS V INDIAN INSTITUTE OF
CHEM BIO – some FR are available against non state
bodies
 M.C. MEHTA V UNION OF INDIA (OLEUM GAS LEAK
CASE) – Non government corporations are states for the
purpose of state control, public function
 UNION CARBIDE CORPORATION V UNION OF INDIA

25. IS JUDICIARY A STATE?
 There is a lot of confusion on the issue as to whether “state”
includes judiciary within the meaning of Article 12. Even the
Supreme Court itself has also sometimes got confused on this
issue.
 The status of judiciary can be understood as under:
1. The administrative side and the quasi-legislative (rule-making)
side of the judiciary are “state” within the meaning of Article 12 of
the Constitution of India. (Prem Chand Garg v Excise
Commissioner)
2. However, the judicial side of the judiciary is NOT “state” within the
meaning of Article 12 of the Constitution.

26.  In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC
1, a 9-judge bench of the Supreme Court held that a judicial decision
pronounced by a judge of competent jurisdiction in or in relation to a matter
brought before him for adjudication cannot affect the fundamental rights of
the citizens since what the judicial decision purports to do is to decide the
controversy between the parties brought before the court and nothing
more. Therefore, such judicial decision cannot be challenged under Article
13. [This is the case of judiciary acting in its judicial capacity.]
 But, in the same case, the Supreme Court also observed that it is plain that if
a party desires to challenge any of the Rules framed by the Supreme Court
in exercise of its powers under Article 145 on the ground that they are
invalid, because they illegally contravene his fundamental rights, it would be
open to the party to move the Supreme Court under Article 32. It was
further held that such a challenge is not against any decision of the Supreme
Court, but against a Rule made by it in pursuance of its rule-making power.
[This is the judiciary acting in the so-called quasi-legislative capacity, i.e., in
the rule-making capacity.]

27.  Later in A.R. ANTULAY V. R.S. NAYAK, 1988 it was held by
the Supreme Court that the courts cannot pass any order
or issue any direction which would violate the
fundamental rights of the citizens, and hence, it can be
asserted that the expression ‘State’ as defined under
Article 12 of the Constitution of India includes ‘judiciary’
also.
 Similarly, it is a common knowledge that orders passed
by the courts in their administrative capacity (including
by the Supreme Court) have routinely been challenged
as being violative of fundamental rights. I have personally
done that in my capacity as a lawyer. [This is the judiciary
acting in its administrative capacity.]

28.  So, you can note that a judicial decision of a court cannot
be challenged as being violative of fundamental rights.
But, an administrative decision or a rule made by the
judiciary can be challenged as being violative of
fundamental rights, if that be supported by facts.
 I may point out that in another case, namely, Ashok
Kumar Gupta v. State of Uttar Pradesh, (1997) 5 SCC 201,
the Supreme Court has held that Article 13 deals with
statute law and not with the law declared by the courts,
or with the directions or orders made by the Supreme
Court under Article 142.

29.  However, recently, in the case of Common Cause v. Union
of India, (2015) 7 SCC 1 : AIR 2015 SC 2286, a two-judge
bench of the Supreme Court, without properly discussing
the issue, observed that:
“Part IV of the Constitution is as much a guiding light for
the Judicial organ of the State as the Executive and the
Legislative arms, all three being integral parts of the “State”
within the meaning of Article 12 of the Constitution.”