Article 12 Defining The Term STATE

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Article 12: Defining the term ‘State’ (Part III of the Constitution of India, 1950)*
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Introduction: Jurisprudential Premise
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According to Bryce, legal sovereignty lies in that authority, be it a person or a body, whose
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expressed will binds others, and whose will is not liable to be over-ruled by the expressed
will of anyone placed above it.1 The concept of sovereignty came about as a result of
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renaissance and reformation of Europe. It was Machiavelli, who developed the concept of
„State Absolutism‟, that is, State is absolute and an end in itself; there cannot be restraints on
its powers. He opined that, the State is neither subordinate to church, nor to the natural law. 2
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The French jurist, Jean Bodin, claimed himself to be the first jurist, who attempted to define
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the term „sovereign‟. For him „sovereign‟ meant, „absolute and perpetual power within a
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State‟.3
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Thomas Hobbes (1588-1679) expressed his political philosophy through his most revered
work Leviathan, which got published two-years after the execution of King Charles I.
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Through his work (Leviathan) Hobbes claimed that society needs a supreme-excellence that
is, an absolute-monarch, for only, the existence of „one supreme sovereign power‟ can ensure
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peace for all. Hobbes argued that, factionalism within society, such as, rival governments,
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differing philosophies, or the tussle between the Church and the government, leads to one
conclusion that is „civil war‟. Thus, for the maintenance of peace, every individual in the
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society needs to agree, albeit to have one authoritative figure that controls the government,
makes the laws and is in-charge of the church; this authoritative figure is to be termed as the
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„State‟.
John Locke (1632-1704) in his most influential work, Two Treaties of Government, details
out his beliefs qua „human nature and politics‟. Cornerstone of his philosophy was the
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premise that, the sole purpose of government is to seek (and support) well-being of all
individuals. Locke believed that, though some natural rights are surrendered when a
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government is established; nay, the ability of the government to protect the rights of
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*Shivam Goel, B.Com Honours (Delhi University); LL.B. (Delhi University); LL.M. (NUJS, Calcutta); Author:
International Arbitration With Special Focus on Bahrain, Lambert Academic Publishing, 2014, ISBN: 978-3-
659-60665-6; Concept of Rights in Islam, Lambert Academic Publication; ISBN-10: 3659641448; ISBN-13:
978-3659641442; and Corporate Manslaughter & Corporate Homicide: Scope for a New Legislation in India,
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Partridge India (26 June 2015), ISBN-10: 1482846837, ISBN-13: 978-1482846836. Law Researcher to Hon‟ble
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Mr. Justice Rajiv Shakdher, High Court of Delhi
1
See: Bryce, Studies in History and Jurisprudence, Volume II, p.53
2
See: Machiavelli, The Prince, Volume XXXVI, Part 1, Harvard Classics, P.F. Collier & Sons, (1909-1914)
3
See: Jean Bodin, Six Books of the Commonwealth, (République, I, 8 [Mc] 84), Du Puys, Paris (1576)
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1
Electronic copy available at: http://ssrn.com/abstract=2660116

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individuals is far more effective, than the ability of an individual to assert them on his own. If
the government, Locke asserts, no longer supports the well-being of its people, it should be
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replaced; further, it is the moral obligation of the community, in such scenario, to revolt.
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When proper government exists, then both, individuals and societies, flourish, both materially
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and spiritually. It is obligatory upon the government (that is, the State) to provide its
individuals with freedom that aligns with the self-perpetuating natural law created by God.4
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John Austin (1790-1859), father of analytical jurisprudence, in his work of reverence,
Province of Jurisprudence Determined (1832), stated in affirmative terms that, „Where there
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is State, there is no anarchy; State is the necessary evil‟. Austin defined „law‟ as the
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command of the sovereign, non-compliance of which calls for sanctions. Austin stated that,
„if a determinate human superior is not in a habit of obedience to any such like superior, but
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receives habitual obedience from the bulk of a given society, then that determinate human
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superior is the sovereign in that society‟.5
Lastly, A.V. Dicey (1835-1922) in his much acclaimed work, The Law of the Constitution,
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explained the theory of „popular sovereignty‟. Dicey stated that, legislature (that is, the
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Parliament) is the legal sovereign because it is the supreme law making body. Behind this
legal sovereign (that is, the legislature) there is a political sovereign which is the electorate.
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The legal sovereign has to act in accordance with the political sovereign. As per Dicey, the
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test to determine, whether or not, a person or a body is a legal sovereign, is to see, whether or
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not, it possesses the power to make or unmake the laws. For establishment of a stable
government, there should be harmony between the two sovereigns, that is, the legal sovereign
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and the political sovereign. Post the elections, in consonance with the election-outcome, the
Parliament is constituted, and hence the sovereignty directly vests in the legal sovereign, and
the political sovereign continues to remain sovereign only indirectly.6
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Lexically speaking, the term „State‟ in the generic sense of the term can be defined as, „a
people permanently occupying a fixed territory bound together by common-law habits and
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custom into one body politic exercising, through the medium of an organised government,
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independent sovereignty and control over all persons and things within its boundaries,
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capable of making war and peace and of entering into international relations with other
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4
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See: Paul Kleinman, Philosophy 101, Adams Media Publication, 2013, p. 101-102
5
See: John Austin, The Province of Jurisprudence Determined, Volume I, John Murray Publishers (1832), p.
220-221
6
See: A.C. Dicey, The Law of the Constitution, Elibron Classics (2000)
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Electronic copy available at: http://ssrn.com/abstract=2660116

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communities of the globe‟.7 The term „State‟ may also be defined as, the organisation of
social life which exercises sovereign power in behalf of the people.8 In the broadest sense of
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the term, „State‟ may be defined as a body politic or a society of men. 9 In strict sense of the
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term, „State‟ may be defined as a body of people occupying a definite territory and politically
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organised, under one government.10 The term „State‟ has within its sweep governmental
agencies authorised by the State, such as municipal corporations.11 In regards to India, the
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term „State‟ has been defined as, the body politic as organised for supreme civil rule and
government.12 The term „State‟ in Indian context qua the understanding of political science
means an independent political society having an organised government; the word
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„government‟ is to include „departments of the government‟. An „Act of State‟ is wide
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enough to encompass „executive orders‟ of the government or a department or of any
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institution managed by a department of the government. Every act of the President and of the
Governor is construed as an act of the State.13
Chapter I- Definitional Analysis:
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Article 12 of the Constitution of India, 1950 gives an inclusive definition to the expression
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„State‟.14 The significance of Article 12 lies in the fact that it occurs in Part III of the
Constitution of India, 1950 which deals with fundamental rights. 15 Article 13(2) of the
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Constitution of India, 1950 bars the „State‟ from enacting laws, that may, amount to
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infringement of fundamental rights. Definition of „State‟ in Article 12 is only for the purpose
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of application of the provisions contained in Part III of the Constitution of India, 1950.
Hence, a claim is made against the State (and its instrumentalities) and not against private
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bodies, for the enforcement of fundamental rights.16 However, even though a „body of
persons‟ may not constitute „State‟ within the instant definition qua Article 12, a writ petition
under Article 226 of the Constitution of India, 1950 may lie against it, either on constitutional
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grounds, or on grounds of contravention of some provisions of the Constitution of India, 1950
outside the ambit of Part III of the Constitution, as for example, where such a body has a
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See: United States v. Kusche, D.C. Cal., 56 F. Supp. 201, 207, 208
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8
See: Delany v. Moraitis, C.C.A. Md., 136 F. 2d 129, 130
9
See: Beagle v. Motor Vehicle Acc. Indemnification Corporation, 44 Misc. 2d 636, 254 N.Y.S. 2d 763, 765
10
See: State ex. rel. Maisano v. Mitchell, 155 Conn. 256, 231 A. 2d 539, 542
11
See: Black‟s Law Dictionary, Sixth Edition (Centennial Edition 1891-1991), p. 1407
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12
See: Section 3(58) of the General Clauses Act, 1897; Article 3 (Explanation I), the Constitution of India, 1950
13
See: Dr. Adish C. Aggarwala, Constitution of India, Amish Publications, 4th Revised Edition, p.42
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14
See: Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251 (Para 22)
15
See: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 (Para 8)
16
See: Shamdasani v. Central Bank of India, AIR 1952 SC 59; Vidya Verma v. Shivnarain, AIR 1956 SC 108
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public duty to perform, or where its acts are supported by the State or public officials.17 To
maintain a writ against a person, or against a non-statutory body, it is necessary that the order
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must be in discharge of public function (or public duty). A private body discharging public
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duty or positive obligation of a public nature, or a person (or body) under a liability to
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discharge any function under any statute is also amenable to writ jurisdiction.18
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According to Article 12 of the Constitution of India, 1950, the term „State‟ includes the
following: (a) the Central Government and the State Governments; (b) the Parliament of
India and the State Legislatures; (c) all local authorities; and (d) other authorities within the
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territory of India, or under the control of the Central Government. Article 12 envisages a
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special definition, with a broader goal, qua the term „State‟. Article 12 does not restrict the
conceptual framework of the term „State‟ within the bounds of the language of the
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constitutional provision, that is, Article 12. It in fact, embraces a definition which is wider in
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scope and perspective, to bring under its sweep all authorities under the control of the
Government. The constitutional philosophy as enumerated in the Preamble of the
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Constitution of India, defines India as- sovereign, socialist, secular, democratic, republic; this
in fact mandates the State to undertake multi-dimensional socio-economic operations inspired
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from Part IV of the Constitution of India, 1950, thus State is empowered to enter into vast
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domain of activities, carrying on operations monopolistically or competitively, to ensure
achievement of the one-dimensional goal of „welfare state‟.
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It can said with affirmation that, the definition of „State‟ as contained in Article 12 of the
Constitution of India, 1950 will include not only the Executive and Legislative organs of the
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Union and the States, but also local bodies (that is, municipal corporations) as well as „other
authorities‟, which include the „instrumentalities or agencies‟ of the State, or bodies (or
institutions) which discharge public functions of governmental character; in other words, it
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comprises of all acts which can be brought within the fold of „State Action‟19. It is necessary
to note that, the concept of „State Action‟ has been enlarged to bring within its domain acts
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done by private persons or bodies exercising statutory powers20 or, acts supported by the
17
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See: Kartick v. W.B.S.I.C, AIR 1967 Cal 231 (234); Also see: Dr. Durga Das Basu, Commentary on the
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Constitution of India, 8th Edition, Lexis Nexis, p.635
18
See: Dr. Durga Das Basu, Commentary on the Constitution of India, 8th Edition, Lexis Nexis, Volume 1, p.
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636
19
See: Som Prakash Rekhi v. Union of India, AIR 1981 SC 212 (Para 34 and 37)
20
See: Steele v. L. & N.R. Co., (1944) 323 U.S. 192; Pennsylvania v. Board of Trustees, (1956) 353 U.S. 230
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State21, with or without legislative authority or in abuse of such authority22, or even where the
State has become involved in private action.23
Chapter II- Tests for the Determination of ‘State’:
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In a series of judgments, the Supreme Court of India has deliberated upon „tests‟ for the
determination of „State‟; the underlining principle being, „functional, financial and
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administrative domination‟ coupled with „deep and pervasive control‟. In the case of Ajay
Hasia v. Khalid Mujib Sehravardi24, the Constitution Bench of the Apex Court relied upon
the „test‟ formulated in the case of R.D. Shetty v. International Airport Authority of India25,
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for the determination of „State‟. The following test was formulated in R.D. Shetty:
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(i). If the entire share-capital of the body is held by the government, it goes a long way
indicating that the body is an instrumentality of the government; (ii). Where the financial
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assistance rendered by the government is so substantial, so as to meet almost the entire
expenditure of the body, it is indicative of the fact that the body is impregnated with
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„governmental character‟; (iii). If the body enjoys „monopoly status‟ which is State conferred
or State protected, it is indicative of the fact that the body is within the periphery of Article
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12; (iv). Existence of deep and pervasive control of the government, qua the functioning of
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the body, affords an indication that the body is State instrumentality; (v). If the functions
performed by the body are of public nature, public character or public importance, and are
instrumentality of the State.
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closely related to governmental functions, it is a relevant factor to treat the body as an
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In the case of, Pradeep Biswas v. Indian Institute of Chemical Biology26, a Seven-Judges
Bench of the Apex Court laid down the following test for the determination of „State‟: (i).
The test formulated in the case of Ajay Hasia v. Khalid Mujib Sehravardi27, is not rigid in
21
22
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See: Smith v. Allwright, (1944) 321 U.S. 649; Marsh v. Alabama, (1946) 326 U.S. 501
See: U.S. v. Classic, (1941) 313 U.S. 299; Screws v. U.S., (1945) 325 U.S. 91
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23
See: U.S. v. Classic, (1941) 313 U.S. 299; Blum v. Yaresky, (1982) 457 U.S. 991
24
AIR 1981 SC 487
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25
AIR 1979 SC 1628
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26
(2002) 5 SCC 111
27
AIR 1981 SC 487; In this case, the Supreme Court of India noted that, the constitutional philosophy of a
democratic socialistic republic requires the Government to undertake a multitude of socio-economic operations,
and there are practical advantages of functioning through the legal device of a corporation for a myriad of
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commercial and economic activities. But any such contrivance of carrying on such activities cannot be declared
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by the Apex Court, to exonerate the Government of its basic obligation to respect the fundamental rights of the
citizens, for otherwise it would be the easiest thing for any Government to do, that is, to assign a plurality of
corporations of almost every State, businesses and thereby cheat the people of the country of their fundamental
rights, guaranteed to them under the Constitution. The Court went on to enunciate certain tests applicable for
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principle that needs to be complied with in all cases without exception, to determine, whether
or not, a body (or authority) is a State; (ii). All cases are to be determined in the light of their
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respective cumulative facts, that is to see, whether or not, a body (or authority) is financially,
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functionally and administratively dominated by, or is under the control of, the government;
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(iii). The control should not be perfunctory, but it should rather be deep and pervasive; (iv). If
the control is mere regulatory under a statute (or otherwise), then the body (or authority)
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cannot be termed as a State under the aegis of Article 12. Complementing the decision
rendered in the Pardeep Kumar Biswas (supra), the Supreme Court in G. Bassi Reddy v.
International Crops Research Institute28, held that, the International Crops Research
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Institute (ICRI) is not a State within the meaning of Article 12 of the Constitution of India,
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1950, as it has been set up as a non-profit research and training centre to help developing
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countries to alleviate rural poverty (and hunger); ICRI is neither set up by the government,
nor is controlled (or is accountable) to the government, and hence it is outside the sweep of
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Article 12 of the Constitution of India, 1950.
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In the case of Zee Telefilms Ltd. v. Union of India29, deliberating upon the term “other
authorities” as appearing in Article 12 of the Constitution of India, 1950, the Apex Court held
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that, the following bodies (or authorities) shall fall under the aegis of the term “other
authorities”, as appearing in Article 12 of the Constitution of India, 1950: (i). Corporations
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and Societies created by the State for carrying out trading activities, in terms of Article 298 of
the Constitution of India, 1950; where the capital, infrastructure, initial investment and
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financial aid is provided by the State (and the State exercises the necessary regulation and
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control thereof); (ii). Bodies created for, or otherwise carrying out, works in the nature of
research and development, which are, broadly speaking, in periphery of „governmental
functions‟, but may or may not be in the domain of „sovereign functions‟; (iii). A private
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body discharging a „public duty‟ or a „positive obligation of public nature‟, and is carrying
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out activities which are otherwise in the nature of the „job of the government‟. The court
further held that, in case of „hybrid bodies‟, the relevant factors qua the determination of
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State, shall be the following: (a) When a body acts as a public authority, and has a public
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duty to perform; (b) When it is duty-bound to protect the human rights; (c) When it monitors
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a profession (or vocation) qua the citizens, which otherwise is a fundamental right under the
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determining whether or not, an entity is an “instrumentality or the agency of the State”, an expression that does
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not figure in Article 12 of the Constitution but which would constitute an authority under Article 12 of the
Constitution.
28
AIR 2003 SC 1764
29
AIR 2005 SC 2677: (2005) 4 SCC 649
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Constitution; (d) When it regulates the right of a citizen as contained in Article 19(1) (a) of
the Constitution of India, 1950, available to the general public, viewers of the game of cricket
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in particular; (e) When it exercises „de facto‟ or „de jure‟ monopoly; (f) When to a body (or
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authority), the State outsources its legislative power; and (g) When a body is obliged with a
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positive obligation of public nature. These tests are of an independent standing. In this case,
the Apex Court held that BCCI (Board of Control for Cricket in India) is not a State under the
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aegis of Article 12 of the Constitution of India, 1950, for the control exercised by the
government over BCCI was merely regulatory in nature and not pervasive. The court stated
with affirmation that, if a private body chooses to discharge functions (or duties) which are
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State functions (or public duties), which are not prohibited under law, then such a private
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body may be considered as an instrumentality of the State.
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Recently, the Supreme Court of India in the case of, Board of Control for Cricket in India v.
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Cricket Association of Bihar30, speaking through the bench of Justice T.S. Thakur and
Justice F.M. Ibrahim Kalifulla, held that, BCCI is amenable to the writ jurisdiction of Article
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226 of the Constitution of India, 1950, even though admittedly, it is not a „State‟ within the
meaning of Article 12 of the Constitution of India, 1950, for BCCI is neither created by a
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statute, nor any part of its share capital is held by the Government; no financial assistance is
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given to the BCCI by the Government; and it is not created by transfer of a government-
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owned corporation. The rationale behind arriving at this decision, that is, BCCI is amenable
to the writ jurisdiction albeit Article 226 of the Constitution of India, 1950, was the fact that,
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BCCI‟s control over the sport of cricket in India is deep and pervasive and BCCI enjoys a
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monopoly status so far as the game of cricket in India is concerned. BCCI formulates rules,
regulations, norms and standards covering all aspects of the game of cricket in India. It
enjoys the power of choosing (or selecting) not only the members of the national cricket
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team, but also the umpires and the coaches. It vests itself with the power of disqualifying
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players which may at times put an end to the sporting career of a cricketer. It spends huge
sums of money in building, developing and maintaining infrastructures like stadia, cricket
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academies and State sports associations. It frames and regulates pension schemes and incurs
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expenditure on coaches, trainers and physicians to look after and cater to the cricket players.
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It sells broadcasting and telecasting rights and collects admission fees qua the venues where
the cricket matches are played. All these activities fructify owing to the tacit concurrence of
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the State Government and the Government of India, which are not just fully aware but are
30
(2015) 3 SCC 251
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also fully supportive of the BCCI‟s activities. In such a situation owing to the doctrine of
fairness and good faith, BCCI has a huge responsibility at its peril to discharge, that is, to
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look after the sport of cricket in India. The nature of this responsibility is of a great public
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importance and value. Thus, although BCCI is a private body formed under the Tamil Nadu
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Registration of Societies Act, 1975, it is subject to the writ jurisdiction of the Constitution of
India, 1950 vide Article 226, with little regards to the fact that it is not financially,
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functionally or administratively dominated by the Government.
Local Authorities: Section 3(31) of the General Clauses Act, 1897 defines the term local
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authority as follows, “local authority shall mean a municipal committee, district board, body
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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”. Hidayatullah, J. in the case of
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Municipal Corporation of Delhi v. Birla Cotton, Spinning & Weaving Mills Delhi31,
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describing some of the attributes of local bodies, held as follows: “Local bodies are
subordinate branches of governmental activity. They are democratic institutions managed by
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the representatives of the people. They function for public purposes and take away a part of
the government affairs in local areas. They are political sub-divisions and agencies which
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exercise a part of State functions. As they are intended to carry on local self-government, the
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power of taxation is a necessary adjunct to their other powers. They function under the
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supervision of the Government.”
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In the case of, Union of India v. R.C Jain32, the Supreme Court of India held threadbare that,
to be characterised as an „authority‟ within the periphery of „local authority‟, it should have
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the following attributes: (a) it must have separate legal existence as a corporate body; (b) it
must not be a mere government agency but must be legally an independent entity, functioning
in a defined area; ordinarily, wholly or partly, directly or indirectly, elected by the inhabitants
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of the area; (c) it must enjoy a certain degree of autonomy (either complete or partial), which
must be entrusted to it by a statute; and (d) such a body must have power to raise funds for
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furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or
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fees. Following the above laid test, the Apex Court in the present case held that, Delhi
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Development Authority being a statutory body, is a local authority within the meaning of
Article 12, for because it was constituted for the avant-garde purpose of development of
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Delhi according to government plans, which inherently constitutes a municipal function.
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31
AIR 1968 SC 1232
32
AIR 1981 SC 951
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The term „local authorities‟ has within its sweep- Municipalities, District Boards, Panchayats,
Improvement Trusts, Port Trusts and Mining Settlement Boards.33 In the case of Electricity
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Board, Rajasthan v. Mohan Lal34, the Supreme Court of India, categorically stated that the
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term „other authorities‟ has within its sweep, all authorities created by the Constitution or
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Statute, powers qua which are conferred by law. In the case of, Dr. Dinesh Kumar v. Motilal
Nehru Medical College35, it was held that every municipal corporation is a local authority
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and thus, the term “State” within the meaning of Article 12 of the Constitution of India, 1950
will include within its ambit „medical colleges‟ run by municipal corporations. In a series of
judgments (Ajit Singh v. State of Punjab36, State of Gujarat v. Shantilal Mangaldas37, J.
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Hiralal v. Bangalore Municipality38), construing village panchayats, port trusts and
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municipal committees as units of local self-government, the court of law held them to be
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covered by the definition of „State‟ as provided under Article 12 of the Constitution of India,
1950.
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In the case of Calcutta State Transport Corporation v. Commissioner of Income Tax, West
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Bengal39, the Apex Court refused to characterise the subject corporation as a local authority,
stating that, merely because a corporation provides road transport services, it would not bring
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it within the purview of Article 12 of the Constitution of India, 1950, having regard to the
fact that, it has no element of „popular representation‟ albeit its constitution. Further, as the
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powers and functions of the subject corporation bear no relation to the powers and functions
of a municipal committee and the nature of the subject corporation being „trading‟, the
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subject corporation is not within the scope of Article 12 of the Constitution of India, 1950.
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In the case of Indian Banks’ Association, Bombay v. Devkala Consultancy Service40, the
Supreme Court of India held that, Indian Banks‟ Association and Banks which are created
under the respective Parliamentary Acts or are nationalised in terms of the Banking
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Companies (Acquisition and Transfer of Undertakings) Acts, 1970 and 1980 are “State”
within the meaning of Article 12 of the Constitution of India, 1950.
33
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One of the earliest cases, whereby a municipal board was held to be a local authority, within the ambit of
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Article 12 of the Constitution of India, 1950 was the case, Rashid Ahmed v. M.B. Kairana, AIR 1950 SC 163
(ratio qua this case was followed in the case of, State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634)
34
AIR 1967 SC 1857
35
AIR 1985 SC 1415
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36
AIR 1967 SC 856
37
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AIR 1969 SC 634
38
AIR 1982 Kant. 137
39
AIR 1996 SC 1316
40
AIR 2004 SC 2615
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It is necessary to note that, once a body is characterised as an „authority‟ qua the mandate of
Article 12 of the Constitution of India, 1950, following significant incidents follow: (a) the
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body becomes subject to the regimen of the fundamental rights, as contained in Part III of the
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Constitution of India, 1950 (this means, the actions or decisions of the body, can be
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challenged with reference to the fundamental rights); (b) the body becomes subject to the
regimen of the administrative law; and (c) the body becomes amenable to the writ-
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jurisdiction of the Supreme Court under Article 32, and that of the High Court under Article
226 of the Constitution of India, 1950.
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Statutory Bodies: There are four cases of fundamental importance to deliberate upon the
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issue of statutory bodies qua Article 12 of the Constitution of India, 1950. These cases are:
Rajasthan State Electricity Board v. Mohanlal41, where it was held that, Rajasthan State
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Electricity Board is „State‟ within the meaning of Article 12 of the Constitution of India,
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1950; for carrying out activities in the nature of trade and commerce cannot oust a statutory
body established under the Electricity Supply Act from the definition of State under Article
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12 of the Constitution of India, 1950; Sukhdev v. Bhagatram42, where it was held that Life
Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation are
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statutory bodies within the meaning of Article 12 of the Constitution of India, 1950; R.D.
Shetty v. International Airport Authority of India43, it was held that International Airport
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Authority of India is a statutory body within the purport of Article 12 of the Constitution of
India, 1950; and Som Prakash Rekhi v. Union of India44, where it was held that,
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determination in regards to whether or not a body corporate is a „State‟ does not depends on
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the origin qua such body corporate in statutory sense of the term, but on the basis of
„functional aspects‟ vis-à-vis such body corporate, thus it was held that the test is that of
„brooding presence of the State behind the operations of the body, whether statutory or not‟.
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In the case of, Madhya Pradesh Cooperative Dairy Federation Limited v. Rajnesh Kumar
Jamindar & Others45, the question that came for adjudication before the court was, whether
/
or not, Madhya Pradesh State Cooperative Dairy Federation Limited was a “State” within the
/
meaning of Article 12 of the Constitution of India, 1950? The court ruled that, whether
:s
Madhya Pradesh State Cooperative Dairy Federation Limited was a „State‟ within the purport
p
41
AIR 1967 SC 1857
42
tt
AIR 1975 SC 1331
43
AIR 1979 SC 1628
44
AIR 1981 SC 212
45
(2009) 15 SCC 221
h
10
sff
ut
of Article 12 can be determined by applying the test of “administrative, financial and
functional control”. The court asserted that, federation concerned, in the present case, not
S
only carries on commercial activities, but it also works for achieving, better economic
_
development and public health vis-à-vis the society, thus, it caters to the spirit of Article 4746
se
of the Constitution of India, 1950. The court further held that, the federation in the present
case was a federal society registered under the Madhya Pradesh Cooperative Societies Act,
to
1960; it undertakes works, not only in the nature of training and research, but also it monitors
as an Apex Body, the functioning of societies established under it. Moreover, guidelines
issued by it (Madhya Pradesh State Cooperative Dairy Federation Limited) are binding on the
N
societies, established under it, by virtue of the operation of the Madhya Pradesh Cooperative
e
Societies Act, 1960. It was concluded by the court that, by virtue of the nature of the
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operations carried out by the federation, it can be termed as the agency (or instrumentality) of
the State.
ll
It is interesting to note that, in the case of, Dalco Engineering (P) Ltd. v. Satish
o
Prabhakar47, it was held that, the terminology: “corporation established by or under a
Central, Provincial or State Act”, as has been used in several enactments intends to convey a
C
standard meaning. This terminology, as used in various enactments, makes a reference to
“statutory corporations” as contrasted from “non-statutory companies”. An attempt to include
a w
private sector within the purport of this terminology will not only amount to the over-ruling
of the clear enunciation in S.S. Dhanoa v. Municipal Corporation (Delhi)48, which has held
L
the field for almost three decades, but will also lead to obliteration of the distinction
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maintained, in the Constitution between statutory corporations (which are “State” within the
meaning of Article 12) and the non-statutory bodies (and corporations), for the purposes of
enforcement of fundamental rights. The Apex Court, thus, affirmatively held that, where the
m
definition of “establishment” uses the term “a corporation established by or under an Act”,
.t
the emphasis should be on the word “established” in addition to the words “by or under”. The
word “established” refers to coming into existence by virtue of an enactment. It does not
/
refers to a company, which, when comes into existence, is regulated by, or is governed in
/
accordance with, the provisions of the Companies Act. There is difference between
:s
“established by a Central Act” and “established under a Central Act”. A corporation is
p
46
tt
Article 47 of the Constitution of India, 1950: Duty of the State to raise the level of nutrition and the standard
of living and to improve public health
47
(2010) 4 SCC 378
48
(1981) 3 SCC 431
h
11
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ut
established by an Act, when the Act itself establishes the corporation; for example, Section 3
of the State Bank of India Act, 1955 provides that, a bank to be called the State Bank of India
S
should be constituted within the precincts of the State Bank of India Act, 1955, for carrying
_
on the business in the nature of banking. On the other hand, a corporation is established under
se
an Act, when the power is conferred to the Government to establish a corporation within the
domain of the Act; for example, Section 3 of the State Financial Corporations Act, 1951
to
provides that, for the establishment of State Financial Corporations, the State Government
may by notification in the official gazette establish a financial corporation for the State under
such name, as be specified in the notification; such financial corporation shall be a body
N
corporate by the name so notified. Nonetheless, when the words “by and under an Act” are
e
preceded by the words “established”, the reference is to a corporation established, that is,
ge
brought into existence, by virtue an Act or under an Act. Statutory corporations, no doubt
owe their existence to legislative enactments but nonetheless, they are incorporated (or
ll
registered) under the Companies Act. Statutory corporations are “State” within the meaning
o
of Article 12 of the Constitution of India, 1950, subject to the application of the test of
„brooding presence of “State” behind their operations‟. Observations made by the Apex Court
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in the case of, CIWTC v. Brojo Nath Ganguly49, cannot be lost track of. In this case, the
Supreme Court held as follows: “If there is an instrumentality or agency of the State which
w
has assumed the garb of a government company as defined under Section 617 of the
a
Companies Act, it does not follow that it thereby ceases to be an instrumentality or agency of
L
the State. For the purposes of Article 12, one must necessarily see through the corporate veil
to ascertain whether behind that veil is the face of an instrumentality or agency of the State.”
/e
Authorities situated Outside India: In the case of Ramamurthy v. Chief Commissioner50,
the Apex Court held that, the words “…or under the control of the Government of India”
m
appearing in Article 12 of the Constitution of India, 1950 are to be read as, “…all local or
.t
other authorities within the territory of India or all local or other authorities under the control
of the Government of India…”. The result of such an interpretation would be that, an
/
authority outside India, but under the control of the Government of India, will fall within the
/
meaning of Article 12 of the Constitution of India, 1950. Hence, Article 12 shall apply to the
:s
territories outside India, administered by India under the Foreign Jurisdiction Act, 1947,
provided they are under the control of the Government of India (as ordinarily judicial and
tt p
49
50
AIR 1986 SC 1571: (1986) 3 SCC 156
AIR 1963 SC 1464; See also: Masthan Sahib v. Chief Commissioner, AIR 1963 SC 533
h
12
sff
ut
quasi-judicial authorities are not „under the control of the Government of India‟). Thus,
where the control of the Government of India extends to an authority outside India, the
S
Superior Courts in India can exercise their „constitutional jurisdiction‟ over the acts of such
_
administrative authorities by passing suitable orders. It is necessary to note, in the case of
se
Lena Khan v. Union of India51, it was held that, an instrumentality or agency of the State
having operations outside India cannot comply with the municipal law as prevailing abroad,
to
which is, in violation of the provisions of the Constitution of India, 1950.52
Chapter III: Whether ‘State’ includes ‘Judiciary’?
N
In the United States, a „judicial decision‟ is included in the concept of „State Action‟ for the
e
purpose of enforcement of fundamental rights conferred by the Fourteenth Amendment
ge
(citizenship rights and equal protection of laws) of the Constitution.53 In Ex parte Virginia54
it was held that, “A State acts by its legislative, its executive, or its judicial authorities; it can
ll
act in no other way”. Further, in the United States, the acts of Courts and judicial officers (in
their judicial capacity) are equally acts of the State, to which the guarantee of „equal
o
protection‟ extends. This aspect can be understood comprehensively through the decision in
C
the case of, Shelley v. Kraemer55. In this case (Shelley) a restrictive covenant albeit
stipulation, forbade the use of property by individuals, who were not from the Caucasian
w
race. It was held that, the covenant was unenforceable as the covenant excluded a class of
a
persons simply on the ground of their race, which in turn was violative of the equal protection
L
clause. It was ruled that, the covenant would be unenforceable in the Court of Law, and a
judicial decision which would attempt to enforce it would be violative of the constitutional
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guarantee of equal protection. It was asserted with affirmation that, it cannot be suggested
that a court action is immune from the operation of the provisions of the Constitution simply
because it is an act of the „judicial branch‟ of the State (that is, the Government). In short, the
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position that entails in the United States of America is that, a conviction will fall (that is, will
51
AIR 1987 SC 1515: (1987) 2 SCC 402; In this case, the age of superannuation of air hostesses employed by
/
Air India in India was fixed at 35 years with extension till 45 years of age, however, air hostesses employed
outside India were allowed to continue beyond the age of 45 years. It was held that, such discrimination should
/
not be sustained merely because it complies with the local law abroad (Section 6(4), the U.K. Sex
:s
Discrimination Act, 1975). Air-India‟s submission to maintain the same age of retirement everywhere in future
was sustained by the Apex Court.
52
See: P.M. Bakshi, Constitution of India, Universal Law Publishing Co., Eighth Edition (2007), p. 10
53
In the case of Virginia v. Rives, (1880) 100 U.S. 313, the Supreme Court of the United States observed as
p
follows: “It is doubtless true that a State may act through different agencies- either by its legislative, its
tt
executive, or its judicial authorities; and the prohibitions of the Amendment extend to all actions of the State
denying equal protection of laws, whether it be action by one of these agencies or by another.”
54
(1880) 100 U.S. 339 (347)
55
(1948) 334 U.S. 1
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13
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be quashed) if the accused succeeds to establish that, the method of trial or the judicial
strategy devised to reach the verdict was bad of the „equal protection clause‟. It is interesting
S
to note that, in the case of Budhan v. State of Bihar56, the Supreme Court of India taking
_
inspiration from the decisions rendered by the United States Supreme Court held that, any
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„State Action‟- executive, legislative or judicial, which contravenes or is in conflict with
Article 14 of the Constitution of India, 1950 is void. Needless to say, Article 14 of the
to
Constitution of India, 1950 is based on lines verbatim qua the „equal protection clause‟ of the
American Constitution. In the case of Mahendra v. State of U.P.57, it was held that, the
courts like any other organ of the „State‟ are limited by the mandatory provisions of the
N
Constitution of India, 1950, and they cannot be allowed to override the fundamental rights
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under the shield that they have within their jurisdiction, the right to make erroneous
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decisions. The jurisdiction of a court is limited by the Suprema Lex (the Constitution); it
cannot, henceforth, have the jurisdiction to decide a case, contrary to the provisions of the
ll
Constitution. Where a decision contravenes a fundamental right, it is not merely a case of
o
wrongful decision; for a decision that attempts to override the constitutional limitations is
without jurisdiction and is a nullity.58 The fundamental premise can thus be stated as follows:
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“If the decision of a court is intra-vires in the legal sense of being within the jurisdiction
conferred by a statute, it may be legally valid; but when it contravenes a fundamental right
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guaranteed by a written Constitution, it becomes constitutionally invalid.”59
L a
In Rupa Ashok Hurra v. Ashok Hurra60, the Apex Court affirmatively ruled that, no judicial
proceeding could be inferred to have been violating the fundamental rights contained in Part
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III of the Constitution of India, 1950. The task of the superior courts of justice as the
custodians of the Constitution is to protect the fundamental rights of the citizens from State
transgressions. It was emphasised that, the superior courts of justice do not fall within the
m
ambit of „State‟ or „other authorities‟ vis-à-vis Article 12 of the Constitution of India, 1950.
.t
/
56
AIR 1955 SC 191
/
57
(1963) Supp. 1 SCR 912 (930)
:s
58
In the case of A.G. v. Lachmi, AIR 1986 SC 467 (468), a Three-Judge Bench of the Supreme Court of India
allowed a joint petition and quashed the judicial order of the Rajasthan High Court which had directed a death
sentence to be executed by “public hanging”, on the ground, inter alia, that such a direction is violative of
p
59
See: Rogers v. Richmond, (1961) 365 U.S. 534; See also: A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531, in
tt
this case a Seven-Judge Bench of the Supreme Court of India held that, a judicial order which violates a
fundamental right is without jurisdiction, and therefore is a nullity and may be rectified by the superior court
which passed that order, in exercise of its inherent jurisdiction.
60
AIR 2002 SC 1771
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Position in India: “...If there is one principle which runs through the entire fabric of the
Constitution, it is the principle of the rule of law and under the Constitution, it is the
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judiciary which is entrusted with the task of keeping every organ of the State within the limits
_
of the law and thereby making the rule of law meaningful and effective...The judiciary stands
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between the citizen and the State as a bulwark against executive excesses and misuse or
abuse of power by the executive...” – S.P. Gupta v. Union of India, AIR 1982 SC 149
to
(p.197-198)
The doctrine of separation of powers enumerates that, there are three-wings of the State; the
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legislature, the executive and the judiciary. The legislature enacts the laws, the executive
e
implements the laws and the judiciary interprets the laws. Although, the third wing of the
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State, that is, the judiciary is considered as the weakest wing of the State, it is often termed as
the „watchdog‟ of the Constitution, for it sees that the legislature and the executive work as
ll
per the mandate of the Constitution, which in turn draws impetus from the „will of the people
of the country‟.
o
The definition of „State‟ as contained in Article 12 of the Constitution of India, 1950, in no
C
specific terms mentions „judiciary‟ to be within the periphery of the „State‟, but it is
understood that for administrative purposes albeit the working of the court, and not for the
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dispensation of justice, judiciary falls within the terrain of the State. In no uncertain terms, in
a
the case of Kesavananda Bharti v. State of Kerala61, the Apex Court held that „independence
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of judiciary‟ is a part of the „basic structure doctrine‟.
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The mention of the word “includes” in Article 12 of the Constitution of India, 1950 is of great
relevance. The mention of this word indicates that the definition of „State‟ in Article 12 is not
exhaustive. Thus, even though Article 12 specifically speaks of the Government and the
m
Legislature, there might be other instrumentalities (or agencies) of the State, within its
.t
periphery. The non-counting of „judiciary‟, hence, does not necessarily indicate that the
courts are outside the purview of Article 12.62 In the case of Paramatma v. Chief Justice63, it
/
was categorically held that, the Chief Justice of High Court, having the power to make
/
statutory appointments, will be within the purview of Article 12, under the expression “other
:s
p
61
(1973) 4 SCC 225: AIR 1973 SC 1461
62
tt
See: Ujjam Bai v. State of U.P., (1963) 1 SCR 778, Ayyangar, J. dissenting; Naresh v. State of
Maharashtra, (1966) 3 SCR 744, Hidayatullah, J. dissenting; Aman Preet Singh v. Government of India, AIR
1996 P&H 284
63
AIR 1964 Raj 13
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authorities”. Further in the case of, State of Bihar v. Bal Mukund64, it was held that, the
High Court is an „authority‟ within the purport of Article 12 of the Constitution of India,
S
1950, and its administrative decision is amenable to its writ jurisdiction on the judicial side.
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Observations made in the case of Rajasthan State Electricity Board v. Mohan Lal65, are trite
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and they still hold the ground. In this case it was held that, the expression „other authorities‟
appearing in Article 12 of the Constitution of India, 1950 need not be construed ejusdem
to
generis. It was further observed that, the definition of „State‟ in Article 12 of the Constitution
of India, 1950, is not exhaustive. Based on the jurisprudential analysis of Article 12 pursuant
to this case, scholars in the likes of Dr. Durga Das Basu observed that, there appears no
N
reason as to why the „judicial organ‟ of the State be excluded from the ambit of Article 12
e
merely because it expressly mentions only the Executive and the Legislative branches.
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In the recent case of, Riju Prasad v. State of Assam66, the Supreme Court of India, clearing
ll
the air qua the controversy as to whether or not, judiciary falls within the purport of Article
12 of the Constitution of India, 1950, held as follows: “The definition of ‘the State’ under
o
Article 12 is contextual depending upon all relevant facts including the concerned provisions
of Part III of the Constitution. The definition is clearly inclusive and not exhaustive. Hence,
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omission of judiciary when the Government and Parliament of India as well as Government
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and Legislature of each State has been included is conspicuous but not conclusive that
a
judiciary must be excluded.”
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Quasi-Judicial Authorities: It is a settled law that, an administrative tribunal is a limb of the
Executive; but because it is obliged to „hear‟ before it „decides‟, it has some “trappings of the
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court”; but, such an obligation cannot bring it up to the status of a court, in all respects. 67 It is
because of the fact that, an administrative tribunal is not a court, it is called quasi-judicial.
Being a limb of the Executive, it comes clearly within the periphery of Article 12 of the
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Constitution of India, 1950. In the case of, Kamala Mills v. State of Bombay68, the Apex
Court held that, if a quasi-judicial body acts under an ultra-vires law or, outside its
/
jurisdiction or, ignores the mandatory rules of procedure prescribed under the relevant law
/
(for time being in force) or, infringes the principles of natural justice and thereby affects the
:s
fundamental rights, then its action can be quashed by the Court of Law. Deliberating further,
p
64
AIR 2000 SC 1296: (2000) 4 SCC 640
65
tt
(1967) 1 SCR 377 (385)
66
2015 SCC Online SC 613 (Para 60)
67
See: Shell Co. v. Federal Commissioner of Taxation, (1930) AC 275 (296, 298)
68
AIR 1965 SC 1942: (1966) 1 SCR 64
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16
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the Constitution Bench of the Supreme Court of India, in the case of, Sitaram v. Union of
India69, purposively held that, an act of the repository of power, whether legislative or
S
administrative or quasi-judicial, is open to challenge if: it is in conflict with the Suprema Lex
_
(the Constitution); or, the Governing Act; or, the general principles of the law of the land; or,
se
it is so arbitrary or unreasonable that no „fair-minded‟ authority could have ever made it.
Thus, quasi-judicial authorities come within the ambit of Article 12 of the Constitution of
to
India, 1950, and hence their acts vis-à-vis decisions attain legitimacy only if they are able to
withstand the test of fundamental rights, that is, if their acts vis-à-vis decisions do not
infringe the fundamental rights conferred upon the citizens of the country.
Chapter IV: Can the State claim ‘fundamental rights’ for itself?
e N
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In the case of State of West Bengal v. Union of India70, it was observed that, „fundamental
rights‟ are primarily for the protection of the rights of individuals and corporations, and are
ll
enforceable against executive actions and/or legislative actions of the government agency.
However, it is essential to remember that all pre-existing laws, which are inconsistent with,
o
and all post-constitutional laws which contravene (or prohibit) the fundamental rights, to the
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extent of inconsistency or contravention are void. Some of the fundamental rights declared
are in a positive form, but are subject to reasonable restrictions, thus, authorising the State to
w
make laws derogatory qua the fullness of the protection [For example: Article 15 (4); Article
a
16 (3) to Article 16 (5); Article 19 (2) to Article 19 (6); Article 22 (3); Article 22 (6); Article
L
23 (2); Article 25 (2); Article 28 (2) and Article 28 (3)]. Also, there are certain Articles which
merely declare rights [For example: Article 17; Article 25 (1); Article 26; Article 29 (1); and
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Article 30 (1)] and there are others which prohibit them without reference to the right of the
person, body or agency which are to enforce them [For example: Article 18 (1); Article 23
(1), Article 24; and Article 28 (1)].
.t m
The Apex court, in the present case, deliberated that it is trite to say that rights declared in the
form of prohibition must have a concomitant positive content, for without such positive
/
content they could be worthless. It is important to note that there are Articles in the Suprema
/
Lex (the Constitution of India, 1950) which are not in the form of rights but are rather in the
:s
form of fundamental disabilities [For example: Article 18 (2) to Article 18 (4)]. The principal
tt p
69
70
(1990) 3 SCC 223 (Para 52)
(1964) 1 SCR 371: 1963 BLJR 675: AIR 1963 SC 1241
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17
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question that came to be answered before the Supreme Court was: Whether or not, „State‟ has
fundamental rights?
Chief Justice Sinha (as he then was), speaking for the majority held that, under the
_ S
se
Constitution of India, 1950, fundamental rights can be claimed, not only by the individuals
and corporations, but sometimes even by the State. To reach this robust conclusion, His
to
Lordship laid due emphasis on the factual matrix, entailing in this case. This case revolved
around a proposal given by the Union of India under the Coal Bearing Areas (Acquisition and
Development) Act, 1957, to acquire certain coal bearing areas in the State of West Bengal.
N
The State Government objected and expressed its reservation qua the proposal on the premise
e
that, the Coal Bearing Areas (Acquisition and Development) Act, 1957, does not apply to the
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land belonging to the State Government. It was the stand of the State Government that, even
if the said Act applied to the land in question (acquisition of which was sought by the Union
ll
of India), it would be outside the legislative scope of the Parliament to enact a legislation to
acquire the same (that is, land belonging to the State Government). On perusal of the Act, the
o
Supreme Court of India reached the conclusion that, the Coal Bearing Areas (Acquisition and
Development) Act, 1957, applied to the land belonging to (or, held by) the State Government.
C
The Apex Court ruled that, the Act enacted by the Parliament (that is, the Coal Bearing Areas
w
(Acquisition and Development) Act, 1957) was intra-vires the Constitution of India, 1950,
a
and further, it was held that, under Entry 42 of List III of the Seventh Schedule of the
Constitution of India, 1950, the Parliament is authorised to enact appropriate laws governing
L
the property vested with the State Government.
/e
In nutshell, the court held as follows: (a) The word “State”, in the words “acquisition by the
State”, as so appearing in the Preamble of the Coal Bearing Areas (Acquisition and
Development) Act, 1957, refers only to the Union Government; (b) A conjoint reading of the
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Preamble and Section 9 of the Coal Bearing Areas (Acquisition and Development) Act, 1957,
makes it abundantly clear that the right of the State (that is, Union Government) qua the
/
acquisition of coal-bearing land is not excluded from the purview of the Act; and (c) Clause
/
(2) of Article 31 grants protection in terms of widest amplitude against compulsory
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acquisition or requisition of property; there is nothing in the Article 31 which indicates that
the property which is to be protected should be of individuals and corporations alone; the
p
expression „person‟ used in Clause (1) is not used in Clause (2) and (2-A), moreover,
tt
contextual reading of the Clauses of the Article do not warrant any interpretation, that is in
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18
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regards to, protection not to be conferred qua the acquisition of property belonging to the
States (that is, to the destructible units of the indestructible Union).
No doubt Article 31 of the Constitution of India, 1950 stands omitted by virtue of Section 6
_ S
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of the Constitution (Forty Fourth Amendment) Act, 1978 (with effect from: 20-06-1979), but
the observations made in this case, State of West Bengal v. Union of India (supra) are far
to
reaching, especially in light of the facts recognising existence of fundamental rights qua the
State.
Apart from this, in the case of Election Commissioner v. State of Haryana71, it was held that
N
where a State (State Government) is affected by an order of an independent public body, for
e
example, the Election Commission, to which Article 131 has no application, the State (State
ge
Government) can file a writ petition under Article 226 of the Constitution of India, 1950. In
the case of, Corporation of Nagpur v. N.E.L. & P. Co.72, it was held that, a local authority
ll
having a legal grievance can in certain cases take out a writ petition. In this case, a writ was
issued on the petition of a local authority against a public utility concern, for the latter‟s
o
failure to honour its statutory obligation, that is, to supply power to the local authority
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(consumer).
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Moreover, in limited sense of the term, the State through Parliament can exercise powers
conferred onto it by virtue of Article 33 and Article 34 of the Constitution of India, 1950.
L a
Exceptions to fundamental rights, as contained in Article 33 and Article 34 of the
Constitution of India, 1950, can be seen in a narrow sense of the term, from the standpoint of
/e
the power that vests with the State (Parliament) to the extent circumscribed by Article 33 and
Article 34 of the Constitution of India, 1950. Article 33 equips the Parliament to make laws
to restrict the rights conferred by Part III of the Constitution of India, 1950, in application to
m
the Members of the Armed Forces, Members of Forces charged with the maintenance of
.t
public peace and order, and in regards to persons employed in any organisation established
by the State for the purposes of intelligence or counter-intelligence; the purpose behind this
/
Article is to administer discipline among the Members of Armed Forces, Intelligence and
/
Counter-Intelligence.73 By virtue of Article 34, power is conferred onto the Parliament: (a) to
:s
p
71
(1984) Supp. SCC 104: AIR 1984 SC 1406
72
tt
AIR 1985 Bom 498
73
In the case of Prithi Pal Singh Bedi (Lt. Col.) v. Union of India, AIR 1982 SC 1413: (1982) 3 SCC 140:
1982 SCC (Cri) 642 (Paragraphs 13-18), it was held that, a law passed by virtue of Article 33 can override
Articles 21 and 22 of the Constitution of India, 1950.
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indemnify any person in respect of acts done by him in connection with the maintenance or
restoration of order in any area within the territory of India where martial law is in force; and
S
(b) to validate any sentence passed, punishment inflicted, forfeiture ordered or other act done
_
under martial law in such area. The opening words of Article 34 are as follows:
se
“Notwithstanding anything in the foregoing provisions of this Part…”, this means that, the
power to indemnify conferred on Parliament by this Article is exercisable in relation to acts
to
in derogation of the fundamental rights enumerated in Part III of the Constitution of India,
1950.74 The power the Parliament enjoys under this Article is subject to the following
conditions: (a) the act done must be in connection with the maintenance or restoration of
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order, and (b) martial law must be in force in the area where the act was done. This Article is
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an exception to the foregoing provisions of Part III of the Constitution of India, 1950. Article
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34 uses the term “martial law” without defining it. As per Dr. Durga Das Basu, the term
“martial law”, as used in Article 34, is being used in the sense of “a condition of affairs”
ll
rather than a „code of rules‟ which arise from a state of war, insurrection or rebellion in any
o
part of the country. When such situations of war, insurrection or rebellion entail, necessary
force may be used to restore peace, order and security; this force as such used is “martial
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law”. Three questions which Article 34 fails to answer are as follows: (a) Who can proclaim
the martial law; (b) Do the general powers of the executive include the power to proclaim
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martial law; (c) If martial law can come into existence without proclamation by the
a
Parliament, can the Indemnity Act be challenged in the court on the ground that the state of
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affairs did not justify the coming into force of martial law. Martial law as such has not been
invoked in India, since the commencement of the Constitution.
/e
Comment: The argument that the fundamental rights are claimed against the State, and the
State itself cannot be the beneficiary qua these rights, is meritorious and it finds explicit
m
mention in one of the decisions rendered by the West German Constitutional Court. The West
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German Constitutional Court in that case, affirmatively held that: “The basic rights,
according to their nature, were intended to protect the sphere of freedoms of the individuals
/
against encroachments by the State authority. Consequently, the State cannot be at one and
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Article 33 empowers the Parliament to restrict (or abrogate) the application of fundamental rights in relation to
Armed Forces, Para-Military Forces and the Police. See: Achudan v. Union of India, (1976) 2 SCC 780; Gopal
v. Union of India, AIR 1987 SC 413.
p
74
In the case of, A.D.M. Jabalpur v. S.S. Shukla, AIR 1976 SC 1207: (1976) 2 SCC 521: 1976 Cri LJ 945
tt
(Para 535), it was held that, Article 34 of the Constitution of India, 1950, is primarily concerned with granting
indemnity by law in respect of acts done during the operation of martial law. The Constitution does not have a
provision authorising proclamation of martial law. Declaration of martial law does not ipso facto result in
suspension of the writ of habeas corpus.
h
20
sff
ut
the same time, a party against which the basic rights were invoked and the party entitled to
exercise them”.75
Chapter V: Conclusive Remarks
_ S
se
With globalisation, liberalisation and privatisation touching the Indian shores, some scholars
entail and apprehend serious doubts qua the application and efficacy of fundamental rights in
to
India, principally on two counts: (1) With the increasing role of the private enterprise and
decreasing role of the State, fundamental rights would be violated more by the private
enterprises than by the State; (2) The private enterprise will claim for itself fundamental
N
rights as any other legal person, without been answerable qua their violation, as the State is
e
(ordinarily speaking) answerable.
ge
As regards to the first premise, it can be said that, merely by increasing the role of the private
ll
enterprise, the State cannot absolve itself from the responsibility of honouring and
safeguarding the fundamental rights of the citizens. Judicial wing of the State as the custodian
o
of the Constitution is enrobed with the responsibility to ensure that fundamental rights of the
citizens of the country are protected in all eventualities, even if it demands, taking an activist
C
view (salus populi est suprema lex). As regards to the second premise, it can be said that, the
w
decisions rendered by the Apex Court in the following two cases, M.C. Mehta v. Union of
India76 and Indian Council for Enviro-Legal Action v. Union of India77, are not only
L a
sufficient to deal with ensuing issue, but are also well reasoned and far-reaching. In M.C.
Mehta v. Union of India (supra), the question that came for adjudication before the Supreme
/e
Court was, whether or not, a private corporation (Shriram Food & Fertilizers Limited) was a
“State” within the purport of Article 12 of the Constitution of India, 1950? The Supreme
Court observed that, a non-governmental company can be placed within the periphery of
m
Article 12, if for reasons of State control and regulations (and the kind of public function the
.t
non-governmental company performs) it satisfies the agency vis-à-vis instrumentality test qua
the government. In Indian Council for Enviro-Legal Action v. Union of India (supra), it was
/
held that, if by actions of private corporate bodies, the fundamental rights qua individuals are
/
violated, then the court would not accept the argument that, it cannot proceed against them
:s
for the reason of such private corporate bodies not falling within the purport of Article 12 of
p
75
tt
See: Yearbook on Human Rights (1967), p. 109; [3 SCW 222]; Dr. Durga Das Basu, Commentary on the
Constitution of India, 8th Edition, Lexis Nexis, p.681
76
(1987) 1 SCC 395
77
(1996) 3 SCC 463
h
21
sff
ut
the Constitution of India, 1950. Purposive interpretation of the term „State‟ as contained in
Article 12 of the Constitution of India, 1950 is required, so that, the meaning of the term
S
„State‟ is inclusive and exhaustive, and is not exclusive and restrictive. This is required more-
_
so because protection of fundamental rights qua the citizens (and individuals in general)
se
stands, albeit in direct consequence of, the manner in which the term „State‟ is understood
and interpreted. What requires, thus, is a „beneficial construction‟ of the term „State‟ vis-à-vis
to
e N
ge
ll
o
w C
L a
/e
.t m
/ /
:s
tt p
h
22
sff
ut
Appendix: Analysing Judicial Pronouncements- Article 12 of the Constitution of India,
1950
S. No.
1.
Case Law Citation
Dasaaratha v. State of A.P., AIR 1961 SC
Ratio of the Case
_ S
The definition of „State‟ in Article 12 cannot
se
564 (569); Ranjit v. Union of India, AIR be used to interpret any provision outside Part
1969 Cal 95 (99) III of the Constitution of India, 1950, as for
example Article 311.
to
2. Mysore Paper Mills Ltd. v. AIR 2002 SC Mysore Paper Mills Ltd. was held to be an
Mysore Paper Mills 609: (2002) 2 instrumentality or agency of the State.
Officers Association SCC 167
3. Pradeep Kumar Biswas v. (2002) 5 SCC When the body is financially, functionally and
Union of India 111: 2002 (3) administratively dominated by or is under the
N
SCR 100 control of the government and such control is
particular to the body and is pervasive, then it
e
will be a „State‟ within the periphery of
ge
Article 12. If the control is merely regulatory,
it will not be a „State‟.
4. Central Inland Water AIR 1986 SC Central Inland Water Transport Corporation
ll
Transport Corporation v. 1371: (1986) Ltd. was held to be a State.
Brojo Nath Ganguly 3 SCC 156
5. Rajasthan State Electricity AIR 1967 SC Rajasthan State Electricity Board was held to
o
Board v. Mohan Lal 1857 be a State.
6. Railway Board, AIR 1972 SC It was held that, Railway Board is a State.
Government of India v. 1792: (1972)
C
Observer Publication (P) 2 SCC 266
Ltd.
7. Sukhdev Singh v. AIR 1975 SC Where the statutory corporations are the
w
Bhagatram Sardar Singh 1331: (1975) “voice and hands” of the Central Government,
Raghuvanshi78 they are „authorities‟ under Article 12 and
a
1 SCC 421
will be considered as „State‟.
„State‟ is an abstract entity. There is nothing
L
strange in the notion of State acting through a
corporation, thereby making it an agency or
/e
instrumentality of the „State‟.
8. Reserve Bank of India v. AIR 1976 SC Reserve Bank of India was held to be a „State‟
N.C. Paliwal 2345: (1976) within the meaning of Article 12 of the
4 SCC 838 Constitution of India, 1950.
m
9. All India Sainik Schools AIR 1989 SC Sainik Schools Society registered under the
.t
Employees Association v. 88: 1989 Societies Registration Act was held to be a
Sainik School Society (Supp-1) SCC „State‟ within the meaning of Article 12 of the
205 Constitution of India, 1950.
10. Zee Telefilms Ltd. v. Union (2005) 4 SCC In absence of any authorisation by State, if a
/
of India79 649 private body chooses to discharge public
function, which is not prohibited by law, it
/
would be incorrect to hold that the action of
:s
the body would make it an instrumentality of
the State.
p
78
A public authority is a body, which has public or statutory duties to perform, and which performs these duties
tt
and carries out its transactions for the benefit of the public and not for private profit.
79
In view of the majority view, it was held that the Board of Control of Cricket in India (BCCI) was not a
“State” or other authority and is not amenable to the writ jurisdiction under Article 32 of the Constitution of
India, 1950.
h
23
sff
ut
11. Francis John v. Director AIR 1990 SC Any private school receiving aid (or grants)
of Education 423: 1989 from the „State‟, is amenable to the writ
S
(Supp-2) SCC jurisdiction, more so when the Director of
598 Education (who is an instrumentality of the
_
State) is participating in the decision-making
process.
se
12. S.M. Ilyas v. Indian AIR 1993 SC Indian Council of Agricultural Research was
Council of Agricultural 384: (1993) 1 held to be a „State‟.
Research SCC 182
to
13. Pradeep Kumar Biswas v. (2002) 5 SCC Council of Scientific and Industrial Research
Indian Institute of 111 was held to be a „State‟.
Chemical Biology This case over-ruled the case of: Sabhajit
Tewary v. Union of India, (1975) 1 SCC 485.
14. Sheela Barse v. Secretary, AIR 1987 SC Children‟s Aid Society, Bombay was held to
N
Children’s Aid Society 656: (1987) 3 be a „State‟.
SCC 50
e
15. School of Buddhist (1990) 4 SCC Central Institute of Buddhist Studies was held
ge
Philosophy v. Makhan Lal 6 to be a „State‟.
Mattoo
16. Chander Mohan Khanna AIR 1992 SC NCERT is not a „State‟ within the sweep of
ll
v. National Council of 76: (1991) 4 Article 12 of the Constitution of India, 1950.
Educational Research and SCC 578
Training (NCERT)80
o
17. U.P. Financial AIR 1993 SC State Financial Corporation constituted under
Corporation v. Gem 1435: (1993) State Financial Corporation Act was held to
Capital (India) (P) Ltd. 2 SCC 299 be an instrumentality of the State.
C
18. Bhuri Nath v. State of AIR 1997 SC Shri Mata Vaishno Devi Shrine Board was
Jammu & Kashmir 1711: (1997) held to be a corporation not owned or
2 SCC 745 controlled by the State, hence, it was ruled
w
that, it is not within the periphery of Article
a
12 of the Constitution of India, 1950.
19. K. Krishnamachrayulu v. AIR 1998 SC When an element of public interest is created
Sri Venketeswara Hindu 295: (1997) 3 and the institution is catering to that element,
L
College of Engineering SCC 571 a writ petition was held to be maintainable,
although the institution was a private
/e
institution.
20. Balbir Kaur v. Steel AIR 2000 SC Steel Authority of India was held to be a
Authority of India 1596: (2000) „State‟.
6 SCC 493
m
21. Hyderabad Commercials AIR 1991 SC Nationalised Banks were held to be
instrumentalities of the „State‟.
.t
v. Indian Bank 247: 1991
(Supp-2) SCC
340
22. M.K. Agarwal v. Gurgoan AIR 1988 SC Regional Rural Banks established under the
/
Gramin Bank 286: 1987 Regional Rural Banks Act were held to be
Supp SCC „State‟ within the meaning of Article 12 of the
/
643 Constitution of India, 1950.
:s
23. Chairman, Prathama AIR 1989 SC An authority acting as an instrumentality or
Bank, Moradabad v. Vijay 1977 (1982) agency of the Government is a „State‟, within
Kumar the purport of Article 12.
tt p
80
Every autonomous body which has some nexus with government cannot be termed as „State‟. If the
government operates behind a corporate veil carrying out governmental activities and functions of significant
public importance, then only can it be termed as „State‟.
h
24
sff
ut
Regional Rural Banks, being under deep and
pervasive control of the Central Government,
S
having been established as the instrumentality
of the Government are „State‟ under Article
_
12.
24. U.P. State Co-operative AIR 1999 SC U.P. State Co-operative Land Development
se
Land Development Bank v. 753: (1999) 1 Bank was held to be an instrumentality of the
Chandru Bhan Dubey SCC 741 „State‟.
25. O.P. Bhandari v. Indian AIR 1987 SC Indian Tourism Development Corporation
to
Tourism Development 111: (1986) 4 was held to be covered by the definition of
Corporation Ltd. SCC 337: „State‟, as contained in Article 12 of the
1986 (II) LLJ Constitution of India, 1950.
509
26. Life Insurance AIR 1993 SC Life Insurance Corporation was held to be a
N
Corporation v. Manubhai 171: (1992) 3 „State‟.
D. Shah SCC 637
e
27. Workmen v. Food Corporation of India, Food Corporation of India, Hindustan Limited
ge
AIR 1985 SC 136: (1985) 2 SCC 136; Project and Equipment Corporation of India
Manmathanath Kayal v. Dt. Manager, Limited were held to be covered by the term
Food Corporation of India, AIR 1996 Cal “other authorities” albeit Article 12 of the
ll
316; Workmen v. Hindustan Steel Ltd., AIR Constitution of India, 1950.
1985 SC 251: 1984 Supp SCC 554; A.L.
Kalra v. Project & Equipment Corporation,
o
AIR 1984 SC 1361: (1984) 3 SCC 316
28. Tejinder Singh v. Bharat AIR 1987 SC Bharat Petroleum Corporation Ltd. was held
Petroleum Corporation 51: (1986) 4 to be covered under Article 12 of the
C
Ltd. SCC 237 Constitution of India, 1950.
29. Consolidated Coffee Ltd. AIR 1980 SC Coffee Board, Development Authority are
v. Coffee Board 1468: (1980) 3 covered by the definition of „State‟.
w
SCC 358
It was held that, Port Trust is a „State‟.
a
30. Dwarakadas Martatra & AIR 1989 SC
Sons v. Board of 1642: (1989) 3
Trustees, Port of Bombay SCC 293
L
31. R. Sarangapani v. AIR 1961 MadIt was held that, the Port Trust would fall
Madras Port Trust 234 (239) within the extended definition of the „State‟
/e
under Article 12 of the Constitution of India,
1950 because it would be a local authority.
32. Durai Raj v. Chairman Tamil Nadu It was held that, Tamil Nadu Housing Board
Housing Board, 2001 (4) CTC 620; is an authority under Article 12 of the
Housing Board v. Haryana Housing Board Constitution of India, 1950.
m
Employees Union, AIR 1996 SC 434:
.t
(1996) 1 SCC 95
33. ABL International Ltd. v. (2004) 3 SCC It was held that, Export Credit Guarantee
Export Credit Guarantee 553 Corporation of India is an instrumentality of
/
Corporation of India Ltd. State since it is discharging a public function/
duty.
/
34. ONGC v. Association of AIR 1990 SC It was held that, ONGC is a State.
:s
NGC Industries of 1851
Gujarat
35. General Manager v. AIR 2003 SC The real test to consider the status of the body
p
Kisan Sahkari Chini 4531: (2003) 8 is to see how far it is controlled by
tt
Mills Ltd. SCC 639 government and not the forms in which the
body is constituted.
h
25
sff
ut
36. Virendra Kumar (2005) 1 SCC It was held that, U.P. Rajya Karmachari
Srivastava v. U.P. Rajya 149 Kalyan Nigam Ltd. is a „State‟ falling within
S
Karmachari Kalyan the ambit of Article 12 of the Constitution of
Nigam India, 1950.
_
37. K.C. Sharma v. Delhi (2005) 4 SCC 4 It was held that, Delhi Stock Exchange is a
Stock Exchange State, falling within the ambit of Article 12 of
se
the Constitution of India, 1950. Earlier in the
case of Satish Nayak v. Cochin Stock
Exchange, AIR 1995 Ker 373, it was held
to
that, „stock exchange‟ is not an authority or
agency of the Government, since stock-
exchanges are totally independent of the
Government control and State does not lay
down policies for their functioning.
N
38. Federal Bank Ltd. v. AIR 2003 SC A private bank carrying banking business
Sagar Thomas81 4325: (2003) cannot be termed as an institution carrying on
e
10 SCC 733: statutory or public duty.
ge
2004 (I) LLJ
161
39. Sisham Raju v. State of AIR 2005 An educational institution which is not
ll
A.P. NOC 329 recognised, nor has applied for affiliation with
(AP): 2005 (3) any University and there is nothing to show
ALT 596 that the education imparted by the said
o
institution was covered by the term
“education” under the local Act, it would not
be „State‟ within the meaning of Article 12 of
C
the Constitution of India, 1950.
40. Kum Kum v. Principal, AIR 1976 Del It was held that, public office is one where the
Jesus & Mary College 35 powers and duties pertaining to the office
w
relate to a large section of the public. It was
therefore held that, Principal of a private
a
college is amenable to writ jurisdiction.
41. Ganapati National AIR 1996 SC Since the „State‟ cannot impart education by
L
Middle School v. M. 2803: (1996) 6 itself and the mandate under Article 45 of the
Durai Kanman SCC 464 Constitution is implemented through various
/e
agencies, which receive aid from the
government, such agencies are to be
construed as „State‟ within the sweep of
42. Tekraj v. Union of India AIR 1988 SC A Society to be “State” should undertake
m
469 (481) Government business or perform public
.t
obligation of the State. The Institute of
Constitutional and Parliamentary Studies, not
being an agency or instrumentality of the
/
State, is not a „State‟.
43. Jagveer Singh v. 2000 AIHC Even though a Co-operative Society cannot be
/
Chairman Co-operative 294 (All) termed as „State‟ under Article 12 of the
:s
Textile Mills Ltd. Constitution, having regard to the „public
nature of their functions‟, a writ could be
issued against them under Article 226.
p
81
tt
It was held that merely because, the Reserve Bank of India is laying down banking policy for the purpose of
sound banking growth under Section 5(c a) of the Banking Regulation Act, which the private banking company
is bound to obey, will not make the private bank as discharging a public duty. The directions of Reserve Bank of
India are only regulatory in character.
h
26
sff
ut
44. State of Uttar Pradesh v. (2009) 5 SCC It was held that, Uttar Pradesh Ganna Kisan
Radhey Shyam Rai 577 Sansthan is „State‟ within the purport of
S
Reasoning adopted by the Apex Court was
_
two-fold: (a) State exercised pervasive control
over the affairs of the Sansthan82; and (b)
se
Sansthan was required to obey, all directions
of the State Government.
45. State of Bihar v. Union of India, (1970) A statutory corporation would not be regarded
to
I.S.C.C. 67 (75); Agarwal v. Gurgaon as „State‟ for the purposes of Article 131 or
Bank, AIR 1988 SC 286; Municipal 311, unless it acts as a „State Agency‟.
Council v. Rajkumar, (2006) 3 SCC 81
46. M. Kumar v. Bharat Earth Movers Ltd., A government company carrying on
N
AIR 1999 Kant 343; Muhammad Anwar v. commercial activities, incorporated under the
State of J & K, AIR 1967 J & K 32 Companies Act which does not have any
e
power of making rules or regulations binding
ge
as law, nor has the power to administer or
enforce such rules or regulations is not an
authority under Article 12. The word
ll
“authority” includes Central Government and
State Government.
47. Sree Kant Udyog v. AIR 1998 All 42 If an entity is not more than a company under
o
Union of India the Companies Act, or society under the law
relating to Registration of Societies, it cannot
be called „other authority‟ within the import
C
of Article 12 of the Constitution of India,
1950. However, when a corporation is
performing some public duty and is not
w
merely carrying on commercial activities, it
can be considered as a State.
a
48. Tarsem Singh v. AIR 2004 P&H 156 It was held that, Bharat Sanchar Nigam
BSNL Limited (BSNL) is a State within the import
L
of Article 12 of the Constitution of India,
1950, for the reason that all assets of
/e
Department of Telecommunication along with
all the necessary liabilities were transferred to
BSNL and more-so-over all employees except
that of „Group A‟ and „Group B‟ were
absorbed by the new company, post its
m
coming into existence.
.t
49. Swapan Kumar Das AIR 1990 NOC 129 It was held that, Rashtriya Lalit Kala
v. Secretary, Lalith (Cal) Academy is not a State within the meaning of
Kala Academy Article 12 of the Constitution of India, 1950,
/
since there is neither exercise of deep and
pervasive control by the Government over it,
/
and nor does Rashtriya Lalit Kala Academy
:s
performs any kind of Governmental functions.
50. Corporation of AIR 1985 Bom 498 A local authority having a legal grievance
Nagpur v. N.E.L. & may be able to take out a writ.
p
P. Co.
tt
82
Cane Commissioner was at the helm of the affairs of the Sansthan; Accounts Officer was the officer of the
State Government; and Majority of the Members of the Governing Body, were holders of different offices in the
State Government.
h
27
sff
ut
51. Jothi & Company v. AIR 1994 Mad 50 It was held that, merely because the
T.N. Pollution Government paid subsidy to the extent of
S
Control Board 25% for establishing a common effluent
treatment plant, the private limited company
_
which established the plant will not be
construed as a State.
se
52. Unnikrishan v. State AIR 1993 SC 2178 It was held that, a private educational
of Andhra Pradesh institution does not becomes an
instrumentality of the „State‟ within the
to
purport of Article 12 of the Constitution of
India, 1950, merely because of the fact that it
had received recognition (or affiliation) from
the State. However, it will be so, if it
discharges a public-duty, viz., imparting
N
education, which is the purpose of the State.
53. Bidi Supply Co. v. AIR 1956 SC 479 The „State‟ includes its Income Tax
e
Union of India (484) Department.
ge
54. State of West Bengal (1964) 1 SCR 371 It was held that under the Constitution of
v. Union of India (430) India, 1950, fundamental rights can be
claimed not only by the individuals and the
ll
corporations, but sometimes also by the State.
Miscellaneous Ramkishore v. Union AIR 1966 SC 644 The word State includes a Union Territory
of India (648) (Article 3, The Constitution of India, 1950)
o
Miscellaneous Supreme Court AIR 1994 SC 268 The expression “the State” used in Article 50
Advocates on Record (318) of the Constitution of India, 1950 has to be
Association v. Union construed in the distributive sense as
C
of India including the Government and the Parliament
of India, and the Government and the
Legislature of each State, and all local or
w
other authorities within the territory of India
a
or under the control of the Government of
India.
Miscellaneous State of Rajasthan v. AIR 1977 SC 1361 The word „State‟ in Article 131 of the
L
Union of India (1431) Constitution of India, 1950 contemplates a
State as a consistent unit of the Union along
/e
with its territory and permanent institutions.
.t m
/ /
:s
tt p
h
28
sff
ut
Bibliography:
S
Primary Sources:
1. The Constitution of India, 1950
_
2. The General Clauses Act, 1897
se
3. The Foreign Jurisdiction Act, 1947
4. The Coal Bearing Areas (Acquisition and Development) Act, 1957
5. The State Financial Corporations Act, 1951
to
6. The State Bank of India Act, 1955
7. The Madhya Pradesh Cooperative Societies Act, 1960
8. The Tamil Nadu Registration of Societies Act, 1975
9. The U.K. Sex Discrimination Act, 1975
10. The Constitution (Forty Fourth Amendment) Act, 1978
N
Secondary Sources:
e
1. Bryce, Studies in History and Jurisprudence, Volume II, p.53
2. Machiavelli, The Prince, Volume XXXVI, Part 1, Harvard Classics, P.F. Collier & Sons,
ge
(1909-1914)
3. Jean Bodin, Six Books of the Commonwealth, (République, I, 8 [Mc] 84), Du Puys, Paris
(1576)
ll
4. Paul Kleinman, Philosophy 101, Adams Media Publication, 2013, p. 101-102
5. John Austin, The Province of Jurisprudence Determined, Volume I, John Murray Publishers
(1832), p. 220-221
o
6. A.C. Dicey, The Law of the Constitution, Elibron Classics (2000)
7. Black‟s Law Dictionary, Sixth Edition (Centennial Edition 1891-1991), p. 1407
8. Dr. Adish C. Aggarwala, Constitution of India, Amish Publications, 4th Revised Edition, p.42
C
9. Dr. Durga Das Basu, Commentary on the Constitution of India, 8th Edition, Lexis Nexis
10. P.M. Bakshi, Constitution of India, Universal Law Publishing Co., Eighth Edition (2007), p.
10
w
11. Yearbook on Human Rights (1967), p. 109; [3 SCW 222]
L a
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.t m
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tt p
h
29

Article 12 Defining The Term STATE

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Chapter I- Definitional Analysis:

Chapter II- Tests for the Determination of ‘State’:

instrumentality of the State.

Chapter III: Whether ‘State’ includes ‘Judiciary’?

Chapter V: Conclusive Remarks

46. M. Kumar v. Bharat Earth Movers Ltd., A government company carrying on

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