Article 12: State (Definition of State)

ARTICLE 12: DEFINITION OF STATE
“In this part, unless the context otherwise requires, “the
State” includes the Government and Parliament of India
and the Government and the Legislature of each of the
States and all local or other authorities within the territory
of India or under the control of the Government of India.”
Article 226: Power of High Courts to issue certain writs:
“(1) Notwithstanding anything in Article 32, every High
Court shall have powers, throughout the territories in
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.”

A.V. DICEY: THE LAW OF THE CONSTITUTION
(2000)
 Legislature (i.e., Parliament) is the supreme law making
body.
 Behind legal sovereign, there is political sovereign which
is the electorate.
 The legal sovereign has to act in accordance with the
political sovereign.
 As per A.V. Dicey, the test to determine, whether or not, a
person or a body is a legal sovereign, is to see, whether
or not, it possesses the power to make or unmake the
laws.

DEFINITION OF STATE
 “A people permanently occupying a fixed territory
bound together by common-law habits and custom
into one body politic exercising, through the
medium of an organised government independent
sovereignty and control over all persons and things
within its boundaries, capable of making war and
peace and entering into international relations with
other communities of the globe.” (See: United
States v. Kusche, D.C. Cal., 56 F. Supp. 201, 207,
208)

DEFINITION OF STATE
 The term ‘State’ may be defined as, the organisation of social life
which exercises sovereign power in behalf of the people. (Delany v.
Moraitis, 136 F. 2d 129, 130)
 The term ‘State’ may be defined as a body politic or a society of men.
(Beagle v. Motor Vehicle Acc. Indemnification Corporation, 44
Misc. 2d 636)
 The term ‘State’ may be defined as a body of people occupying a
definite territory and politically organised, under one government.
(State ex. rel. Maisano v. Mitchell, 231 A. 2d 539, 542)
 The term ‘State’ has within its sweep governmental agencies
authorised by the State, such as municipal corporations. (Black’s Law
Dictionary, Sixth Edition)

DEFINING “STATE”: INDIAN CONTEXT
 The body politic as organised for supreme civil rule and
government. (Section 3 (58) of the General Clauses Act,
1897; Article 3 (Explanation I), Constitution of India, 1950)
 The word ‘government’ is to include ‘departments of the
government’.
 An ‘Act of State’ is wide enough to encompass ‘executive
orders’ of the government or a department or of any
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’.

 The term ‘State’ includes: Central Government and State
Governments; Parliament and State Legislatures; Local
Authorities; and Other Authorities, within the territory of India, or
under the control of the Central Government.
 Even though a ‘body of persons’ may not constitute ‘State’ within
the instant definition (Article 12), a writ petition under Article 226
of the Constitution may lie against it, either on constitutional
grounds, or on grounds of contravention of some provisions of
the Constitution outside the ambit of Part III of the Constitution,
as for example, where such a body has public duty to perform, or
where its acts are supported by the State or public officials.
(Kartick v. W.B.S.I.C., AIR 1967 Cal 231)

ANDI MUKTA SADGURU V. V.R. RUDANI, (1989) 2
SCC 691
 Article 226 confers wide powers on High Courts to issue
writs in the nature of prerogative writs. This is a striking
departure from the English Law. Under Article 226, writs can
be issued to “any person or authority”.
 The term “authority” used in Article 226 must receive a
liberal meaning unlike in context it receives under Article 12,
which is relevant only for the purpose of enforcement of
fundamental rights under Article 32.
 Article 226 confers power on the High Courts to issue writs
for enforcement of fundamental rights as well as non-
fundamental rights.

ANDI MUKTA SADGURU V. V.R. RUDANI, (1989) 2
SCC 691
 The words “any person or authority” used in Article 226
are- not confined only to statutory authorities and
instrumentalities of the State. They may cover any other
person or body performing public duty.
 Form of the body is not relevant; nature of duty imposed
on the body is relevant.

TESTS FOR THE DETERMINATION OF ‘STATE’
 Underlining Principle: ‘Functional, Financial and Administrative Domination’
coupled with ‘Deep and Pervasive Control’.
 In Ajay Hasia v. Khalid Mujib Sehravardi (AIR 1981 SC 487), the
Constitution Bench of the Apex Court relied upon the ‘test’ formulated in
the case of R.D. Shetty v. International Airport Authority of India (AIR
1979 SC 1628)
 In Pradeep Biswas v. Indian Institute of Chemical Biology, (2002) 5
SCC 111, Seven Judges Bench of Supreme Court held:
(a). Test formulated in Ajay Hasia is not rigid in principle that needs to be
complied with in all cases without exception.
(b). All cases are to be determined in the light of their specific cumulative
facts, to see, financial, functional and administrative domination coupled
with the government control. Control should not be perfunctory, but should
be deep and pervasive.

 Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC
649:
It was held that, functions or duties of a public nature
performed by a body not prohibited by law does not
make the body “State” for the purposes of Article 12. It
was held that BCCI is not a State within the purport of
Article 12.
 Board of Control for Cricket in India v. Cricket
Association of Bihar, (2015) 3 SCC 251: It was held
that-
 BCCI is amenable to writ jurisdiction under Article 226
of the Constitution;
 BCCI’s control over the sport of cricket in India is
deep and pervasive, it enjoys a monopoly status in
the game of cricket in India;

 Owing to the doctrine of fairness and good faith, BCCI
has a huge responsibility at its peril to discharge, that
is, to look after the sport of cricket in India;
 BCCI is a private body formed under the Tamil Nadu
Registration of Societies Act, 1975, it is subject to the
writ jurisdiction of the Constitution vide Article 226, with
little regards to the fact that it is not financially,
functionally or administratively dominated by the
Government.

LOCAL AUTHORITIES
 Section 3(31), General Clauses Act, 1897: “local authority
shall mean a municipal committee, district board, body of
port commissioners or other authority legally entitled to, or
entrusted by the government with the control or
management of a municipal or local fund.”
 Municipal Corporation of Delhi v. Birla Cotton,
Spinning & Weaving Mills, Delhi (AIR 1968 SC 1232):
‘Local Bodies are subordinate branches of governmental
activity…They are political sub-divisions and agencies
which exercise a part of State functions…As they are
intended to carry on local self-government…they function
under the supervision of the government’.

 To be characterised as an ‘authority’ within the sweep of ‘local
authority’, it should the following attributes:
 It must have a separate legal existence as a corporate body;
 It must not be mere government agency but must be legally an
independent entity, functioning in a defined area;
 It must enjoy a certain degree of autonomy;
 It must have power to raise funds for furtherance of its
activities. (Union of India v. R.C. Jain, AIR 1981 SC 951)
 Local Authorities- has within its sweep- Municipalities, District
Boards, Panchayats, Improvement Trusts, Port Trusts and
Mining Settlement Boards.
(Rashid Ahmed v. M.B. Kairana, AIR 1950 SC 163; State of
Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634)

STATUTORY BODIES
 Carrying out activities in the nature of trade and commerce
cannot oust a statutory body established under an Act from the
definition of State under Article 12 of the Constitution of India,
1950 (Rajasthan Electricity Board v. Mohanlal, AIR 1967 SC
1857)
 Sukhdev v. Bhagatram (AIR 1975 SC 1331): It was held that,
Life Insurance Corporation, Oil and Natural Gas Commission
and the Financial Corporation are statutory bodies within the
meaning of Article 12.
 Whether or not a body corporate is a ‘State’ does not depends
on its origin in the statutory sense but on the basis of ‘functional
aspects’ qua the body corporate. The test is that of “brooding
presence of the State behind the operations of the body,
whether statutory or not.” (Som Prakash Rekhi v. Union of
India, AIR 1981 SC 212)

 Madhya Pradesh Cooperative Dairy Federation Limited
v. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221:
 Federation in the present case was a ‘federal society’
registered under the Madhya Pradesh Cooperative
Societies Act, 1960.
 Federation undertook the work of not just research and
training but also monitoring of other such societies
established under it, as an Apex Body.
 Guidelines issued by the Federation were binding on the
societies established under it.
 The Court held that, the Federation carries out not only
commercial activities, but also works for achieving- better
economic development and public health; it caters to the
spirit of Article 47.

 It was concluded by the court that, by virtue of the
operations carried out by the Federation, it can be termed
as an agency or instrumentality of the State.
 Dalco Engineering (P) Ltd. v. Satish Prabhakar, (2010)
4 SCC 378:
 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 standard
meaning.
 This terminology makes reference to “statutory
corporations” as contrasted from “non-statutory
companies”.

 An attempt to include private sector within the purport of
this terminology will amount to the over-ruling of the clear
enunciation in S.S. Dhanoa v. Municipal Corporation of
Delhi, (1981) 3 SCC 431.
 It was further held that, 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.
 Statutory corporations, no doubt owe their existence to
legislative enactments but nonetheless, they are
incorporated (or registered) under the Companies Act.

AUTHORITIES SITUATED OUTSIDE INDIA
 The words, “…or under the control of the Government of
India” appearing in Article 12 are to be read as “…all local
or other authorities within the territory of India or all local
or other authorities under the Control of the Government of
India…”. (Ramamurthy v. Chief Commissioner, AIR
1963 SC 1464; Masthan Sahib v. Chief Commissioner,
AIR 1963 SC 533)
 Where the control of the Government of India extends to
an authority outside India, the Superior Courts in India can
exercise their ‘Constitutional Jurisdiction’ over the acts of
such administrative authorities by passing suitable orders.

 Lena Khan v. Union of India, (1987) 2 SCC 402: It was
held that, an instrumentality or agency of the State having
operations outside India cannot comply with municipal law
as prevailing abroad, which is, in violation of the provisions
of the Constitution of India, 1950.

WHETHER ‘STATE’ INCLUDES ‘JUDICIARY’?
 Position in the United States:
 Virginia v. Rives, (1880) 100 U.S. 313: “It is doubtless
true that a State may act through different agencies- either
by its legislative, its executive, or its judicial authorities;
and the prohibitions of the Amendment (Fourteenth)
extend to all actions of the State denying equal protection
of laws, whether it be action by one of these agencies or
by another.”
 Ex parte Virginia, (1880) 100 U.S. 339 (347): “A State
acts by its legislative, its executive, or its judicial
authorities; it can act in no other way.”

 Shelly v. Kraemer, (1948) 334 U.S. 1: It was held 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.
 Rogers v. Richmond, (1961) 365 U.S. 534: It was held
that:
“If decision of the 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 guaranteed by a written Constitution, it becomes
constitutionally invalid.”

 The prevailing position that entails in the United States is
this:
“A conviction will fall (or 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.”

 Position in India:
 Naresh Shridhar Mirajkar v. State of Maharashtra,
(1966) 3 SCR 744: It was held as follows-
• It is singularly in-appropriate to assume that a judicial
decision pronounced by a judge of competent
jurisdiction in or in relation to a matter brought before
him for adjudication can affect the fundamental rights
of the citizens.
• Whether the findings of fact recorded by the judge are
right or wrong, and whether the conclusion of law
drawn by him suffers from any infirmity can be
considered and decided if the party aggrieved by the
decision of the judge takes the matter up before the
appellate court.

 Independence of judiciary is an essential part of the
basic structure doctrine. (Kesavananda Bharti v.
State of Kerala, (1973) 4 SCC 225)
 “The judiciary stands 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)
 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531: It
was 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.

 State of Bihar v. Bal Mukund (AIR 2000 SC 1296): It was
held that, the High Court is an ‘authority’ within the purport
of Article 12 and its administrative decision is amenable to
its writ jurisdiction on the judicial side.
 Riju Prasad v. State of Assam, 2015 SCC Online SC 613:
It was held as follows:
“The definition of ‘the State’ under 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, omission of
judiciary when the Government and Parliament of India as
well as Government and Legislature of each State has
been included is conspicuous but not conclusive that
judiciary must be excluded.”

CONCLUSION:
 Meaning of the term ‘State’ as contained in Article 12 is
inclusive and exhaustive, and is not exclusive and
restrictive.
 A non-government company can be placed within the
periphery of Article 12, if for reasons of State Control
and Regulations it satisfies the agency- instrumentality
test. (M.C. Mehta v. Union of India, (1987) 1 SCC
395)
 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 for the reason of such private
corporate bodies not falling within the purport of Article
12. (Indian Council for Enviro-Legal Action v. Union
of India, (1996) 3 SCC 463)

Article 12: State (Definition of State)

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