ARTICLE 12

INTRODUCTION
The Constitution of India has defined the word State

for the purpose of Part III and Part IV .In State of West Bengal v/s Subodh Gopal Bose , the Supreme Court observed that the object of Part III is to provide protection to the rights and freedoms guaranteed under this part by the invasion of State.

Definition of State Art. 12

Article 12 deals with the Definition of the word

State. It says, 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.

ANALYSIS OF ARTICLE 12
State as provided under Article 12 of the Constitution has four components: a) The Government and Parliament of India- Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States b)

The Government and Legislature of each State- State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them.

Local Authorities within the territory of India - Authority means Power to make rules, bye- laws, regulations, notifications and statutory orders. ii. Power to enforce them. Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund.
c) i. a) i. ii.

Other Authorities - Authorities other than local authorities working Within the territory of India or; Outside the territory of India.

Test To Determine The State

To give a wider dimension to Fundamental Rights, the

judiciary has interpreted State in different contexts at different times.

Principle of Ejusdem generis - In University of

Madras v/s Santa Bai AIR 1954 Mad. 67, the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression other authorities which perform governmental or sovereign functions.

Test To Determine The State

But in Ujjam Bai v/s Union of India AIR 1962 SC 1621,

the Supreme Court rejected the principle of ejusdem generis. It observed that there is no common genus between the authorities mentioned in Article 12.

Test To Determine The State

Performance

of commercial activities ; or promotion of educational or economic interestsIn Rajasthan State Electricity Board v/s Mohan Lal AIR 1967 SC 1857, it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It shouldi. Be created by the Constitution of India; ii. Have power to make laws. Therefore, as per this decision, the Rajasthan State Electricity Board was considered to be State within the meaning of the words other authorities mentioned under Art. 12 of the Constitution.

Test To Determine The State

Performance

of functions very close to governmental or sovereign functions - In Sukhdev v/s Bhagatram AIR 1975 SC 1331, LIC (Life Insurance Corporation), ONGC (Oil and Natural Gas Commission) and IFC (Industrial Finance Corporation) were held to be State as performing very close to governmental or sovereign functions. The Corporations are State when they enjoy: i. Power to make regulations; ii. Regulations have force of law.

Test To Determine The State

Clearance of five tests - In R.D.Shetty v/s International Airport

Authority of India AIR 1979 SC 1628 (Popularly known as Airport Authoritys case), it was held that if a body is an agency or instrumentality of government, it may be an authority within the meaning of Article 12 whether it is a statutory corporation, a government company or even a registered society. The Court laid down five tests to determine whether a body is an agency or instrumentality of the governmenta) Entire share capital is owned or managed by State. b) Enjoys monopoly status. c) Department of Government is transferred to Corporation. d) Functional character governmental in essence. e) Existence of Deep and pervasive State control. Therefore, it was held that the International Airport Authority which has been created by an Act of Parliament is the State within the meaning of Article 12 of the Constitution of India.

Test To Determine The State

Object of Authority - In Ajay Hasia v/s Khalid Mujib

AIR 1981 SC 487, the Court observed that the test to know whether a juristic person is State, is not how it has been brought but why it has been brought. Therefore, a society registered under the Societies Registration Act, 1898, is an agency or instrumentality of the State and hence, a State within the meaning of Article 12.

Test To Determine The State

Clearance of Six tests - In Union of India v/s R.C.Jain AIR 1981 SC 951; [1981] 2 SCC 308 , the question involved was whether the Delhi Development Authority (DDA) constituted under the Delhi Development Act, 1957, is a "local authority". Chinnappa Reddy J., speaking for the Bench, laid down that: "An authority, in order to be a local authority, must be of like nature and character as a municipal committee, district board or and characteristics of a municipal

committee, district board or viz., that it is legally entitled to or entrusted by the Government with the control and management of a municipal or local fund". The learned judge elaborated the said test saying that To be characterised as a "local authority, an authority must fulfill the following tests: i. Separate legal existence as a corporate body ii. Legally Independent Entity iii. Function in a defined area. iv. Has power to raise funds. v. Enjoys a certain degree of autonomy. vi. Entrusted by a statute with functions which are usually entrusted to municipalities such as those connected with providing amenities to the inhabitants of the locality like health and education, water and sewerage, town planning and development, roads, markets, transportation, social welfare services, etc. Therefore, the Delhi Development Authority is a local authority within the meaning of Art. 12 of the Constitution.

Test To Determine The State

In the case of M.C. Mehta v Sriram Fertilizers

Corporation Ltd. 1987 (1) SCC 395, keeping the Bhopal Gas Tragedy in its view, was considering whether an industrial unit said to be hazardous should be closed. The court said the a hyper technical approach could not be adopted so as to defeat the ends of justice. The court stated that the reason for deliberately expanding the ambit of article 12 is primarily due to the social consequence of our corporate structure. The court proceeded to give further reasons on account of which the ambit of article 12 need to be enlarged so as to bring private companies also under the discipline of fundamental rights.

Test To Determine The State

In the case of J.P. Unni krishnan v. State of Andhra

Pradesh 1993 (1) SCC 645, the court has subjected private educational institutions to the discipline of article 14 on the ground that they were performing a function in furtherance of a state function, that is, the provision for education.

Test to determine the State

In Mysore Paper Mills Ltd. Vs. Mysore Paper Mills

Officers' Association, AIR 2002 SC 609, the Hon'ble Apex Court re-examined the issue and held that if a
company is owned by the Government and the State Government has deep and pervasive control over its day to day administration and it is entrusted with public duty; its Directors are nominee of the State Government or of the financial institutions; or are elected by the concurrence of the State Government, it has to be held to be other authority within the meaning of Article 12 of the Constitution, though it may be a company registered under the provisions of the Companies Act, 1956.

Test to determine the State

In Pradeep Kumar Biswas v. Indian Institute of Chemical

Biology (2002) 3 SCR 100, it was held that Council for Scientific and Industrial Research (CSIR) is not the State within the meaning of Article 12 of the Constitution as it is not a society owned or controlled by the Government. The Apex Court further observed, The CSIR is not the offspring or the blood and bones or the voice and hands of the government. The CSIR does not and cannot make lawHowever, the Prime Minister of India is the President of the society. Some of the members of the society and of the governing body are persons appointed ex-officio by virtue of their holding some office under the Government also...A mere governmental patronage, encouragement, push or recognition would not make an entity 'the State'.

Test To Determine The State

In Zee Telefilms Ltd. v. Union of India 2005 (4) SCC

649, the court by a majority of 3 to 2 declined to accept Board of Control for Cricket in India (BCCI), a society registered under the Tamil Nadu Societies Registration Act, 1975, as the State under article 12.

Whether Judiciary is State U/A 12

Jurists like H.M.Seervai, V.N.Shukla consider judiciary to be State. Their view is supported by Articles 145 and 146 of the Constitution of India. i. The Supreme Court is empowered to make rules for regulating the practice and procedure of Courts. ii. The Supreme Court is empowered to make appointments of its staff and servants; decide its service conditions. Other jurists say that since judiciary has not been specifically mentioned in Article 12, it is not State. In Prem Garg v/s Excise Commissioner, H.P. AIR 1963 SC 996, the Supreme Court held that when rule making power of judiciary is concerned, it is State. In Rati Lal v/s State of Bombay , it was held that judiciary is not State for the purpose of Article12.

In A.R.Antulay v/s R.S.Nayak AIR 1988 SC 1531 and N.S.Mirajkar v/s State of Maharashtra AIR 1967 SC 1, it has been observed that when rule making power of judiciary is concerned, it is State but when exercise of judicial power is concerned it is not State.