Article 12 of The Constitution of India

About Part III
Part III of our constitution consists of a long list of fundamental rights, it starts right from article 12 to article 35. This chapter has been very well described as the Magna carta of India, for magna carta was not merely a document signed by King John but a symbol of assertion of individual rights. It reflects the awakening of the people in face of oppressive systems like monarchy and tells us that individuals when fortified with rights and freedoms can bring about a great change.

The purpose behind having our fundamental rights, rests in the need for having a just society i.e a nation ruled by law and not by a tyrant. Rule of one man only leads to eventual resentment amongst the citizenry as maker, executor and interpreter of law is the same man. Moreover, in case of a infringement of human rights of an individual by the abuse of state power, he will have no option but to suffer because there’s just no hope for relief in a tyranny. This is the rationale which led to Montesquieu developing the theory of separation of powers and the same is imbibed in our constitution by virtue of Article 50. So, lets delve deeper into the shield which protects us from abuse of powers by the state itself.
 

The Concept of State and Article 12 of the Constitution of India

The law dictionary defines “state” as :-
A body politic, or society of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their combined strength. Individuals need constitutional protection from the acts of the state itself. Fundamental rights protection is available against the state only as ordinary laws are sufficient enough to protect infringement of rights by individuals. With great powers comes a greater risk of abuse and in order to safeguard rights and freedom of individuals so that men in power do not trample upon them. However, in order to delve deeper into the concept it is firstly imperative to explore the definition of “state”.
 

Article 12 defines state in the following manner:

In this part unless the context otherwise requires, “the State” includes
1. The Government and Parliament of India
2. The Government and Legislature of each of States
3. Local Authorities or
4. Other Authorities
Within the territory of India or under the control of Government of India.
 

The Government and Parliament of India

The term points to Union executive and legislature. This phrase can be understood by simple observation, whenever Parliament passes a bill and it gets the assent and is brought into force as an “act” it is a function of the central legislature. Whenever any “act” whether as a whole or in part infringes upon fundamental rights of an Individual, it is challenged before the Judiciary and then the same is left to Judicial scrutiny. As we have seen in the celebrated case of Shreya Singhal v. Union of India AIR 2015 SC 1523 , Section 66A was challenged before the Hon’ble Apex Court as being in violation of Article 19 and on the same basis was struck down and declared ultra vires. Now, Information Technology Act, 2000 is a Central Law passed by Union legislature and therefore being a “state” it could not be allowed to violate fundamental rights.
 

Government and Legislature of the States

This phrase indicates that acts of State legislature or Executive will also not be beyond reproach and any State act, order, rule etc. which leads to infringement of rights of an individual shall be safeguarded.

Local authorities
Authorities like Municipality, District Boards etc. all come under the scope of local authorities and remedy against them can be sought by an individual. The bye-laws that a Municipal committee makes are all under the definition of Law under Article 13 and can be challenged on basis of violation of a fundamental right. The reference to local authorities has been given in the General Clauses act, 1897 and it would be pertinent to analyse the same briefly.

A proper and careful scrutiny of Section 3(31) suggests that an authority in order to be a local authority, must be of like nature and character as a municipal committee, District Board or Body of Port commissioners, possessing therefore, many, if not all, of the distinctive attributes and characteristics of those bodies, but possessing one essential feature namely, that it is legally entitled to or entrusted by the government with the control and management of a local fund.

Other authorities
Now, coming to the most disputed and discussed phrase of all article 12 i.e “other authorities”. It is pertinent that the evolutionary process of this concept is discussed in order to understand it better.
1. Earlier, a Restrictive interpretation was given to this term and the principle of ejusdem generis or things of like nature was applied and this meant that authorities exercising governmental or sovereign function would only be covered under other authorities.( University of Madras v. Santa bai AIR 1954 Mad. 67)

2. The liberal interpretation came when the Apex court in Ujjambai v. State of U.P AIR 1962 SC 1621 rejected the interpretation on the basis of ejusdem generis and held that no restriction can be assigned to the interpretation of the term. In Electricity Board v. Mohan lal AIR 1967 SC 1857, it was opined that it is not necessary for an authority to be engaged in sovereign or governmental function to come under the definition and said that State Electricity Board of Rajasthan would come under definition of “State”. Sukhdev Singh v. Bhagatram AIR 1975 SC 1331 followed the same test and held that LIC,ONGC and IFC all come under “other authorities”.

3. The breakthrough however, came with R.D Shetty v. Airport Authority of India which gave us the 5 Point test as propounded by Justice P.N Bhagwati. This is a test to determine whether a body is an agency or instrumentality of the state and goes as follows –
1. Financial resources of the State is the Chief funding source i.e. the entire share capital is held by the government.
2. Deep and pervasive control of the State
3. Functional character being Governmental in its essence, meaning thereby that its functions have a public importance or are of a governmental character
4. A department of Government transferred to a corporation
5. Enjoys Monopoly status which is State conferred or protected by it.

This was elucidated with the statement that the test is only illustrative and not conclusive in its nature and is to be approached with great care and caution.

In Ajay Hasia v. Khalid Mujib Sehravardi AIR 1981 SC 487 ,It has been held that whether a statutory body falling within the purview of the expression “other authorities” is to be considered differently. In the opinion of minority, the tests laid down in this case are relevant only for the purpose of determining whether an entity is an “instrumentality or agency of the State”.

Whether BCCI is a State or not?
Due to this question surfacing frequently in LLB Exams, it has to be dealt with separately. The relevant Judgement in this regard is Zee Telefilms v. Union Of India AIR 2005 SC 2677 as BCCI isnot created by a statute, not dominated by government either financially, functionally or administratively. Hence,it cannot be called a State as under Article 12 of The Constitution.

Whether Judiciary would be included in the definition of State or not?
The Judiciary is not expressly mentioned in the Article 12 and a great amount of dissenting opinions exist on the same matter. Bringing Judiciary entirely under Article 12 causes a great deal of confusion as it comes with an attached inference that the very guardian of our fundamental rights is himself capable of infringing them. Perhaps with the help of relevant judgments this can be better understood :

However, in Rupa Ashok Hurra v. Ashok Hurra AIR 2002 SC 1771 the Apex Court reaffirmed and ruled that no judicial proceeding could be said to violate any of the Fundamental rights and that it is a settled position of law that superior courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12.

This leaves with us with the rationale that a Superior Judicial body when acting “Judicially” would not fall under the definition of State but when it performs any administrative or similar functions e.g conducting examination, it will fall under the definition of “state” and that remedy could be sought in that context only in case of violation of fundamental rights.