Article 12 of the Constitution of India

Article 12 of the Constitution of India: Defining the Ambit of "State" for Fundamental Rights Enforcement

Introduction

Article 12 of the Constitution of India is a cornerstone provision within Part III, which enumerates the Fundamental Rights. It defines the term "State" for the purpose of this Part, thereby delineating the entities against which these fundamental rights can be enforced. The interpretation of Article 12, particularly the phrase "other authorities," has been a subject of extensive judicial scrutiny, leading to a dynamic and expansive understanding of what constitutes "State." This article seeks to analyze the scope and judicial evolution of Article 12, drawing upon landmark pronouncements of the Supreme Court of India and various High Courts, and the principles established therein.

The significance of Article 12 lies in its role in ensuring constitutional protection for individuals against actions of entities that exercise public power or perform functions akin to governmental functions (*Abdul Gofur Mondal v. State Of Assam And Ors., 2015*). As observed by the Supreme Court, Part III, which provides for fundamental rights, is the most important chapter concerning individuals and citizens, and Article 12 defines "the State" for the purposes of this Part (*Dropti Devi And Another v. Union Of India And Others, 2012*).

The Text and Scope of Article 12

Article 12 of the Constitution of India reads as follows:

"12. Definition.—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."

The definition explicitly includes:

  • The Government and Parliament of India.
  • The Government and the Legislature of each of the States.
  • All local authorities (e.g., municipalities, district boards).
  • All "other authorities" within the territory of India or under the control of the Government of India.

It is crucial to note that this definition is specifically for the purposes of Part III of the Constitution and does not extend, for instance, to Part XIV, which deals with services under the Union and the States (Articles 309, 310, and 311) (*Organizer, Dehri C.D. & C.M. Union Limited v. State Of Bihar, 2014*; *Indian Institute Of Chemical ... v. Indian Institute Of Chemical, 2002*; *Pradeep Kumar Biswas v. Indian Institute Of Chemical Biology And Others, 2002*). Merely because an entity is held to be "State" under Article 12, its employees do not automatically become entitled to the protections of Part XIV.

Judicial Evolution of "Other Authorities" under Article 12

The term "other authorities" has been the primary subject of judicial interpretation, leading to a significant expansion of the concept of "State." The judiciary has consistently adopted a purposive approach to ensure that fundamental rights are not rendered illusory by allowing entities performing public functions to escape constitutional accountability.

Early Interpretations and Expansion

Initially, there was a tendency to interpret "other authorities" ejusdem generis with the preceding terms, implying authorities exercising governmental or sovereign functions. However, the Supreme Court, in Rajasthan State Electricity Board v. Mohan Lal (AIR 1967 SC 1857), broadened this interpretation. It held that "other authorities" would include all authorities created by the Constitution or statute on whom powers are conferred by law, not necessarily performing governmental or sovereign functions. The Court noted that the words 'other authorities' are of wide amplitude (*Indian Institute Of Chemical ... v. Indian Institute Of Chemical, 2002*, referencing Smt. Ujjam Bai v. State of Uttar Pradesh, (1963) 1 SCR 778).

Statutory Corporations as "State"

The Supreme Court in Sukhdev Singh And Others v. Bhagatram Sardar Singh Raghuvanshi And Another (1975 SCC 1 421) decisively held that statutory corporations like the Oil and Natural Gas Commission (ONGC), Life Insurance Corporation (LIC), and Industrial Finance Corporation (IFC) are "authorities" within the meaning of Article 12. The Court reasoned that these corporations are instrumentalities of the State, created by statutes, and subject to significant governmental control. It was also held that regulations framed by such statutory corporations under their enabling statutes have the force of law, and their employees are entitled to the protection of Articles 14 and 16 of the Constitution.

The "Instrumentality or Agency" Test: Landmark Judgments

A significant jurisprudential shift occurred with the development of the "instrumentality or agency" test, which looks at the substance of control and function rather than mere form.

In Ramana Dayaram Shetty v. International Airport Authority Of India And Others (1979 SCC 3 489), the Supreme Court held that the International Airport Authority of India (IAAI), a body corporate constituted under the International Airports Authority Act, 1971, was an "instrumentality or agency" of the Central Government and thus "State" under Article 12. Justice P.N. Bhagwati laid down several indicative tests:

  • Financial resources of the State being the chief funding source (i.e., if the entire share capital is held by the government).
  • Existence of deep and pervasive State control.
  • Functional character being governmental in essence, or functions of public importance.
  • If a department of Government is transferred to the corporation.
  • Whether the corporation enjoys monopoly status which is State-conferred or State-protected.
This case underscored that the State, in all its manifestations, must act non-arbitrarily. The focus began to shift from the 'status' of an entity to its 'function' in determining amenability to writ jurisdiction (*SRI PUTTARAJEGOWDA v. STATE OF KARNATAKA, 2022*, citing R.D. Shetty).

These tests were further consolidated and elaborated in Ajay Hasia And Others v. Khalid Mujib Sehravardi And Others (1981 SCC 1 722). The Court, while holding that a society registered under the Societies Registration Act, 1860 (managing the Regional Engineering College, Srinagar) was an "authority" and therefore "State," articulated a comprehensive set of six tests (largely derived from R.D. Shetty):

  1. If the entire share capital of the corporation is held by Government.
  2. Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation.
  3. Whether the corporation enjoys monopoly status which is State-conferred or State-protected.
  4. Existence of deep and pervasive State control.
  5. If the functions of the corporation are of public importance and closely related to governmental functions.
  6. If a department of Government is transferred to the corporation.
The Court clarified that these tests are not exhaustive but illustrative and what is material is the "cumulative effect" of these factors. The Ajay Hasia tests were reaffirmed in subsequent cases like Shipyard Technical Staff Association And Others v. Mazgaon Docks, Ltd. And Others (1986). The necessity of government aid or control for a society to be considered "State" was also highlighted in Suresh Shah v. The State Of Madhya Pradesh (2024).

Refinement and Overruling: The Pradeep Kumar Biswas Era

The jurisprudence on Article 12 witnessed a significant refinement with the seven-Judge Bench decision in Pradeep Kumar Biswas v. Indian Institute Of Chemical Biology And Others (2002 SCC 5 111). This landmark judgment overruled the earlier decision in Sabhajit Tewary v. Union of India ((1975) 1 SCC 485), which had held that the Council of Scientific and Industrial Research (CSIR) was not "State." The Court in Pradeep Kumar Biswas held CSIR to be "State" under Article 12. It emphasized that the tests formulated in Ajay Hasia were not to be applied as a rigid set of principles but as guidelines. The crucial question is whether the body is financially, functionally, and administratively dominated by or under the control of the Government. "Control" in this context means deep and pervasive control, not merely regulatory control exercised by the government. The judgment acknowledged the "zigzag track of judicial pronouncements" in this area of law (*Pradeep Kumar Biswas v. Indian Institute Of Chemical Biology And Others, 2002* - referring to Justice Lahoti's dissenting opinion which also noted this historical trajectory). The development of law in this regard was also noted in State Of Uttar Pradesh And Another v. Radhey Shyam Rai (2009).

The Case of BCCI and the Distinction from Article 226 Amenability

The status of the Board of Control for Cricket in India (BCCI) under Article 12 has been a subject of considerable debate.

In Zee Telefilms Ltd. And Another v. Union Of India And Others (2005 SCC 4 649), a majority of the Supreme Court held that BCCI was not "State" within the meaning of Article 12. The Court reasoned that BCCI was not created by any statute, received no financial assistance from the Government, and the Government did not exercise any deep and pervasive control over its affairs, despite its monopolistic control over cricket and performance of functions of public importance like selecting the national team. However, the Court significantly observed that even if a body is not "State" under Article 12, a writ petition under Article 226 of the Constitution could still be maintainable against it if it discharges public functions or is amenable to judicial review for other reasons.

This position was further clarified in Board Of Control For Cricket In India v. Cricket Association Of Bihar And Others (2015 SCC 3 251). While reaffirming that BCCI is not "State" under Article 12, the Supreme Court held that it performs public functions and is therefore amenable to the writ jurisdiction of the High Court under Article 226. The Court emphasized that entities performing significant public functions, regardless of their private status, must adhere to constitutional standards of fairness and non-arbitrariness to maintain public trust.

This distinction is vital: amenability to writ jurisdiction under Article 226 is broader than being classified as "State" under Article 12. A body not falling under Article 12 may still be subject to Article 226 if it performs public duties (*Dr. Anjana Vyas & Another v. National Law University & Others, 2017*, citing Zee Telefilms and Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani).

Application of Principles to Other Entities

The principles evolved by the Supreme Court have been applied by various courts to determine the status of diverse entities:

Key Principles for Determining "State" under Article 12 (Consolidated)

Based on the judicial pronouncements, particularly Ajay Hasia and Pradeep Kumar Biswas, the following principles are central to determining if an entity is an "instrumentality or agency" of the State:

  • Financial Resources: The primary source of funds. If the government holds the entire share capital or provides substantial financial assistance meeting almost the entire expenditure, it is a strong indicator.
  • Control: The extent of governmental control. This must be "deep and pervasive" control over the management and policies of the body, not merely regulatory or statutory supervision.
  • Functional Character: The nature of functions performed. If the functions are of public importance, governmental in character, or closely related to governmental functions, it points towards the entity being "State."
  • Monopoly Status: Whether the entity enjoys a monopoly status that is conferred or protected by the State.
  • Governmental Conferment/Creation: Whether a department of the Government is transferred to the entity, or if the entity is created by statute with significant governmental linkages.
  • Cumulative Effect: No single factor is solely determinative. The court will consider the cumulative effect of all relevant factors in a holistic manner to ascertain if the body is an arm or voice of the government.

Implications of Being Classified as "State"

The classification of an entity as "State" under Article 12 has significant legal consequences:

  • Bound by Part III: The entity becomes subject to the discipline of fundamental rights enshrined in Part III of the Constitution (e.g., Article 14 - equality before law, Article 15 - prohibition of discrimination, Article 16 - equality of opportunity in public employment, Article 19 - protection of certain freedoms, Article 21 - protection of life and personal liberty). The State shall not make any law which takes away or abridges these rights (Article 13(2)) (*Dropti Devi And Another v. Union Of India And Others, 2012*).
  • Accountability and Judicial Review: Its actions become subject to judicial review by constitutional courts for any violation of fundamental rights.
  • Writ Jurisdiction: Writs under Article 32 (to the Supreme Court) and Article 226 (to High Courts) can be issued against such an entity for the enforcement of fundamental rights.
  • Obligation of Non-Arbitrariness: It must act fairly, reasonably, and non-arbitrarily in all its dealings, including contractual matters (*Ramana Dayaram Shetty, 1979*).
  • Distinction from Civil Service Protections: As stated earlier, being "State" under Article 12 does not automatically confer upon its employees the protections available to civil servants under Articles 309, 310, and 311 of the Constitution, which fall under Part XIV (*Organizer, Dehri C.D. & C.M. Union Limited, 2014*; *Indian Institute Of Chemical ... v. Indian Institute Of Chemical, 2002*).

Article 12 and Amenability to Writ Jurisdiction under Article 226

While Article 12 defines "State" for the enforcement of fundamental rights (which can be done via Article 32 or Article 226), the power of High Courts under Article 226 is wider. Article 226 empowers High Courts to issue writs not only for the enforcement of fundamental rights but also "for any other purpose."

Therefore, an entity that may not strictly qualify as "State" under Article 12 could still be amenable to the writ jurisdiction of the High Court under Article 226 if it performs public functions or owes a public duty, and its actions affect the rights of individuals. The focus under Article 226 can shift from the 'status' of the respondent as "State" under Article 12 to the 'nature of the function' it performs (*SRI PUTTARAJEGOWDA v. STATE OF KARNATAKA, 2022*; *Dr. Anjana Vyas & Another v. National Law University & Others, 2017*). The cases involving BCCI (Zee Telefilms, 2005; BCCI v. Cricket Association of Bihar, 2015) are prime examples of this principle.

Conclusion

Article 12 of the Constitution of India plays a pivotal role in operationalizing the fundamental rights guaranteed to individuals. The judiciary, through a series of progressive interpretations, has significantly expanded the ambit of "State" to include a wide array of entities that exercise public power or perform functions integral to public welfare. The tests laid down in landmark cases like Ramana Dayaram Shetty, Ajay Hasia, and Pradeep Kumar Biswas provide a framework for determining whether an entity is an "instrumentality or agency" of the State, thereby subjecting it to constitutional discipline.

The evolving jurisprudence reflects a commitment to ensuring that the protections of Part III are not circumvented by the State operating through various corporate or societal forms. While the definition of "State" under Article 12 remains dynamic and subject to interpretation based on the specific facts and circumstances of each case, its overarching purpose is to safeguard fundamental rights against arbitrary action and ensure accountability in the exercise of public power. The distinction between being "State" under Article 12 and amenability to writ jurisdiction under Article 226 further broadens the avenues for judicial redress against entities performing public functions, reinforcing the rule of law and constitutional governance in India.