Article 12

It defines the term “State” as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term “State” includes the following: –

  • The Government and Parliament of India, i.e., Executive and legislature of the Union
  • The Government and the Legislature of each State, i.e., Executive and Legislature of States
  • All local or other authorities within the territory of India
  • All local and other authorities under the control of the Government of India

The term “State” thus includes executive as well as the legislative organs of the Union and States. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.

  • In the context of Article 12, the word “authority” means the power to make laws, orders, regulations, byelaws, notification, etc. which have the force of law and power to enforce those laws.

The term Local authority includes

  • The word “Local authority” includes authorities like Municipalities, District Boards, Panchayats, Improvement Trust and Mining Settlement Boards.

The Court laid down the following tests for determining whether a body is an agency or instrumentality of the Government: – (RD Shetty case)

  1. Financial resources of the State are the chief funding source, i.e., the entire share capital of the corporation is held by Government
  2. Existence of deep and pervasive State control
  3. Functional character being governmental in essence, i.e., the functions of the corporation are of public importance and closely related to governmental functions.
  4. A department of Government is transferred to a corporation.
  5. Whether the corporation enjoys monopoly status which is State conferred, or State protected.

However, the Court held these tests not conclusive but illustrative only and would have to be used with care and caution. 

The term Authorities under the control of the Government of India means:

  • It brings into the definition of the State all areas outside Indian Territory, but which are under or may come under the control of the Government of India, such as, mandated or trust territories. 
  • Such a territory may come under India’s control by international agreement. Thus, even such areas will be subject to Part III and the inhabitants of such areas may also claim the benefit of Fundamental Rights guaranteed in Part III. 
  • Board of Cricket for Control in India Case
    • The court said BCCI was not fulfilling the parameters of State as defined in RD Shetty case.

Judiciary is included in the word “State“:

The Supreme Court in A.R. Antulay vs R.S. Nayak, in a seven-judge Bench decision held that The Court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens. Thus, it can be said that the expression “State” as defined in Article 12 of the Constitution includes the judiciary also. But not for judicial functions, and only for administrative purposes.

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