October 20, 2021

Article 12 of the Constitution of India with Important Case Laws

Constitution of India

Introduction

The Constitution of India has guaranteed certain Fundamental Rights to all citizens of the country under Part III. These rights are an extension of the basic human rights recognized internationally. Therefore, every citizen regardless of gender, caste, religion, place of birth, sexuality etc., has these rights enshrined to them. Such rights are not exercisable against ordinary citizens or private entities in their personal capacity but only against the State and its representatives. Therefore, the State acts as the guardian of these rights and is bounded by the duty to protect the same. It is for this reason that almost all claims on violation of Fundamental Rights are against the State and its representatives rather than ordinary citizens and/or private bodies.

Since violations of Fundamental Rights can solely be claimed against the State and its representatives, it becomes essential to determine what and who constitutes a State. For this purpose, Article 12 of the Constitution of India[1] has been instituted to define and outline the meaning of “State”. This is quintessential as no action against violation of Fundamental Rights can be brought against any body or person who falls outside the purview of Article 12.

Since Fundamental Rights have an extraordinary importance attached to them, the ambit of “State” cannot be narrow in any sense. This was recognized by the makers of the Constitution and consecutively, Article 12 is a non-exhaustive clause. The word “includes” employed in the definition signifies that the provision is non-exhaustive in nature. It is in the same light that the judiciary has further widened the ambit of the definition of “State” to include more than what has been enlisted in the provision of Article 12. 

Text of Article 12 of the Constitution of India

Article 12 lays down four broad heads which constitute the State. Firstly, there exists the Union Government represented by its legislative and executive bodies. This includes the Indian Government, Rajya Sabha and Lok Sabha. Secondly, the State Governments represented by their legislative and executive bodies are included with their respective legislative assemblies and legislative councils. Thirdly, local authorities including municipalities, panchayats, district boards and improvement trusts all form part of the definition of the State. Lastly, statutory and non-statutory authorities such as the National Human Rights Commission, National Law Commission etc., and Central Bureau of Investigation, Lokpals and Lokayuktas constitute other authorities. Therefore, State under Article 12 comprises of Union Government, State Government, local authorities and other authorities.

Application of Article 12 of the Constitution of India

The Article is applicable to all Governments, local authorities and other authorities which function within the territory of India. It has been held that the definition and extent of territory of India is the same as that embodied in Article 1 (3) of the Constitution.[2] Article 1 (3)[3] prescribes the territory of India to include territories of all the States, the Union Territories as listed under Schedule I and such other territories as acquired.

Union and State Governments

The Union and states comprise of the Legislature, Executive and the Judiciary. At the centre, the Parliament comprises of the Lok Sabha and Rajya Sabha. It is vested with the task of enacting laws. The respective legislatures of the State Governments perform the role of legislation at the state level. Therefore, any law which may be construed to violate Fundamental Rights brings an action against the State in its capacity as the Legislature. This is simply because Legislature is the elected body of people’s representatives and should be imposed with the duty of establishing general public welfare as recognized under various provisions of Part III of the Constitution.

The Executive comprises of the President, Prime Minister and his Council of Ministers including, Cabinet Ministers, police officers, bureaucrats etc.

Article 12, specifically enlists the Union and state legislatures and governments, but does not specify the judiciary. This may be construed to give the judiciary the power of adjudicating decision in contravention to Fundamental Rights. If the judiciary was brought under the ambit of “State” in Article 12, every judicial decision would be liable to scrutiny for violations of Fundamental Rights. However, acts of the judiciary in its administrative capacity are in fact, liable to such scrutiny. Therefore, a distinction between the judicial and non-judicial functions is drawn. What this implies is that, judiciary cannot be instituted in claims for violation of Fundamental Rights for its decisions and actions in judicial capacity. However, any rules made. Administrative actions employed can be questioned on basis of violation of Part III of the Constitution.

The reasoning for the same was given by the Supreme Court in a nine-judge bench.[4] It was stated that the role of judiciary is to resolve conflicts between the parties and there are mechanisms such as appeal, judicial activism, and judicial review to keep decisions adjudicated by the courts in check.

Local Authorities under of Article 12 of the Constitution of India

The meaning of an “Authority” is essentially any person or body vested with the powers of exercising certain commands. Article 12 specifically mention local authorities and other authorities. In this sense, the local authorities have been empowered to make rules, regulations, bye-laws, through notifications and orders which have the force of law. The definition of local authority has been provided under Section 3(31) of the General Clauses Act, 1897, so as to mean any municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control and management of a municipal or local fund.[5] The same has been mentioned under VIIth Schedule, List II under the head of local government. Therefore, local governments constituting of municipal boards, district boards, improvement trusts, mining settlement authorities and other local authorities for village administration and other kinds of local self-governance are included under the ambit of local government.[6]  Further, village administration in itself also comprises of the village panchayats which haven been judicially recognized as State.[7]

The Supreme Court has laid down seven criteria to determine what constitutes a local authority.[8] This test for local authority includes:

  1. Separately existing as a corporate body,
  2. Have legal independent existence beyond its function as a government agency,
  3. Have well-defined jurisdiction to function in,
  4. Be elected by the local residents of the jurisdiction in direct or indirect manner,
  5. Be vested with some degree of autonomous powers,
  6. Have statutory existence which also defines its specific functions, usually limited to delegated funtions of the State List in VIIth Schedule, such as, health, education, environment, town planning, etc.,
  7. Be funded independently to finance its functions and activities by levying taxes, fees, or any other similar forms of charges.

Other Authorities under of Article 12 of the Constitution of India

The term “other authorities” has a wide amplitude connected with it as it has not been defined by any legislation, including the General Clauses Act, 1897, the Constitution itself or any other rule or statute. It is therefore, only fitting that most disputes concerning the definition of State arises owing to the difficulties in the interpretation of this phrase. The judiciary has strived to provide some clarity on the same.

The legislative and executive powers of the government need not be exercise by them alone, but can be delegated and even sub-delegated to various departments and autonomous bodies. These autonomous institutions may be in form of companies, corporations, trusts etc. Therefore, the criteria which determines which functions of an autonomous body is in its capacity as a delegated entity of the State determines whether the actions against violation of Fundamental Right is sustainable or not. The judiciary has determined this through various judgments.

Application of Ejusdem Generis

Ejusdem Generis is the tool of interpretation which suggests that when a class of words is followed by a general word, the general word is not absolutely wide but restricted to the implication of the class of words it is preceded by. Therefore, the use of the phrase “and other authorities” in Article 12 must be read in light of the preceding terms such as local authorities, state and central governments. However, the Supreme Court has made an exception of this rule of interpretation to Article 12 and held that “other authorities” cannot be constricted to mean local authorities, state and union governments.[9] The reasoning contended for the same is that the word “State” should be given the widest possible effect to include every statutory authority and non-statutory authorities which meet certain criteria to ensure the effective enforcement of Fundamental Rights. Another contention was that the phrases preceding “other authorities” do not fall under any general niche which may be utilised to determine its extension to the general phrase.

Despite this, the Supreme Court has also held that ejusdem generis is applicable to the phrase “other authorities” to the extent that such an authority is working in the capacity of a government body or is carrying out sovereign functions of any kind, i.e., the fulfilment of public welfare and duties. Another strict rule that was laid down is persons, juristic and natural cannot fall under the definition of State, and by extension unaided private universities do not constitute State. [10]

The Court further modified its view by attributing a wide meaning to the general phrase.[11] Therefore, other authorities would include every authority created by statutes and vested with legal powers. This is irrespective of their functions being governmental or sovereign in nature. The carrying out of commercial functions does not automatically disqualify the entity from falling under the definition of State. 

Control of Government of India

As discussed above, the Governments need not undertake their functions themselves. However, this does not imply that the bodies which carry out functions akin to them be under the direct control of the Government either. It simply implies that the Government should be exercising at least the slightest degree of control over the functions and duties carried out by the body. Being a statutory body does not in itself qualify it as a State and similarly, not being a statutory body does not automatically disqualify from Statehood under Article 12. Any kind of body corporation can be given statehood as long as they are either funded by the State financially or if such a government exercises administrative or any other kind of direct or indirect control. Certain illustrations of this include, Bangalore Municipal Corporation, Delhi Transport Corporation, Oil and Natural Gas Commissions, Electricity Boards are all State. However, NCERT would not qualify as a State as there is neither direct/indirect financing by the governments nor any other kind of control established. Especially in light of the recent judicial developments, the definition of State is not a restrictive one, but rather wide. Even the seven step test laid down is not properly rigid but falling under any of those categories is sufficient to be bestowed statehood for purposes of Article 12. It has been established in that case that, “whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of Government. Such control must be particular to the body in question and must be pervasive.

Conclusion

The mere granting of Fundamental Rights to the citizens would not suffice unless there exists correlative duty to carry out and ensure the implementation and protection of such Rights. This is the essential reason for the approach undertaken by the judiciary in widening the scope of Article 12 which is in line with the intention of the framers of the Constitution. The entire purpose of Article 12 has been to properly define this correlative duty and establish the parties responsible for such an implementation. By breaking down the provision itself into its key terms such as local authorities, other authorities, control of government etc., various precedents have been laid out for properly defining each such key term and establishing the scope of Article 12.


[1] CONST. OF INDIA, art. 12.

[2] Masthan Sahib v. Chief Commissioner, (1962) AIR 797.

[3] CONST. OF INDIA, art. 1 cl. 3.

[4] Naresh Shridhar Mirajkar v. State of Maharashtra, (1967) AIR SC 1.

[5] The General Clause Act, No. 10 of 1897.

[6] CONST. OF INDIA, art. 246.

[7]  Ajit Singh v. State of Punjab, (1967) AIR 856.

[8] Mohammad Yasin v. Town Area Committee, (1952) AIR 115.

[9] Ujjain Bai v. State of U.P, (1962) AIR SC 1621.

[10] University of Madras v. Shanta Bai, (1962) W.P No. 79.

[11] Rajasthan Electricity Board v. Mohan Lal, (1967) AIR 1857.

Author Details: Shubham Shukla (Christ University)

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