Article 12: Article 12 of the Indian Constitution defines a State.
A state includes:
- The government and parliament of India.
- The government and legislature of each state.
- The local or other authorities within the territory of India.
- The local or other authorities under the control of Govt. of India.
The parliament comprises of the President of India, the lower house
of the parliament that is the Lok Sabha as well as the upper house of the
Parliament, that is the Rajya Sabha.
It is that organ which implements the laws passed by the legislature
and the policies of the government. The rise of the welfare state has
tremendously increased the functions of the state, and in reality, of the
executive. In common usage, people tend to identify the executive with the
government. In contemporary times, there has taken place
A big increase in the power and role of the executive in every state. The
executive includes the President, Governor, Cabinet Ministers, Police,
The legislature is that organ of the government which enacts the
laws of the government. It is the agency which has the responsibility to
formulate the will of the state and vest it with legal authority and force. In
simple words, the legislature is that organ of the government which formulates
laws. Legislature enjoys a very special and important in every democratic state.
It is the assembly of the elected representatives of the people and represents
national public opinion and power of the people.
The law-making or legislative branch and administrative or executive
branch and law enforcement or judicial branch and organizations of society. Lok
Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative
branch. Indian President is the head of the state and exercises his or her power
directly or through officers subordinate to him. The Supreme Court, High Courts,
and many civil, criminal and family courts at the district level form the
The legislative body at the state level is the State
Legislature. It comprises of the state legislative assembly and the state
Before understanding what a local authority is, it is important to define
Authorities. According to Webster's Dictionary; “Authority” means a person or
body exercising power to command. When read under Article 12, the word authority
means the power to make laws (or orders, regulations, bye-laws, notification
etc.) which have the force of law. It also includes the power to enforce those
Local Authority: As per Section 3(31) of the General Clauses Act, 1897,
Local Authority shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the
Government within the control or management of a municipal or local fund.
The term Local authority includes the following:
- Local government: According to Entry 5 of the List II of VII Schedule
'local government' includes a munici
- Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was
held that within the meaning of the term local authority, village panchayat is
Test to determine Local Authorities.
In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be
characterized as a 'local authority' the authority concerned must;
- Have a separate legal existence as a corporate body
- Not be a mere government agency but must be legally an independent
- Function in a defined area
- Be wholly or partly, directly or indirectly, elected by the inhabitants
of the area
- Enjoy a certain degree of autonomy (complete or partial)
- Be entrusted by statute with such governmental functions and duties as
are usually entrusted to locally (like health, education, water, town
planning, markets, transportation, etc.)
- Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or fees
The term other authorities
in Article 12 has nowhere been defined. Neither in
the Constitution nor in the general clauses Act, 1897 nor in any other statute
of India. Therefore, its interpretation has caused a good deal of difficulty,
and judicial opinion has undergone changes over time.
The functions of a government can be performed either the governmental
departments and officials or through autonomous bodies which exist outside the
departmental structure. Such autonomous bodies may include companies,
In the case of Ujjammabai v. the State of U.P
., the court rejected the
above restrictive scope and held that the 'ejusdem generis' rule could not be
resorted to the in interpreting other authorities
. The bodies named under
Article 12 have no common genus running through them and they cannot be placed
in one single category on any rational basis.
Control of the government of India
Under Article 12, the control of the Government does not necessarily mean that
the body must be under the absolute direction of the government. It merely means
that the government must have some form of control over the functioning of the
body. Just because a body is a statutory body, does not mean that it is State
Both statutory, as well as non-statutory bodies, can be considered as a 'State'
if they get financial resources from the government and the government exercises
a deep pervasive control over it.
State includes Delhi Transport Corporation, ONGC and Electricity
Boards, but does not include NCERT as neither is it substantially financed by
the government nor is the government's control pervasive.
The test laid down in the case of Ajay Hasia is not rigid and therefore if a
body falls within them, then it must be considered to be a State within the
meaning of Article 12. It was discussed in the 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.
Whether State includes Judiciary?
Article 12 of the Constitution does not specifically define 'judiciary'. This
gives the judicial authorities the power to pronounce decisions which may be
contravening to the Fundamental Rights of an individual.
If it was taken into the head of 'State', then as per the article, it would be
by the obligation that the fundamental rights of the citizens should not be
violated. Accordingly, the judgements pronounced by the courts cannot be
challenged on the ground that they violate fundamental rights of a person. On
the other hand, it has been observed that orders passed by the courts in their
administrative capacity (including by the Supreme Court) have regularly been
challenged as being violative of fundamental rights.
The answer to this question lies in the distinction between the judicial and
non-judicial functions of the courts. When the courts perform their non-judicial
functions, they fall within the definition of the 'State'. When the courts
perform their judicial functions, they would not fall within the scope of the
So, it can be noted that the judicial decision of a court cannot be challenged
as being violative of fundamental rights. But, an administrative decision or
a rule made by the judiciary can be challenged as being violative of fundamental
rights, if that be supported by facts. This is because of the distinction
between the judicial and non-judicial functions of the courts.
In the case of Naresh Shridhar Mirajkar v. State of Maharashtra
, AIR 1967
SC 1, a 9-judge bench of the Supreme Court held that a judicial decision
pronounced by a judge of competent jurisdiction in or in relation to a matter
brought before him for adjudication cannot affect the fundamental rights of the
citizens since what the judicial decision purports to do is to decide the
controversy between the parties brought before the court and nothing more.
Therefore, such a judicial decision cannot be challenged under Article 13.
ARTICLE 13 : Laws inconsistent with or in derogation of the fundamental
- All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be
- The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause
shall, to the extent of the contravention, be void
- In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes
laws passed or made by Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof
may not be then in operation either at all or in particular areas
- Nothing in this article shall apply to any amendment of this
Constitution made under Article 368 Right of Equality
The doctrine of eclipse
This doctrine simply states that any law which is contrary to fundamental rights
enshrined in Part III of the constitution is not void but becomes unenforceable
i:e it becomes dormant for an infinite period of time until the inconsistency is
removed from it.
The apex court of India evolved this doctrine in the case of Bhikaji v. State of
in this case court held that any law existing before the
commencement of the constitution which is inconsistent with any of the
provisions mentioned in Part III of the constitution is simply not void but
The doctrine of Severability
From the word severability, it is clear that it means to separate. According to
this doctrine, not the whole act is considered void but only the impugned part
which is contrary to the provisions of Part III is considered void provided that
the impugned act is separable.
Supreme Court in A.K Gopalan Case
used this doctrine to decide the matter. Where
Section 14 of the Preventive Detention Act, 1950 was declared as void and the
rest of the act was valid. In the RMDC v. UOI,
the apex court laid down
following rules regarding the use of Doctrine of severability:
- The intention of the legislature behind enacting the ACT is important to
decide whether the impugned part is separable from the whole act or not.
- If the impugned provision is not separable from the whole act then the
whole act will be considered as void.
- If the impugned provision is separable from the whole Act but the whole
of the act forms a part of a single scheme which was intended to operate as
a whole then also the whole act will be considered as void.
Written By: Ms.Ishika Jain
Authentication No: AG30820603582-17-820