Article 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
The state shall not act against these Fundamental Rights, if State does such an
act that infringes Fundamental Rights then that such an aggrieved person can sue
the State. so, what is the state? This article defines the definition of the
State, this definition of the state is only applicable in Part III & Part IV of
So, the State includes:
- The Government and the Parliament of India, and
- The Government and the Legislature of each of the States, and
- All local authorities, and
- Other authorities within the territory of India or under the control of
the Government of India.
It is defined in section 3(31) of the General Clauses Act.
According to it, all the local self-governing bodies are local authorities. Such
as Panchayats, District Boards, Municipalities, etc.
It is a dynamic term, let's interpret it with the help of case laws:
Are Universities considers as the State?
- University of Madras V. Shanthabai AIR 1954 Mad.67:
In this case, it was asked that the University of Madras is a State or not
as it was made under the Madras University Act. Judges said that the term
Other Authority used in Article 12 should be Ejusdem Generis (which means of the same kind) with the
Government or Legislature.
They derive the colour of other authority from the preceding three
authorities under Article 12. So, they said that Universities are not State
because they are not of Governmental or Sovereign nature. According to this
case, the Sovereign function is an inherent quality for becoming State.
- Ujjambai V. State of U.P. AIR 1962 SC 1621:
In this case, SC cancelled
the approach of Ejusdem Generis for becoming the State, they said that this
approach is very restrictive and in Article 12 there is no common generis in the
above three categories. So, the approach of Ejusdem Generis was restricted from
- Rajasthan Electricity Board V. Mohanlal AIR 1967 SC 1857:
In this case,
SC thought to formulate new criteria for the category of Other Authority. They
said if any body or authority is created by any Law or Constitution then it is
obvious that that body has many powers to affect Fundamental Rights. So, if the
body has so many powers then it must be qualified as an Other Authority. They
also said that this type of body doesn't need to perform Government or Sovereign
functions. So, it is not necessary to inherit this function (means these bodies
can have any nature).
So, Universities are also State under the Other Authorities category.
Bodies that are made under special statute or act but constituted for
Commercial purpose is also State? Sukhdev V. Bhagatram AIR 1975 SC 1331:- In this case, SC said that statutory
bodies such as ONGC/ LIC/ IFC which were set up under special statute are
considered as State i.e. Other Authority.
Airports are considered as State or not?
R.D. Shetty V. International Airport Authority AIR 1979 SC 1628:- In this case,
International Airport Authority invited so many tenders, R.D. Shetty was also
applied for one of these tenders but due to some discriminatory reasons his
tender was not accepted then he filed a case for the infringement of Fundamental
Rights against International Airport Authority.
Then the question arises that
the International Airport Authority is a State or not? In this case, the court
observed that International Airport Authority was formulated under Airport
Authorities Act which is a parliamentary act this they also observed that
Central Government has so many powers that they are exercising on this body i.e.
International Airport Authority. The Central Government was empowered to appoint
the Chairman and other members of the International Airport Authority.
that, the entire capital amount that is required to establish an International
Airport Authority was invested by the Central Government. The Central Government
had also the power to transfer the management of various Airports. So by looking
and considering all these points SC said that Airport Authority is a State under
the category of Other Authority.
In this case, there was not any
weightage given to the functional aspect of the Airport Authority in place of
that they give weightage to the instrumental aspect. SC said that if on any
private body also, the government have a usual degree of control on its
management or if that body has extraordinary financial assistance from the
government then that private body is also considered as Instrument or Agency of
the State under Other Authority u/a 12.
Bharat Petroleum that is incorporated under the Companies Act is also a
State or not?
- Som Prakash V. Union of India (1981) SSC 449; AIR 1981 SC 212:-
In this case, also on the basis of an instrumental aspect of Bharat
Petroleum which is incorporated under the Companies Act was also considered
as a State under the category of Other Authority.
This case is important because this case gives us 5 criteria to determine
whether a body or authority is state or not. i.e. following:
- Financial Resources of the State being the Chief Funding Source
- Functional Character is being Governmental.
- Absolute/Plenary Control Residing in Government.
- Prior history of the same activity being carried out by the Government
and made over to the new body.
- Some element of Authority or Command.
- Ajay Hasia V. Khalid Mujib (1981) 1 SCC; AIR 1981 SC 487 In this case, Sc
said that determining test is not that whether a body made or formulate under a
statute or not but determining test is that whether a body is acting as an
instrumentality or agency of the State.
This case gives us a Determining Test that tells about 6 criteria to
determine whether the body is State or not? So, this test is following:
- Whether the entire Share Capital is held by the Government or not
- Financial Assistance ( A great degree of Financial Assistance is by
- Monopoly Status ( protected by the State),
- Deep and Pervasive control of State
- If the functions are of public importance or related to governmental
functions of the Corporation,
- If a department of the Government is transferred to that body or
If any body or corporation passes this test then it is a State under Other
Authority u/a 12.
- Unaided Private Schools over which the Government has no Administrative
Control are not State within the meaning of Article 12; Salimbla Sharma v. St.
Paul's Senior Secondary School, AIR 2011 SC 2226.
So, things that are necessary for a body to become State are:
- Established under any Law or Constitution
- Financially aided by the Government.
- Administrative Control of the Government.
- Usual degree of Control of the Government.
Written by: Jagpravesh Singh
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