Why do we need to define state?
Western countries are the first in the world that human rights are reflected in
the document Magna Carta, Bill of Rights, and Fundamental Rights. Those rights
which all people have by the virtue of being human beings. Those rights without
which human beings cannot live.
Fundamental rights rests on this principle that these rights are fundamental to
the humans to live their life fully. In ancient period king was the responsible
person to protect the rights of the individuals in the society, but in modern
times there was no concept of kinship and state is the sole responsible person
to protect the rights of the individuals. Hence it is important to define state
to know whom we should sue for the violation of these basic fundamental rights
provided to citizens and in some cases to non-citizens under part third of
Fundamental rights are the basic human rights enshrined in the Constitution of
India which are guaranteed to all citizens and in some cases to non-citizens as
well. Originally there was seven fundamental rights under the Constitution but
by 44th constitutional amendment act 1978, right to property is no more a
fundamental right and was removed from the list of fundamental rights and is now
a legal right.
What is the definition of State?
The state comprises of the following:
- Government and Parliament of India i.e the Executive and Legislature of
- Government and Legislature of each State i.e the Executive and Legislature of
the various States of India
- All local or other authorities within the territory of India
- Local Authority: As per Section 3(31) of the General Clauses Act, 1897
- All local and other authorities who are under the control of the Government of
What include under the preview of State?
- Indian Government
- Indian Parliament � Lok Sabha, Rajya Sabha
- State Governments
- State Legislature � Legislative Assembly, Legislative Council of State
- Municipalities � Municipal Corporations, Nagar Palika, Nagar Panchayats
- Panchayats � Zila Panchayats, Mandal Panchayats, Gram Panchayats
- District Boards
- Improvement Trusts, etc.
- National Human Rights Commission
- National Commission for Women
- National Law Commission
- National Green Tribunal
- National Consumer Disputes Redressal Commission
- Armed Forces Tribunal
- Central Bureau of Investigation
- Central Vigilance Commission
- Lokpal and Lokayuktas
Earlier, a restrictive interpretation was given to this term, i.e, the
authorities exercising governmental or sovereign function would only be covered
under other authorities.
The liberal interpretation says that it is not necessary for an authority to be
engaged in sovereign or governmental function to come under the definition of
the state. The bodies like State Electricity Board, LIC, ONGC and IFC also come
under �other authorities�.
Importance of Article 12 of Indian Constitution?
Almost in every article under part III and part IV of Indian constitution, The
word �State� has been used. Therefore it is essential to understand the term
first before proceeding to further Articles.
Applicability of the definition given under Article 12?
The definition of state given under article 12 of Indian constitution is
applicable only to part III and IV of Indian constitution.
Is Article 12 is a fundamental Right?
No, Article 12 itself is not a fundamental right, but it helps to understand
better the scope of fundamental rights.
Is Judiciary a state under Article 12?
Judiciary can be regarded as state, depends on the judicial and nonjudicial
functions of judiciary. The judiciary cannot be regarded as state if it is
performing a judicial function, on the other hand judiciary can be regarded as
state under article 12 if it is performing a non-judicial function.
According to article 141 of the Constitution, law made by Supreme Court is
binding upon all the lower courts within the territory of India. Therefore there
is no scope for challenging the decision of Supreme Court in case of violation
of fundamental rights.
Riju Prasad Sarmah v. State of Assam 2015 ,the state includes all the three
organs of the state including the judiciary and therefore when a court is acting
in its judicial capacity it cannot be regarded as a state but when a port is
acting in its nonjudicial capacity it can be regarded as a state.
The Judiciary is not explicitly mentioned in Article 12 as a State. However,
Judiciary having the rule making powers, and can be included in the definition
of the State. The above conclusion is supported by Article 13 of the
Constitution which lays down that any laws (includes rules, regulations, etc.)
in derogation of the fundamental rights is void. Since the Judiciary in India
has the powers to make rules, if it were not �the State� for the purposes of
Part III of the Constitution, the rules made by it would not be held violative
of the fundamental rights.
- Sukhdev Singh vs Bhagatram (1975), LIC, ONGC, and IFC were held to be State as
performing very close to governmental and sovereign functions.
- In R.D Shetty v. Airport Authority of India Justice P.N Bhagwati
gave 5 Point test This is a test to determine whether a body is an agency or
instrumentality of the state and goes as follows:
- Financial resources of the State, where State is the chief funding source i.e.
the entire share capital is held by the government.
- Deep and pervasive control of the State
- The functional character being Governmental in its essence, meaning thereby that
its functions have public importance or are of a governmental character.
- A department of Government transferred to a corporation.
- Enjoys �monopoly status� which State conferred or is protected by it.
- Ajay Hasia vs Khalid Mujib (1981) The concept of agency of government is not
limited to an organization created by the statute but is equally applicable to a
company or society considering the relevant factors as explained in the
International Airport Authority case.
- Rupa Ashok Hurra v. Ashok Hurra the Apex Court reaffirmed and ruled that no
judicial proceeding could be said to violate any of the Fundamental rights and
that it is a settled position of law that superior courts of justice did not
fall within the ambit of 'state' or 'other authorities' under Article 12.
The definition of state given in article 12 of the Constitution is applicable to
part III and Part IV. Article 12 mention is that 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 and other
authorities within the territory of India or under the control of the government
Further article 36 says that unless the context otherwise requires the state has
the same meaning as in Part III.
Dr BR Ambedkar describe the scope and importance of article 12, and state that
the object of fundamental rights is twofold,
- Every citizen must be in a position to claim those rights.
- They must be binding upon every authority.
Therefore it is clear that fundamental rights must be binding not only upon the
central government, state government, panchayats, municipalities. But in fact
every authority which has been created by law and which has got certain powers
to make law, to make rules or make bylaws are state under the article 12. hence
fundamental rights are binding upon state.
The definition of state under article 12 is inclusive and not exhaustive. The
expression includes is used to accommodate new entity is within the scope of
Hence authority is not specified in this article may also fall within it if they
otherwise specify the characteristics of the state. If they perform any
functions ordinarily performed by the government, it is clear that it is state
under article 12.
There are three organs of state:
It is very clear that actions of legislature an executive may be challenged in
the courts for violating fundamental rights. There is no issue relating to
executive and legislature, they are state under article 12.
The definition of state does not include judiciary as it is evident from article
12 , and the expression local or other authorities within the territory of
Indian Bank under the control of government of India is not clear.
The framers of the constitution were of the view to include judiciary in the
meaning of the state then they specifically could write the term judiciary under
article 12, the cause of non-inclusion of judiciary in the definition of status
trust, faith or confidence in judiciary. The general conception of common people
is judiciary is a single entity to protect everyone and is being the temple of
justice. Judiciary being the guardian of fundamental rights hence judiciary is
also bound by fundamental rights.
Ratilal V. State of Bombay 1954
The Bombay High Court express the view that the judgment of court cannot be
challenged for violation of fundamental rights.
Naresh Shridhar Mirajkar & Ors. V. State of Maharashtra & ors. 1966
The hon'ble Supreme Court held that the fundamental rights is not infringed by
the order of court.
A R Antulay V. R S Nayak 1988
The court cannot pass an order or issue a direction which would be violative of
fundamental rights of citizens. Thus it is clear from this is that judiciary is
also part of state.
Triveniben & Ors. V. State of Gujarat & Ors. 1989
The court held that the judgement of court can never be challenged under article
14 or 21.
The Constitution of India does not define Local authorities. The expression
authority means a body invested with power to command or give an ultimate
decision or enforce obedience or having a legal right to command and be obeyed.
Section 3 (31) of the general clauses act 1897defines, local authority shall
mean a municipal committee, district board, board of port commissioners or other
authority legally entitled to or entrusted by the government with the control or
management of a maniples or local fund.
Other authorities are not defined under the Indian constitution but
interpretation of the term is made by judiciary and Judicial opinion has
undergone changes over time . The Supreme Court has developed the concept of an
instrumentality of the state. Authority which can be regarded as an
instrumentality of the state falls under article 12, as other authorities.
There are two kinds of authorities namely:
- Those within the territory of India
- Those under the control of government of India
Under article 12, the term �instrumentality or agency� has not been defined
though it depends upon judicial interpretation by the courts. There are certain
tests which need to be satisfied before being recognised as the instrument of
the state. Moreover, the term 'includes' indicates that the definition is not
exhaustive in nature. It is possible that the instrumentalities or agencies may
not be a part of a government department, but when there is a violation of
fundamental rights, they shall be construed as a state under the definition
e.g., government companies and public undertakings.
University of Madras V. Shantha Bai, 1954
Earlier to decide any institution as other authority, the Supreme Court applied
the role of 'Edjusdem Generis' it is a latin term which means of the same kind.
In this case court Applied this rule and held that university was not other
authority under article 12. The construction with 'Edjusdem Generis' with the
government or legislature or so construed can only mean authority is exercising
The University of Madras is a body corporate created by Madras act 1923. It is
not charged with the execution of any governmental function. Its purpose is
broadly to promote Education. Through section 44 of the act provides for
financial contribution by the local government, the university is authorised to
raise its funds of income from fees and endowments and the like. It is a state
aided institution but it is not maintained by the state.
The process of judicial interpretation has expanded the scope of the term other
Ujjam Bai V. State of Uttar Pradesh 1963
The Supreme Court did not accept the restrictive interpretation, and held that
'Edjusdem Generis' cannot be applied. Therefore university was held as other
authority in this case under article 12.
K S Ramamurthi Reddiar V. Chief Commissioner, Pondicherry & Anr. 1964
All constitutional or statutory authorities on whom powers are conferred by law.
It is not at all material that some of the powers conferred maybe for the
purpose of carrying on commercial activities. Even though the purposes to
carrying a commercial activity, if the power is conferred by law it is included
in the definition of state.
Rajasthan State Education Board V. Mohan Lal 1857
The court held that other authorities is wide enough to include within it every
authority created by a straight road and functioning within the territory of
India under the control of government of India.
Sukhdev Singh & Ors. V. Bhagat Ram Sardar Singh Raghuvanshi 1975
�Held that the bodies like oil and natural gas commission, industrial finance
Corporation and life insurance Corp which are created by statute is because of
the nature of their activities do come within the term other authorities under
article 12 even though in reality they were really constituted for commercial
Ramanna D Shetty V. International Airport Authority 1979
The court held an inclusive or exhaustive test, to test whether a corporation is
acting as an instrumentality or agency of the government or not:
- Financial assistance given by the state.
- Any other form of assistance given by state.
- Management and policies of the corporation is controlled by state.
- State conferred a status of monopoly to the corporation.
- Functions carried out or closely related to governmental functions.
Ajay Hasia V. Khalid Mujib Sehravardi & Ors. 1981
The Supreme Court summarised the test for determining as to when the corporation
can be said to be an instrumentality or agency of government:
- The entire share capital of the corporation is held by government.
- The financial assistance by the state.
- Corporation enjoys a status of monopoly conferred by state.
- Corporation under the control of state
- Function of cooperation is of public importance and closely related to
The test formulated in this case are not a rigid set of principles.
Virendra Kumar Srivastava V. U.P Rajya karmachari kalyan Nigam 2005
The court held that in order to examine whether or not an authority is a state
within the meaning of article 12, the court must carry out an depth examination
of who has administrative, financial and functional control of such a company or
Following are included in definition of State:
Following are not included in definition of State:
- Council for Scientific and Industrial Research (CSIR) is a State: Held in
Pradeep Kumar Biswas v. Indian Institute of Chemical Biologypth
(2002) 5 SCC 111
- Sainik School Society is State: Held in All India Sainik Schools Employees'
Association v. Sainik School Society AIR 1989 SC 88.
- U.P. Rajya Karmachari Kalyan Nigam is a State: Held in Virendra Kumar
Srivastava v. U.P Rajya Karmachari Kalyan Nigam (2005) 1 SCC
- Rajasthan Electricity Board is State: Held in Rajasthan Electricity
Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857
- Indian Council of Agricultural Research is State: Held in P.K. Ramachandra
Iyer v. Union of India, (1984) 2 SCC 141
- Indian Statistical Institute is State: Held in B.S. Minhas v. Indian
Statistical Institute, (1983) 4 SCC 582
- Children's Aid Society is State: Held in Sheela Barse v. Secretary,
Children's Aid Society, (1987) 3 SCC 50
- Buddhist School is State: Held in Chairman, School of Buddhist
Philosophy v. Makhanlal Mattoo, (1990) 4 SCC 6
- Board of Control for Cricket in India (BCCI)- Zee Telefilms Ltd. Union
of India, 2005 (4) SCC 649
- Institute of Constitutional and Parliamentary Studies (ICPS)- K.L. Basandhi
v. Union of India, 2 SCR 260
- National Council of Educational Research and Training (NCERT)- Chander Mohan
Khanna v. National Council of Educational Research and Training and Others 1991
(4) SCC 578
- International Crops Research Institute (ICRI)- G.B. Reddy v. International
Crops Research Institute AIR 2003 SC 1764
- Cooperative Banks- Khaja Industries v. State of Maharashtra AIR 2008 NOC 44
- Stock Holding Corporation of India- Dharmender Sharma v. Union of India and
others on 21 March, 2013
- The Institute of Road and Transport Technology, Erode- K.R. Palanisamy v.
The Director, Institute of Road Transport, Taramani, Chennai on 25 April, 2014
- Utkal Gomangal Samiti registered under the Societies Registration Act, 1860-
Nagendra Nath Mohapatra v. State of Orissa and others on 22 April, 2014
- Mirchpur Cooperative Credit and Service Society Ltd., Hisar- Aster Beg v.
Joint Secretary And others on 30 June, 2014
- Red Cross Society-M/S New Balaji Chemist v. Indian Red Cross Society on 2