Before we understand the role and existence of Article 12 in our Constitution of India, we should thoroughly understand why it is called the Magna Carta of the Indian Constitution. Magna Carta means ‘a document constituting a fundamental guarantee of rights and privileges’. According to the Britain History, it is ‘a charter of liberties to which the English barons forced King John to give his assent in June 1215 at Runnymede’. Nonetheless, in Indian constitutional theory, it is a symbol of the assertion of Individual rights (from Article 12- 35). What it reflects is the awakening of the people on the face of the tyranny of monarchy (As a nation is ruled by Law, not by a Tyrant) and demonstrates that when the individuals are fortified with rights and freedoms they can bring about a great change.
Article 12 under the Indian Constitution
According to Article 12 of the Constitution of India, the term ‘State’ denotes the union and state governments, the Parliament and state legislatures, and all local or other authorities within the territory of India or under the control of the Indian government. Article 12 defines State by consisting of the following parts of the Constitution-
• The Government and the Parliament of India
• The Government and the Legislature of each State.
• Local Authorities and Other Authorities.
And the essential bodies embodied under Article 12-
• The President of India and Governors of states with executive powers
• Any department of the government like the Income Tax Department.
• Any institution controlled by the government like the International Institute for Population Sciences
• LIC and ONGC which perform tasks similar to governmental or sovereign functions.
• Municipalities, Panchayats, and other similar local authorities with the power to make and enforce rules, regulations, and laws.
• Any other organization which exercises sovereign functions.
• Article 12 does not clear about the definition of Jurisdiction. However, the school of thought is that since the judiciary has the power to make and enforce laws, it should be considered to be a State. However, whereas a false judgment may cause a violation of the fundamental rights of a citizen, obstructive decisions of the Courts are subjected to the tests of Article 14 of the Constitution.
Thus, the simple regulatory power of the government over any statutory or non-statutory body is not enough for it to be deemed as a State. The concerned administrative body has to be financially, functionally and administratively and pervasively controlled by the government.
Essential Part of the Indian Constitution
Being a pivotal part of the Constitution of India, it has chastity along with some black marks.
Some members of the Assembly were concerned that the wording of the Article was too vague and some moved amendments. They particularly had trouble with the term ‘other authorities’ which would in effect bring in almost every government agency or officer under the sphere of ‘State’. One member had a complaint regarding while it was fine for fundamental rights to be binding on institutions like district boards and municipalities, to refer to these institutions as the ‘State’ was inappropriate.
In the end, it got clarified that ‘authorities’ would refer persons that had ‘the power to form laws or the power to have discretion vested in it’. Also, in response to members who were against of the use of the term ‘State’, it was argued that it would be burdened to list out the various institutions upon whom fundamental rights were binding; so the term ‘State’ – with its comprehensiveness and economy of words – was useful to adopt throughout the fundamental rights section and therefore the Constitution.
The Assembly adopted the Article with just one amendment: ‘or under the government of India’ was added to the end of the Article 12 to account for those territories which were not part of India but nonetheless under the control of the Indian government.
Cases related to Article 12
The Constitution of India has defined the word ‘State’ under Article 12, for the purpose of Part-iii and Part-iv. In the case of, ‘State of West Bengal vs Subodh Gopal Bose (1954 AIR 92)’ the SC observed that the object of Part-iii is to provide protection to the rights and freedoms guaranteed under this Party by the invasion of ‘State’.
The maximum of cases of this Article is related to the Authorities embodied under this Article 12 i.e Local Authorities, the Government of India, and Parliament of India and the most ambiguous one ‘Other Authorities’. Other Authorities which have led the Judiciary system undergone various changes of Judiciary opinion. Cases where the definition of ‘Other Authorities’ has successfully created chaos inside the courtroom are,
• The University of Madras vs Santa Bai (AIR 1954 Mad 67)
• Sukhdev Singh vs Bhagatram (AIR 1975 SC 1331)
• Ajay Hasia vs Khalid Mujib (1981 AIR 487)
• Chandra Mohan Khanna vs NCERT (1982 AIR 76)
• Pradeep Kr. Biswas vs Indian Institute of Chemical Biology (Appeal civil 992 of 2002)
To give a wider dimension to fundamental Rights, the judiciary has interpreted ‘State’ in indifferent contexts at different times. In the case of the University of Madras vs Santa Bai (AIR 1954 Mad 67), the madras High Court evolved the principle of Ejusdim generis i.e of the like nature. It means that the authorities are covered under the expression ‘other authorities which perform governmental and sovereign functions.
Again in Sukhdev Singh vs Bhagatram (AIR 1975 SC 1331), LIC, ONGC, and IFC were held to be State as performing very close to governmental and sovereign functions. The corporations state when they enjoy
1. Power to make regulation
2. Regulations have the force of law
3. Clearance of five seats
The Court observed in Ajay Hasia vs Khalid Mujib (1981 AIR 487), whether a juristic person is a State, the question arose whether the Regional Engineering College, Srinagar, established, administered and managed by society as registered under the J & K Registration of Societies Act, was a State defined in the meaning of Article 12. Justice Bhagabati, speaking, the unanimous five judge-bench, reiterated that the tests for determining on when a corporation falls within the definition of State in Article 12 is whether it is an instrumentality or agency of government. The inquiry must be not how the juristic person is born but why it has been brought into existence. It is, therefore, immaterial whether the corporation is created by the statute or under a statute. The concept of machinery or 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.
While in Chandra Mohan Khanna vs NCERT (1982 AIR 76), it was held that NCERT, has been held to be outside the scope of Article 12. NCERT is a society registered under the Societies Registration Act. It is largely an autonomous body; its activities are not wholly associated with the governmental functions; governmental control is confined mostly to ensuring that its funds are properly utilized; its funding is not entirely from government sources.
Another example of an expansive interpretation of the expression ‘other authorities’ is Pradeep Kr. Biswas vs Indian Institute of Chemical Biology (Appeal civil 992 of 2002), In this case, the Supreme Court held that the Council of Scientific and Industrial Research (CSIR) is an authority under Art. 12 and was bound by Art. 14. The Court has ruled that the “Control of the Government in CSIR is ubiquitous. The court has now laid down the subsequent proposition for identification of ‘authority’ within Art. 12.
In the end, it was clarified that ‘authorities’ would refer those that had ‘the power to form laws or the power to possess discretion vested in it’. Also, in response to members who were against to the use of the term ‘State’, it was argued that it would be the list out the various institutions upon whom fundamental rights were binding; therefore the term ‘State’ – with its comprehensiveness and economy of words – was useful to adopt throughout the fundamental rights section and therefore in the Constitution.
The Assembly adopted the Article with just only one amendment: ‘or under the government of India’ was added as a part of the Article to account for those territories which were not part of India but nonetheless under the control of the Indian government.
“The views of the authors are personal“
Frequently Asked Questions
What is Ejusdem Generis?
In Dictionary meaning it denotes something of the same kind. A method of interpretation that where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted things of the same type as the listed items.
Is Article 12 a Fundamental Right?
Part III of our constitution of India consists of a long list of fundamental rights, containing rights starting from article 12 to article 35. The purpose behind having our fundamental rights rests in the need for having a democratic society which is a nation ruled by law and not by a tyrant.