8uTHE NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

PROJECT

SUBJECT: CONSITUTIONAL LAW II

TOPIC: INTERPRETATION OF ARTICLE 12 OVER THE YEARS

SUBMITTED TO: SUBMITTED BY:

MISS KULDEEP KAUR TANISHKA SAXENA

(2019BALLB131)
Contents
Certificate...................................................................................................................................3

Acknowledgement......................................................................................................................4

Introduction................................................................................................................................5

Definitional Analysis.................................................................................................................7

Tests for Determination for State...............................................................................................9

Whether State Includes Judiciary.............................................................................................14

Conclusion................................................................................................................................16

Bibliography.............................................................................................................................17
CERTIFICATE
This to certify that the project titled “Analysis of the 42nd and the 44th Amendment with
regard to the Emergency provisions” has been prepared and submitted by Tanishka Saxena,
who is currently pursuing B.A.LL.B. (Hons) from The National Law Institute University,
Bhopal. This is in fulfilment of the Constitutional Law Course. It is also certified that this is
her original work.

Date:

Signature of the Student:

Signature of the Supervisor:

ACKNOWLEDGEMENT
I wish to express my sincere gratitude to Miss Kuldeep Kaur for providing me with the
opportunity to research, study comprehensively and pen this project. Without his aid and
guidance, the completion of this analysis would have been a very difficult task.

I also wish to thank the library administration and staff for helping me find the correct
resources required to compose this project, for resources are useful only when used
appropriately.

I also find it of utmost necessity to acknowledge the constant support and encouragement I
received from my parents and friends. They are the true source of my motivation and will to
thrive.
INTRODUCTION
Legal sovereignty is an authority, whether a person or an agency whose expressed will binds
others and whose will is not liable to be overruled by the expressed will of someone placed
above it.1 The notion of sovereignty arose as a result of the renaissance and reformation of
Europe. The principle of "State Absolutism," i.e., the State is absolute and Machiavelli
created an end in itself; its forces can not be limited. He was of the opinion that neither the
state is subject to the church nor to the rule of nature.2 Jean Bodin, the French jurist, felt that
he was the first jurist to try to define the term "sovereign." For him, "sovereign" meant
"absolute and perpetual power within a state."3

His political theory was articulated by Thomas Hobbes (1588-1679) through his most
respected book, Leviathan, published two years after King Charles I was executed. Hobbes
believed through his work (Leviathan) that humanity requires a supreme-excellence, that is
an absolute-monarch, since only the presence of one supreme sovereign power" would
guarantee harmony for all. Hobbes concluded that factionalism in society, such as opposing
states, competing philosophies, or the dispute between the Church and the state, leads to a
"civil war" conclusion.4 Therefore every person in society needs to agree in order to preserve
peace, even if one authoritative figure controls the government, makes the laws and is in
charge of the church; this authoritative figure must be called the "State."

In his work of respect, Province of Jurisprudence Decided (1832), John Austin (1790-
1859), the founder of analytical jurisprudence, affirmatively asserted that "Where there is a
state, there is no anarchy; the state is the necessary evil." Austin described "law" as the
sovereign's order, whose non-compliance calls for sanctions.

Finally, the principle of 'common sovereignty' was demonstrated by A.V. Dicey (1835-
1922) in his much-acclaimed book, The Rule of the Constitution. Dicey said that, since it is
the supreme law making body, the legislature (that is, the Parliament) is the legitimate
sovereign. There is a democratic sovereign behind this legal sovereign (that is, the
legislature) which is the electorate. In compliance with the political sovereign, the legal
sovereign has to act. The test to decide whether or not a person or body is a legal ruler,
1
Bryce, Studies in History and Jurisprudence, Volume II, p.53
2
Machiavelli, The Prince, Volume XXXVI, Part 1, Harvard Classics, P.F. Collier & Sons, (1909-1914)
3
Jean Bodin, Six Books of the Commonwealth, (République, I, 8 [Mc] 84), Du Puys, Paris (1576)
4
Thomas Hobbes (1588-1679), Philosophy Now, a magazine of ideas,
< https://philosophynow.org/issues/124/Thomas_Hobbes_1588-1679>
according to Dicey, is to see whether or not it has the power to make or unmake laws.
Lexically speaking, the term State‟ in a general sense can be defined as, „a people
permanently occupying a fixed territory bound together by a set of common-law habits and
custom into one body politically exercising, through the medium of an organized
government, independent sovereignty and control over all the persons and things within its
boundaries, capable of making war and peace and of entering into international relations
with other communities of the globe.5 The word 'State' can also be described as the
organisation of social life which on behalf of the people, exercises sovereign power.6

5
United States v. Kusche, D.C. Cal., 56 F. Supp. 201, 207, 208
6
Delany v. Moraitis, C.C.A. Md., 136 F. 2d 129, 130
DEFINITIONAL ANALYSIS
Article 12 of the Constitution of India, 1950, gives the State of Speech an inclusive meaning.7
The sense of Article 12 lies in the fact that it is embodied in Part III of the 1950 Constitution
of India, which deals with fundamental rights.8 Article 13(2) of the 1950 Constitution of India
forbids the State from promulgating laws which may constitute an infringement of
fundamental rights. The concept of a State in Article 12 shall apply only for the purpose of
applying the provisions contained in the Constitution of India, 1950, Section III..

Consequently, a demand for the protection of fundamental rights is made against the State
(and its instruments) and not against private bodies.9 However, even though a “body of
persons” does not constitute a State within the context of Article 12, a written petition
pursuant to Article 226 of the Constitution of India may be lodged against it in 1950, either
on constitutional grounds or on grounds of violation of certain provisions of the Constitution
of India, beyond the limits of Section III of the Constitution of 1950, as for instance.10 In
order to retain a writ against an individual or against a non-statutory agency, it is important
that the order be discharged from public service (or public duty). A private agency
discharging a public duty or a positive responsibility of a public nature, or an individual (or
entity) under a duty to discharge any role under any statute, shall also discharge any function
under any statute.11

The term 'State includes, in accordance with Article 12 of the Constitution of India, 1950, the
following: (a) the Central Government and the State Governments; (b) the Parliament of
India and the State Legislatures; (c) all local authorities; and (d) other authorities within or
under the jurisdiction of the Central Government within the territory of India.

Article 12 envisages a special definition, with a broader goal, qua the term State. Article 12
does not restrict the conceptual framework of the term „State‟ within the bounds of the
language of the constitutional provision, that is, Article 12. It in fact, embraces a definition
which is wider in scope and perspective, to bring under its sweep all authorities under the
control of the Government. The constitutional philosophy as enumerated in the Preamble of

7
Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251 (Para 22)
8
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 (Para 8)
9
Shamdasani v. Central Bank of India, AIR 1952 SC 59; Vidya Verma v. Shivnarain, AIR 1956 SC 108
10
Kartick v. W.B.S.I.C, AIR 1967 Cal 231 (234); Dr. Durga Das Basu, Commentary on the Constitution of
India, 8 th Edition, Lexis Nexis, p.635
11
Dr. Durga Das Basu, Commentary on the Constitution of India, 8 th Edition, Lexis Nexis, Volume 1, p. 636
the Constitution of India, defines India as- sovereign, socialist, secular, democratic, republic;
this in fact mandates the State to undertake multi-dimensional socio-economic operations
inspired from Part IV of the Constitution of India, 1950, thus State is empowered to enter into
vast domain of activities, carrying on operations monopolistically or competitively, to ensure
achievement of the one-dimensional goal of welfare state. It can be mentioned with
affirmation that the concept of State as found in Article 12 of the Constitution of India 1950
includes not only the executive and legislative bodies of the Union and of the States, but also
local bodies (i.e. municipal corporations) and other bodies, including the State's
instrumentalities or agencies, or bodies (or institutions) discharging the instrumentalities or
agencies of the State.12

12
Som Prakash Rekhi v. Union of India, AIR 1981 SC 212 (Para 34 and 37)
TESTS FOR DETERMINATION FOR STATE
The Apex Court has in a serious of judgment deliberated upon certain tests, to determine as to
whether a body/organization or anything of that sort comes under the ambit of other
authorities as defined under Article 12 of the Constitution of India; the underlying principle
being, functional, financial and administrative domination coupled with deep and pervasive
control. In the case of Ajay Hasia v. Khalid Mujib Sehrvadi,13 the Constitutional Bench of the
Apex Court relied upon the test formulated in the case of R.D Shetty v. International
Airport Authority of India14 for the determination of State. The following test for formulated
in R.D. Shetty:

a) If the whole capital stock of the company is owned by the government, it goes a long
way to show that the entity is an instrument of the government;
b) Where the financial assistance offered by the government is so large that it meets
almost all of the expenditure of the company, it is reflective of the fact that the entity
is 'political in nature' impregnated;
c) If the body enjoys “monopoly status” which is State conferred or State protected, it is
indicative of the fact that the body is within the periphery of Article 12;
d) Existence of deep and pervasive control of the government, qua the functioning of the
body, affords an indication that the body is State instrumentality;
e) Where the functions performed by an entity are of public nature, public character or
public significance and are closely linked to the functions of a government, treating
the entity as an instrument of the State is a significant factor.

In the case of, Pradeep Biswas v. Indian Institute of Chemical Biology15, a Seven-Judges
Bench of the Apex Court laid down the following test for the determination of “State”:

a) The test formulated in the case of Ajay Hasia v. Khalid Mujib Sehravardi,16 is not
rigid in principle that needs to be complied with in all cases without exception, to
determine, whether or not, a body (or authority) is a State;

13
AIR 1981 SC 487
14
AIR 1979 SC 1628
15
(2002) 5 SC 11
16
Supra note 9
 b) All cases are to be determined in the light of their respective cumulative facts, that
is to see, whether or not, a body (or authority) is financially, functionally and
administratively dominated by, or is under the control of, the government;
c) The control should not be perfunctory, but it should rather be deep and pervasive;
d) If the control is mere regulatory under a statute (or otherwise), then the body (or
authority) cannot be termed as a State under the aegis of Article 12.

Complementing the decision rendered in the Pardeep Kumar Biswas,17 the Supreme Court in
G. Bassi Reddy v. International Crops Research Institute,18 held that, the International Crops
Research Institute (ICRI) is not a State within the meaning of Article 12 of the Constitution
of India, 1950, as it has been set up as a non-profit research and training center to help
developing countries to alleviate rural poverty (and hunger); ICRI is neither set up by the
government, nor is controlled (or is accountable) to the government, and hence it is outside
the sweep of Article 12 of the Constitution of India, 1950.

In the case of Zee Telefilms Ltd. v. Union of India,19 deliberating upon the term “other
authorities” as appearing in Article 12 of the Constitution of India, 1950, the Apex Court held
that, the following bodies (or authorities) shall fall under the aegis of the term “other
authorities”, as appearing in Article 12 of the Constitution of India, 1950:

a) corporations and companies founded by the State for the purpose of carrying out
commercial activities, in accordance with Article 298 of the Constitution of India,
1950; where the State provides for the capital, infrastructure, initial investment and
financial aid (and the State exercises the required regulation and control thereof);
b) bodies created for or otherwise engaged in works of a research and development
nature that are in general terms, in the periphery of 'political functions' but may or
may not be in the area of 'sovereign functions';
c) A private agency which discharges a 'public duty' or a 'good public responsibility' and
carries out activities which otherwise fall within the nature of a 'government work.'

Such assessments are independent of their status. In that case, the Apex Court held that the
BCCI (Board of Control for Cricket in India) was not a State under the aegis of Article 12 of
the Indian Constitution of 1950, because the government's control of the BCCI was merely
regulatory in nature and not omnipresent. With affirmation, the court declared that if a private
17
Supra note 11
18
AIR 2003 SC 1764
19
AIR 2005 SC 2677
entity wishes to discharge functions (or duties) that are State functions (or public functions)
that are not forbidden by statute, that private entity may be treated as an instrumentality of the
State.

I. Local Authorities

Section 3(31) of the General Clauses Act, 1897,20 defines the term local authority as follows,
“local authority shall mean a municipal committee, district board, body of port
commissioners or other authority legally entitled to, or entrusted by the government with the
control or management of a municipal or local fund”.

In the case of, Union of India v. R.C Jain,21 the Supreme Court of India held threadbare that,
to be characterized as an “authority” within the periphery of “local authority”, it should have
the following attributes:

a) Must have a distinct legal life as a corporate entity;

b) It must not be a mere government agency, but must be legally an autonomous body
operating in a given area; elected by the inhabitants of the area, either wholly or in
part, directly or indirectly;
c) enjoy a certain degree of autonomy (whether full or partial) entrusted to it by a
statute;
d) Such an organisation must have the ability to collect funds by levying taxes, rates,
charges or fees for the continuation of its operations and the fulfilment of its
objectives.

Following the above laid test, the Apex Court in the present case held that, Delhi
Development Authority being a statutory body, is a local authority within the meaning of
Article 12, for because it was constituted for the avant-garde purpose of development of
Delhi according to government plans, which inherently constitutes a municipal function.

The term “local authorities” has within its sweep- Municipalities, District Boards,
Panchayats, Improvement Trusts, Port Trusts and Mining Settlement Boards.22 In the case of
Electricity Board Rajasthan v. Mohan Lal,23 the Supreme Court of India, categorically stated

20
§3(31), General Clauses Act, 1897
21
AIR 1981 SC 951
22
Rashid Ahmed v. M.B. Kairana, AIR 1950 SC 163
23
AIR 1967 SC 1857
that the term “other authorities” has within its sweep, all authorities created by the
Constitution or Statute, powers qua which are conferred by law.

It should be noted that once an agency has been appointed as a 'authority' in accordance with
the mandate of Article 12 of the Constitution of India, 1950, the following important
incidents follow:

a) The entity shall be subject to the basic rights regime as set out in Part III of the
Constitution of India, 1950 (this means that the acts or decisions of the entity can be
questioned with regard to fundamental rights);
b) The individual is subject to the regime of administrative law; and

The body becomes subject to the written jurisdiction of the Supreme Court pursuant to
Article 32 and of the High Court pursuant to Article 226 of the 1950 Constitution of India.

II. Statutory Bodies

There are four cases of fundamental importance to deliberate upon the issue of statutory
bodies qua Article 12 of the Constitution of India, 1950.

These cases are: Rajasthan State Electricity Board v. Mohanlal,24 where it was held that,
Rajasthan State Electricity Board is “State” within the meaning of Article 12 of the
Constitution of India, 1950; A statutory body constituted under the Electricity Supply Act
may not be excluded from the definition of State pursuant to Article 12 of the Constitution of
India, 1950; Sukhdev v. Bhagatram,25 where it was held that the Life Insurance Company, the
Oil and Natural Gas Commission and the Finance Corporation of India are statutory bodies
within the context of the Constitution of India, 1950.

R.D. Shetty v. International Airport Authority of India,26 it was held that International Airport
Authority of India is a statutory body within the purport of Article 12 of the Constitution of
India, 1950; and Som Prakash Rekhi v. Union of India,27 where it was held that, determination
in regards to whether or not a body corporate is a “State” does not depends on the origin qua
such body corporate in statutory sense of the term, but on the basis of “functional aspects”
vis-à- vis such body corporate, thus it was held that the test is that of “brooding presence of
the State behind the operations of the body, whether statutory or not”.
24
Ibid.
25
AIR 1975 SC 1331
26
Supra note 10
27
AIR 1981 SC 212
III. Authorities Situated Outside India

In the case of Ramamurthy v. Chief Commissioner,28 the Apex Court held that, the words “…
or under the control of the Government of India” appearing in Article 12 of the Constitution
of India, 1950 are to be read as, “…all local or other authorities within the territory of India
or all local or other authorities under the control of the Government of India…”. The effect of
such an interpretation would be that, under the jurisdiction of the Government of India, an
authority outside India would come within the scope of Article 12 of the Constitution of
India, 1950. Article 12 therefore refers to territories outside India managed by India under the
Foreign Jurisdiction Act of 1947, given that they are controlled by the Government of India.
Thus, where the power of the Government of India extends to a body outside India, the
Superior Courts of India can by passing appropriate orders, exercise their 'constitutional
authority' over the actions of such administrative authorities.

28
AIR 1963 SC 1464
WHETHER STATE INCLUDES JUDICIARY
“If there is one principle which runs through the entire fabric of the Constitution, it is the
principle of the rule of law and under the Constitution, it is the judiciary which is entrusted
with the task of keeping every organ of the State within the limits of the law and thereby
making the rule of law meaningful and effective...The judiciary stands between the citizen
and the State as a bulwark against executive excesses and misuse or abuse of power by the
executive.”29

The separation of powers doctrine states that the state has three wings: the legislature, the
executive and the judiciary. The legislature enacts the rules, the executive enforces the laws
and the laws are interpreted by the judiciary. Although, the third wing of the State, that is, the
judiciary is considered as the weakest wing of the State, it is often termed as the watchdog of
the Constitution, for it sees that the legislature and the executive work as per the mandate of
the Constitution, which in turn draws impetus from the will of the people of the country. The
definition of State as contained in Article 12 of the Constitution of India, 1950, in no
specific terms mentions judiciary to be within the periphery of the State, but it is
understood that for administrative purposes albeit the working of the court, and not for the
dispensation of justice, judiciary falls within the terrain of the State. In no uncertain terms, in
the case of Kesavananda Bharti v. State of Kerala,30 the Apex Court held that independence
of judiciary is a part of the basic structure doctrine. The mention of the word includes in
Article 12 of the Constitution of India, 1950 is of great relevance. The mention of this word
indicates that the definition of State in Article 12 is not exhaustive. Thus, even though Article
12 specifically speaks of the Government and the Legislature, there might be other
instrumentalities (or agencies) of the State, within its periphery. The non-counting of
judiciary, hence, does not necessarily indicate that the courts are outside the purview of
Article 12.31

In the case of Paramatma v. Chief Justice,32 it was categorically held that, the Chief Justice of
High Court, having the power to make statutory appointments, will be within the purview of
Article 12, under the expression “other authorities”. Further in the case of, State of Bihar v.

29
S.P. Gupta v. Union of India, AIR 1982 SC 149 (p.197-198)
30
1(1973) 4 SCC 255
31
Ujjam Bai v. State of U.P., (1963) 1 SCR 778, Ayyangar, J. dissenting; Naresh v. State of Maharashtra,
(1966) 3 SCR 744, Hidayatullah, J. dissenting; Aman Preet Singh v. Government of India, AIR 1996 P&H 284
32
AIR 1964 Raj 13
Bal Mukund,33 the High Court has been held to be an authority within the scope of Article 12
of the Constitution of India, 1950, and its administrative decision is subject to its written
jurisdiction on the judicial side of the issue.. Observations made in the case of Rajasthan
State Electricity Board v. Mohan Lal,34 are trite and they still hold the ground. In this case it
was held that, the expression other authorities appearing in Article 12 of the Constitution of
India, 1950 need not be construed ejusdem generis.

It was further observed that, the definition of State in Article 12 of the Constitution of India,
1950, is not exhaustive. Based on the jurisprudential analysis of Article 12 pursuant to this
case, scholars in the likes of Dr. Durga Das Basu observed that, there appears no reason as to
why the judicial organ of the State be excluded from the ambit of Article 12 merely because
it expressly mentions only the Executive and the Legislative branches. In the recent case of,
Riju Prasad v. State of Assam,35 in settling the dispute as to whether or not the judiciary falls
within the scope of Article 12 of the Constitution of India of 1950, the Supreme Court of
India held as follows: the description of the State referred to in Article 12 is contextual,
depending on all the relevant facts, including the provisions of Part III of the Constitution
concerned. Clearly, the description is inclusive and not exhaustive. Therefore if the
Government and Parliament of India as well as the Government and Legislature of each State
have been included in the absence of the judiciary, it is evident but not definitive that it is
appropriate to exclude the judiciary.

33
AIR 2000 SC 1296: (2000) 4 SCC 640
34
(1967) 1 SCR 377 (385)
35
2015 SCC 613 ⁋60
CONCLUSION
With globalisation, liberalisation and privatisation affecting the Indian coast, some scholars
have serious doubts as to the enforcement and effectiveness of fundamental rights in India,
mainly on two counts:
1. Given the the role of private enterprise and the decreasing role of the State, more private
businesses than the State would breach fundamental rights;
2. The private corporation, like any other legal entity, can claim constitutional rights for itself
without being responsible for their violations, as the State is (usually speaking) responsible.

With regard to the first premise, it can be stated that the State cannot exempt itself from the
responsibility of respecting and safeguarding the fundamental rights of citizens merely by
increasing the role of private enterprises. Judicial wing of the State as the custodian of the
Constitution is enrobed with the responsibility to ensure that fundamental rights of the
citizens of the country are protected in all eventualities, even if it demands, taking an activist
view (salus populi est suprema lex). As regards to the second premise, it can be said that, the
decisions rendered by the Apex Court in the following two cases, M.C. Mehta v. Union of
India36 and Indian Council for Enviro-Legal Action v. Union of India,37 are not only sufficient
to deal with ensuing issue, but are also well reasoned and far-reaching. In M.C. Mehta v.
Union of India,38 the question before the Supreme Court was whether or not a private
company (Shriram Food & Fertilizers Limited) was a "State" within the scope of Article 12
of the Indian Constitution, 1950?

The Supreme Court noted that a non-governmental company can be put within the periphery
of Article 12 if it meets the organisation vis-à-vis instrumentality test qua the government for
purposes of State control and regulations (and the type of public role that the non-
governmental company performs). In accordance with Article 12 of the Constitution of India,
1950, a purposeful understanding of the term State is required, so that the definition of the
term State is inclusive and exhaustive and not exclusive and restrictive. This is more so
because the defence of fundamental rights by people and individuals in general) is the way in
which the word State is perceived and viewed, albeit as a direct consequence of it. What is

36
(1987) 1 SCC 395
37
(1996) 3 SCC 463
38
Supra note 36
necessary, therefore is the "beneficial construction of the term State in relation to Article 12
of the 1950 Constitution of India."
BIBLIOGRAPHY
Primary Sources:

1. The Constitution of India, 1950

2. The General Clauses Act, 1897
3. The Tamil Nadu Registration of Societies Act, 1975

Secondary Sources:

1. Bryce, Studies in History and Jurisprudence, Volume II, p.53

2. Machiavelli, The Prince, Volume XXXVI, Part 1, Harvard Classics, P.F. Collier &
Sons, (1909-1914)
3. A.C. Dicey, The Law of the Constitution, Elibron Classics (2000)
4. Black’s Law Dictionary, Sixth Edition (Centennial Edition 1891-1991), p. 1407
5. Dr. Durga Das Basu, Commentary on the Constitution of India, 8th Edition, Lexis Nexis
6. P.M. Bakshi, Constitution of India, Universal Law Publishing Co., Eighth Edition
(2007), p. 10
7. M.P. Jain, Indian Constitutional Law, Lexis Nexis
8. https://www.manupatrafast.in
9. https://www.scconline.com
10. https://www.jstor.org/