ARTICLE 12: DEFINITION OF STATE“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 of India.”

Article 226: Power of High Courts to issue certain writs:

“(1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

A.V. DICEY: THE LAW OF THE CONSTITUTION (2000) Legislature (i.e., Parliament) is the supreme law

making body. Behind legal sovereign, there is political sovereign

which is the electorate. The legal sovereign has to act in accordance with

the political sovereign. As per A.V. Dicey, the test to determine, whether

or not, a person or a body is a legal sovereign, is to see, whether or not, it possesses the power to make or unmake the laws.

DEFINITION OF STATE “A people permanently occupying a fixed

territory bound together by common-law habits and custom into one body politic exercising, through the medium of an organised government independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and entering into international relations with other communities of the globe.” (See: United States v. Kusche, D.C. Cal., 56 F. Supp. 201, 207, 208)

DEFINITION OF STATE The term ‘State’ may be defined as, the organisation of social life

which exercises sovereign power in behalf of the people. (Delany v. Moraitis, 136 F. 2d 129, 130)

The term ‘State’ may be defined as a body politic or a society of men. (Beagle v. Motor Vehicle Acc. Indemnification Corporation, 44 Misc. 2d 636)

The term ‘State’ may be defined as a body of people occupying a definite territory and politically organised, under one government. (State ex. rel. Maisano v. Mitchell, 231 A. 2d 539, 542)

The term ‘State’ has within its sweep governmental agencies authorised by the State, such as municipal corporations. (Black’s Law Dictionary, Sixth Edition)

DEFINING “STATE”: INDIAN CONTEXT The body politic as organised for supreme civil rule

and government. (Section 3 (58) of the General Clauses Act, 1897; Article 3 (Explanation I), Constitution of India, 1950)

The word ‘government’ is to include ‘departments of the government’.

An ‘Act of State’ is wide enough to encompass ‘executive orders’ of the government or a department or of any institution managed by a department of the government. Every act of the President and of the Governor is construed as an ‘Act of the State’.

The term ‘State’ includes: Central Government and State Governments; Parliament and State Legislatures; Local Authorities; and Other Authorities, within the territory of India, or under the control of the Central Government.

Even though a ‘body of persons’ may not constitute ‘State’ within the instant definition (Article 12), a writ petition under Article 226 of the Constitution may lie against it, either on constitutional grounds, or on grounds of contravention of some provisions of the Constitution outside the ambit of Part III of the Constitution, as for example, where such a body has public duty to perform, or where its acts are supported by the State or public officials. (Kartick v. W.B.S.I.C., AIR 1967 Cal 231)

ANDI MUKTA SADGURU V. V.R. RUDANI, (1989) 2 SCC 691

Article 226 confers wide powers on High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English Law. Under Article 226, writs can be issued to “any person or authority”.

The term “authority” used in Article 226 must receive a liberal meaning unlike in context it receives under Article 12, which is relevant only for the purpose of enforcement of fundamental rights under Article 32.

Article 226 confers power on the High Courts to issue writs for enforcement of fundamental rights as well as non-fundamental rights.

ANDI MUKTA SADGURU V. V.R. RUDANI, (1989) 2 SCC 691

The words “any person or authority” used in Article 226 are- not confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty.

Form of the body is not relevant; nature of duty imposed on the body is relevant.

TESTS FOR THE DETERMINATION OF ‘STATE’

Underlining Principle: ‘Functional, Financial and Administrative Domination’ coupled with ‘Deep and Pervasive Control’.

In Ajay Hasia v. Khalid Mujib Sehravardi (AIR 1981 SC 487), the Constitution Bench of the Apex Court relied upon the ‘test’ formulated in the case of R.D. Shetty v. International Airport Authority of India (AIR 1979 SC 1628)

In Pradeep Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, Seven Judges Bench of Supreme Court held:

(a). Test formulated in Ajay Hasia is not rigid in principle that needs to be

complied with in all cases without exception.(b). All cases are to be determined in the light of their specific cumulative facts,

to see, financial, functional and administrative domination coupled with the government control. Control should not be perfunctory, but should be deep and pervasive.

Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649:

It was held that, functions or duties of a public nature performed by a body not prohibited by law does not make the body “State” for the purposes of Article 12. It was held that BCCI is not a State within the purport of Article 12.

Board of Control for Cricket in India v. Cricket Association of Bihar, (2015) 3 SCC 251: It was held that-

BCCI is amenable to writ jurisdiction under Article 226 of the Constitution;

BCCI’s control over the sport of cricket in India is deep and pervasive, it enjoys a monopoly status in the game of cricket in India;

Owing to the doctrine of fairness and good faith, BCCI has a huge responsibility at its peril to discharge, that is, to look after the sport of cricket in India;

BCCI is a private body formed under the Tamil Nadu Registration of Societies Act, 1975, it is subject to the writ jurisdiction of the Constitution vide Article 226, with little regards to the fact that it is not financially, functionally or administratively dominated by the Government.

LOCAL AUTHORITIES Section 3(31), General Clauses Act, 1897: “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.”

Municipal Corporation of Delhi v. Birla Cotton, Spinning & Weaving Mills, Delhi (AIR 1968 SC 1232): ‘Local Bodies are subordinate branches of governmental activity…They are political sub-divisions and agencies which exercise a part of State functions…As they are intended to carry on local self-government…they function under the supervision of the government’.

To be characterised as an ‘authority’ within the sweep of ‘local authority’, it should the following attributes:

It must have a separate legal existence as a corporate body; It must not be mere government agency but must be legally

an independent entity, functioning in a defined area; It must enjoy a certain degree of autonomy; It must have power to raise funds for furtherance of its

activities. (Union of India v. R.C. Jain, AIR 1981 SC 951)

Local Authorities- has within its sweep- Municipalities, District Boards, Panchayats, Improvement Trusts, Port Trusts and Mining Settlement Boards.

(Rashid Ahmed v. M.B. Kairana, AIR 1950 SC 163; State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634)

STATUTORY BODIES Carrying out activities in the nature of trade and commerce

cannot oust a statutory body established under an Act from the definition of State under Article 12 of the Constitution of India, 1950 (Rajasthan Electricity Board v. Mohanlal, AIR 1967 SC 1857)

Sukhdev v. Bhagatram (AIR 1975 SC 1331): It was held that, Life Insurance Corporation, Oil and Natural Gas Commission and the Financial Corporation are statutory bodies within the meaning of Article 12.

Whether or not a body corporate is a ‘State’ does not depends on its origin in the statutory sense but on the basis of ‘functional aspects’ qua the body corporate. The test is that of “brooding presence of the State behind the operations of the body, whether statutory or not.” (Som Prakash Rekhi v. Union of India, AIR 1981 SC 212)

Madhya Pradesh Cooperative Dairy Federation Limited v. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221:

Federation in the present case was a ‘federal society’ registered under the Madhya Pradesh Cooperative Societies Act, 1960.

Federation undertook the work of not just research and training but also monitoring of other such societies established under it, as an Apex Body.

Guidelines issued by the Federation were binding on the societies established under it.

The Court held that, the Federation carries out not only commercial activities, but also works for achieving- better economic development and public health; it caters to the spirit of Article 47.

It was concluded by the court that, by virtue of the operations carried out by the Federation, it can be termed as an agency or instrumentality of the State.

Dalco Engineering (P) Ltd. v. Satish Prabhakar, (2010) 4 SCC 378:

It was held that, the terminology, “corporation established by or under a Central, Provincial or State Act”, as has been used in several enactments intends to convey a standard meaning.

This terminology makes reference to “statutory corporations” as contrasted from “non-statutory companies”.

An attempt to include private sector within the purport of this terminology will amount to the over-ruling of the clear enunciation in S.S. Dhanoa v. Municipal Corporation of Delhi, (1981) 3 SCC 431.

It was further held that, the word “established” refers to coming into existence by virtue of an enactment. It does not refers to a company, which, when comes into existence, is regulated by, or is governed in accordance with, the provisions of the Companies Act.

Statutory corporations, no doubt owe their existence to legislative enactments but nonetheless, they are incorporated (or registered) under the Companies Act.

AUTHORITIES SITUATED OUTSIDE INDIA

The words, “…or under the control of the Government of India” appearing in Article 12 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…”. (Ramamurthy v. Chief Commissioner, AIR 1963 SC 1464; Masthan Sahib v. Chief Commissioner, AIR 1963 SC 533)

Where the control of the Government of India extends to an authority outside India, the Superior Courts in India can exercise their ‘Constitutional Jurisdiction’ over the acts of such administrative authorities by passing suitable orders.

Lena Khan v. Union of India, (1987) 2 SCC 402: It was held that, an instrumentality or agency of the State having operations outside India cannot comply with municipal law as prevailing abroad, which is, in violation of the provisions of the Constitution of India, 1950.

WHETHER ‘STATE’ INCLUDES ‘JUDICIARY’?

Position in the United States: Virginia v. Rives, (1880) 100 U.S. 313: “It is

doubtless true that a State may act through different agencies- either by its legislative, its executive, or its judicial authorities; and the prohibitions of the Amendment (Fourteenth) extend to all actions of the State denying equal protection of laws, whether it be action by one of these agencies or by another.”

Ex parte Virginia, (1880) 100 U.S. 339 (347): “A State acts by its legislative, its executive, or its judicial authorities; it can act in no other way.”

Shelly v. Kraemer, (1948) 334 U.S. 1: It was held that, it cannot be suggested that a court action is immune from the operation of the provisions of the Constitution simply because it is an act of the “judicial branch” of the State.

Rogers v. Richmond, (1961) 365 U.S. 534: It was held that:

“If decision of the court is intra-vires in the legal sense of being within the jurisdiction conferred by a statute, it may be legally valid; but when it contravenes a fundamental right guaranteed by a written Constitution, it becomes constitutionally invalid.”

The prevailing position that entails in the United States is this:

“A conviction will fall (or be quashed) if the accused succeeds to establish that, the method of trial or the judicial strategy devised to reach the verdict was bad of the equal protection clause.”

Position in India: Naresh Shridhar Mirajkar v. State of

Maharashtra, (1966) 3 SCR 744: It was held as follows-

• It is singularly in-appropriate to assume that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens.

• Whether the findings of fact recorded by the judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity can be considered and decided if the party aggrieved by the decision of the judge takes the matter up before the appellate court.

Independence of judiciary is an essential part of the basic structure doctrine. (Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225)

“The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive”. (S.P. Gupta v. Union of India, AIR 1982 SC 149)

A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531: It was held that, a judicial order which violates a fundamental right is without jurisdiction, and therefore is a nullity and may be rectified by the Superior Court which passed that order, in exercise of its inherent jurisdiction.

State of Bihar v. Bal Mukund (AIR 2000 SC 1296): It was held that, the High Court is an ‘authority’ within the purport of Article 12 and its administrative decision is amenable to its writ jurisdiction on the judicial side.

Riju Prasad v. State of Assam, 2015 SCC Online SC 613: It was held as follows:

“The definition of ‘the State’ under Article 12 is contextual depending upon all relevant facts including the concerned provisions of Part III of the Constitution. The definition is clearly inclusive and not exhaustive. Hence, omission of judiciary when the Government and Parliament of India as well as Government and Legislature of each State has been included is conspicuous but not conclusive that judiciary must be excluded.”

CONCLUSION: Meaning of the term ‘State’ as contained in

Article 12 is inclusive and exhaustive, and is not exclusive and restrictive.

A non-government company can be placed within the periphery of Article 12, if for reasons of State Control and Regulations it satisfies the agency- instrumentality test. (M.C. Mehta v. Union of India, (1987) 1 SCC 395)

If by actions of private corporate bodies, the fundamental rights qua individuals are violated, then the Court would not accept the argument that, it cannot proceed against them for the reason of such private corporate bodies not falling within the purport of Article 12. (Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 463)