PART-III of Indian Constitution Act, 1950 includes the fundamental rights of the
citizen of India. Article 12 primary give us the definition of the State.
Fundamental rights are challenged only against the State not against the private
entities. These rights are also known as rights against the state.
Article 12 of Indian Constitution states that:
In this part, unless the context otherwise requires, the State
Government and Parliament of India and the Government and the Legislature of
each of the State and all local or other authorities within the territory of
India or under the control of the Government of India.
The main component of article 12 which are included in term State are:
- Government & Parliament of India
- Government & Legislature of States
- Local Authorities
- Other Authorities
Government & Parliament of India:
It includes the Central Government of India, Rajya Sabha, Lok Sabha & President
Government & Legislature of States:
It included the State Government of any state of India, State Legislative
assembly, State Legislative Council & Governor of the State.
According to General Clause Act, 1897 'local authorities' includes the
municipalities, panchayats, district board, legal entitled by the government,
mining settlement authorities. The meaning of local government is also given in
List II, Entry no. 5 of VII Schedule.
In Mohammad Yasin vs. The Town Area Committee, Jalalabad and Ors
., it was
held that the bye-laws made by committee come under the State which was
infringing the rights of the petitioner and subsequently the respondent must pay
the cost to the petitioner. The petitioner is free to trade as a wholesaler.
This is the most ambiguous part of this article. There are many tests which
originated with passage of time. As 'other authorities' is neither defined in
Constitution of India, 1950 nor in General Clause Act, 1897.
In University of Madras v. Shanta Bai
, a new principle was evolved which was
'ejusdem generis' which means 'of like nature'. Through this principle whosoever
be performing the governmental function will be under the umbrella of 'other
- Creation Test:
In the case of Electric Board of Rajasthan v. Mohan Lal , it was held that a
body or department formed by the virtue of any statute or by the Constitution,
then it will be covering the term 'other authorities'. This case till some
extent declines the principle of ejusdem generis.
For example: CBI is established under DSPE Act, 1946.
- Instrumentality Test:
In the case of Ajay Hasia v. Khalid Mujeeb , it was held by the court that
Society established under Societies Registration Act, 1898 will come under other
If either the condition is fulfilled then it will fall under the term State:
- Entire share capital is held by the Government
- Financial assistance provided is that it meets almost entire expenditure
of the corporation.
- Is the corporation is enjoying monopoly either by state conferred or by
- Deep and pervasive control of State which indicates that corporation is
a state agency.
- The function of the corporation is in public interest and closely
related to governmental function.
- Any corporation is formed by breaking down of any of the department.
In AISSF Association v. Defense Minister-cum-Chairman, B.O.G.S.S. Society
it was held that Sainik School Society fall under the term State as entire
funding of it was done by State Government and Central Government.
In case of Central Inland Water transport Corporation v. Brojo Nath Ganguly
the court held that it was wholly owned by the Central Government by applying
the above test.
In case of General Manager, Kisan Sakhari Chini Mills Ltd., Sultanpur, U.P.
v. Satrughan Nishan
, it was held that this corporation is not included
in State as it only holds 50% share in the company. Expenditure of the mill was
also not met by government. And also there was no deep and pervasive control
over the mill.
In Zee Telefilms & Ors. v. Union of India
, it was held if private
body perform public function that is amenable under article 226 of the
constitution even though private body is not included in meaning of article 12
of the constitution. The reason behind that BCCI is not liable because of the
Does the word State include Judiciary?
In case of A.R.Antulay v. R.S.Nayak
, it was held that the term 'State'
under article 12 of the Constitution of India, 1950 includes judiciary too but
cant issue any order or issue.
- AIR 1952 SC 115
- AIR 1954 Mad. 67
- AIR 1967 SC 1857
- AIR 1981 SC 487
- AIR 1989 SC 88
- 1986 3 SCC 156
- AIR 2003 SC 4531
- AIR 2005 SC 2677
- AIR 1988 SC 1531
J.N.Pandey (55th Edition)