Article 12 – Definition of State

The constitution of our country may be regarded as the fundamental law of the land, pertaining to the institution of the State and government of that country. It delineates the powers and responsibilities of the various instrumentalities of the state, impose limitations upon them, and regulate the relations between the state and its population. It also embodies, and even strives to construct, a common national, political and constitutional identity for the people it covers.

Part III of the constitution contains a long list of fundamental rights. This chapter of the constitution of India has very well been described as the Magna Carta of India.[1] As early as 1215 the English people exacted an assurance from the king John for respect of the then ancient liberties. The Magna Carta is the evidence of their success which is a written document. This is the first written document relating to the fundamental rights of citizens. Thereafter, from to time, the king had to accede to many of this subjects. In 1689, the Bill of Rights was drafted consolidating all important rights and liberties of the English people. The France Declaration of Rights of Man and the Citizen (1789) declared the natural, inalienable and sacred rights of man. Following the spirit of the Magna Carta of the British and the Declaration of the Rights of Man and the Citizen of France, the Americans incorporated the Bill of the Rights a Constitution status. Thus when the Constitution of India was being framed the background for the incorporation of Bill of Rights was already present. The Framers took inspiration from the incorporated a full Chapter in the Constitution dealing with fundamental rights. But the declaration of Fundamental Rights in the Indian Constitution is the most elaborate and comprehensive yet framed by any State.

Fundamental rights available against state and not against private individuals.- Individual needs constitutional protection against the state. The rights which are given to the citizens by way of fundamental rights as included in part III of the Constitution area guarantee against State as distinguished from violation of such rights from private parties. Private action is sufficiently protected by the ordinary law of land. In P.D. Shamdasani v. Central Bank of India,[2] the petitioner, in an application under Article 32 of the constitution, sought the protection of the court on the ground that his property right under Article 19(1)(f) and 31 were infringed by the action of another private person-the Central Bank of India. The Supreme Court dismissed the petition and held : “Neither Article 19(1) nor Article 31(1) was intended to prevent wrongful individual’s acts or to provide protection against merely private conduct…The language and structure of Article 19 and its setting in Part III of the constitution clearly show that the Article was intended to protect those freedoms against the state action other than in the legitimate exercise of its power to regulate private rights of property by individuals is not within the purview of the articles.”

Definition of State (Article 12)

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.

The definition of the term “the state” specifies the authorities and instrumentalities functioning within or without the territory of India which shall to be “the state” for the purposes of part III of the constitution. The definition is inclusive and not exhaustive. Therefore, authorities and instrumentalities not specified in it may also fall within satisfy the characteristics of “the state” as defined in this article. The authorities and instrumentalities specified in Article 12 are:

  1. The government and the Parliament of India;
  2. The government and the legislature of each of the states;
  3. All local authorities; and
  4. Other authorities within the territory of India or under the control of the Government of India.

The term ‘state’ thus includes executive as well as the legislative organs of the union and states. It is, therefore, the actions of these bodies that can be challenged before the courts as violating fundamental rights.

Is judiciary included in the word “State”?

The judiciary, it is said though not expressly mentioned in Article 12 it should be included within the expression ‘other authorities’ since courts are  set up by statutes and exercise power conferred by law.[3] It is suggested that discrimination may be brought about….even (by) judiciary and the inhibition of Article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of any one of the three limbs of the State.

The question whether the judiciary was included within the definition of the ‘the state’ in Article 12 arose for consideration of the Supreme Court in Naresh v. State of Maharastra.[4] It was held that even if a court is the State a writ under Article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. Mr. H.M.Seervai is of opinion that the judiciary should be included in the definition of ‘the state’ and a judge acting as a judge is subject to the writ-jurisdiction in the Supreme Court.[5] The courts, like any other organ of the state, are limited by the mandatory provisions of the Constitution and they can hardly be allowed by the fundamental rights under the shield that they have within their jurisdiction, the rights to make erroneous decisions.[6] In view of the judgement of 7 Judge Bench of the Supreme Court in A.R.Antulay v. R.S.Nayak,[7] where it has been held that the court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens, it can be said that the expression “state” as defined in Article 12 of the Constitution includes judiciary also.

State outside Article 12

In pursuing the definition of “the State” in Article 12, the court has time and again reminded that what is the state for the purpose of Article 12 need not be the state for other purposes. For the purpose of wider application of the fundamental rights, State must be defined liberally, but not for other purposes. Thus, an employee of a public corporation may challenge the violation of his fundamental rights by the cooperation, but for that reason he does not become a State employee and cannot seek the protection, for example, of Article 311.[8]

[1] V.G.Ram Chandran, Fundamental Rights and Constitutional Remedies., Vol. 1(1964),p.1.

[2] AIR 1952 SC 59, Vidya Verma v. Shivarayan, AIR 1956 SC 108

[3] V.N.Shukla, Constitution of India, 20-21 (5th ed.)

[4] AIR 1967 SC 1.

[5] H.M.Seervai, Constitution Law of India, 155-154 (1st ed).

[6] D.D.Basu- Commentary on the Constitution of India, 145(5th ed.)

[7] AIR 1988 SC 1531.

[8] Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi,(1975) 1 SCC 421; AIR 1975 SC 1331, 1348; K.C.Joshi v. Union of India, (1985) 3 SCC 153: AIR 1985 SC 1046.

Authored by Shreya Shikha | Edited by Jasleen Dua Kaur.

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