Article 12: What is State?
Date: 3 May, 2020
By: Pradeep Yadav and Dharmendra Yadav
By: Pradeep Yadav and Dharmendra Yadav
Index
1. Article 12
2. Understanding Article 12
3. Meaning of “Other Authorities” under Article 12
4. Whether BCCI is State under Article 12?
5. Whether Judiciary is State under Article 12?
1. Article 12
2. Understanding Article 12
3. Meaning of “Other Authorities” under Article 12
4. Whether BCCI is State under Article 12?
5. Whether Judiciary is State under Article 12?
Article 12
This is the first article which comes under Part 3 (Fundamental Rights) of the Indian Constitution. This article talks about the Definition of the state and the different organs which come under it.
“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 State under Article 12 is applicable only for Part 3 (Fundamental Rights) and Part 4 (Directive Principles of State Policy) of the Constitution of India.
The definition of the State under Article 12 is applicable only for Part 3 (Fundamental Rights) and Part 4 (Directive Principles of State Policy) of the Constitution of India.
Understanding Article 12
If we look into the details of Article 12 then we will realize that “The State” includes the following:
1. The Government and Parliament of India: This means Executive and Legislature is coming under the definition of The State. All the organs and departments of the government like Ministries, Income Tax, and Central Bureau of Investigation are coming under the definition.
2. The Government and Legislature of every State: All the States Executive and Legislature are included in this definition. This also includes the Union Territories and every department of the government which is funded by them.
3. All local and “other authorities” within the territory of India or under the control of the government of India. The term “Local Authorities” is defined under Section 3 (31) of the General Clauses Act.
2. The Government and Legislature of every State: All the States Executive and Legislature are included in this definition. This also includes the Union Territories and every department of the government which is funded by them.
3. All local and “other authorities” within the territory of India or under the control of the government of India. The term “Local Authorities” is defined under Section 3 (31) of the General Clauses Act.
Local Authorities include 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.
Other Authorities is not defined in the constitution or any other statute. Ambedkar defined authority as a body which is created by law and which has got certain powers to make laws, bye-laws or rules.
Other Authorities is not defined in the constitution or any other statute. Ambedkar defined authority as a body which is created by law and which has got certain powers to make laws, bye-laws or rules.
Meaning of “Other Authorities” under Article 12
The meaning of other Authorities under Article 12 can be understood by some of the decided cases by the courts. In Rajasthan State Electricity Board v. Mohanlal, AIR 1967, it is given that “other authorities is wide enough to include within it every authority created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions and functioning within the territory of India or under the control of the Government of India.”
In Ramana Davaram Shetty’s case, Court laid down the guidelines for deciding any authority as Other Authority under Article 12:
1. If the entire shares are owned by the Government.
2. If almost the entire expenditure is done by the Government.
3. If there is a state conferred monopoly in that corporation.
4. There is deep and pervasive control by the Government.
5. If the functions by the corporation are of Public importance.
6. If a department of the Government is transferred to a corporation.
1. If the entire shares are owned by the Government.
2. If almost the entire expenditure is done by the Government.
3. If there is a state conferred monopoly in that corporation.
4. There is deep and pervasive control by the Government.
5. If the functions by the corporation are of Public importance.
6. If a department of the Government is transferred to a corporation.
Whether BCCI is State under Article 12?
The Bhartiya Cricket Control Board of India (BCCI) is having a monopoly in the game of Cricket. This board is registered under the Tamil Nadu Societies Registration Act, 1975. There are 2 important cases in which the Supreme Court decided if this Board is coming under the definition of State or not?
BCCI is not coming under the definition of State as decided under Zee Telefilms case.
Zee Telefilms v. Union of India; 2005
This case is related to the tendering process of BCCI in which Zee telefilms filed the suit contending that the action of the Board in terminating the contract is arbitrary and thus violates Article 14 of the Constitution. It was to be decided if BCCI is coming within the meaning of ‘State’ under Article 12 or not? In this case, the court decided that there is no “Deep and pervasive State Control” of the State. There is no part of the Share Capital of BCCI which was owned by the state. There is hardly any financial aid given by the state to BCCI. So BCCI won’t be coming under the Definition of the State.
This case is related to the tendering process of BCCI in which Zee telefilms filed the suit contending that the action of the Board in terminating the contract is arbitrary and thus violates Article 14 of the Constitution. It was to be decided if BCCI is coming within the meaning of ‘State’ under Article 12 or not? In this case, the court decided that there is no “Deep and pervasive State Control” of the State. There is no part of the Share Capital of BCCI which was owned by the state. There is hardly any financial aid given by the state to BCCI. So BCCI won’t be coming under the Definition of the State.
BCCI v. Cricket Association of Bihar; 2015
In this case, Court decided that though the BCCI is not coming under the definition of State due to the various reasons given in the case of Zee Telefilms, BCCI is performing Public Function and is amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
In this case, Court decided that though the BCCI is not coming under the definition of State due to the various reasons given in the case of Zee Telefilms, BCCI is performing Public Function and is amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
Whether Judiciary is State under Article 12?
Judiciary is an important part of the 3 Pillars of the State. It is important to decide if Judiciary is coming within the definition of ‘State’ as given under Article 12 of the Constitution. Article 12 doesn’t expressly mention the word Judiciary under the ‘State’ definition but after seeing various judicial interpretations it is possible to see it falling under the category of “other Authorities”.
In Prem Chand Garg v. Excise Commissioner, AIR 1963, It is held that the when the Judiciary acts in the Judicial capacity, it is not included within the meaning of “other authorities” and therefore it is not stated under Article 12 but when it acts in an administrative capacity, it is included within the meaning of the term “other authorities”.
It is a settled position by the Supreme Court that it will not come under the definition of state while discharging the judicial functions. The Judiciary will come under the definition of state while they are performing the administrative functions like the appointment of the Judges.
