State under Article 12

Also called: Article 12, Definition of State · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Beyond NCERT

Meaning

Article 12 says who counts as "the State" for Part III (Fundamental Rights). It covers the Government and Parliament of India, the Government and Legislature of each state, and "all local or other authorities" within India or under the control of the Government of India [1]. This matters because most fundamental rights protect people only against the "State". So the first question in any rights case is whether the body that acted is the "State".

Explanation

What the text says and how it works

• Article 12 is the entry point to Part III. It defines "State" for the whole of Part III, not for the entire Constitution.
• The definition is inclusive. The word "includes" gives a list but does not close it.

• This left room for the courts to widen it later.

• Why it matters for remedies:

• A person can go to the Supreme Court under Art. 32 only when a fundamental right is broken.
• Most rights can be broken only by the "State".
• So if a body is not the "State", an Art. 32 writ usually cannot be used against it.

The four parts of the "State"

• Union government and Parliament.
• State governments and state legislatures.
• Local authorities: municipalities, panchayats and district boards.
• Other authorities: the open-ended part. Most court cases on Article 12 are about this phrase.
• In the Constituent Assembly, Dr. B.R. Ambedkar (Chairman of the Drafting Committee) said "other authorities" meant bodies that have "the power to make laws or the power to have discretion" [1].

How the courts widened "other authorities"

• Statutory bodies (bodies created by an Act of a legislature): Rajasthan SEB v. Mohan Lal (1967) held that an electricity board set up by statute is an "other authority".
• Instrumentality or agency test: R.D. Shetty v. International Airport Authority (1979) held that a body working as a tool or agent of the government is the State.

• Instrumentality or agency means a body set up or run so closely by the government that it is really the government acting under another name.

• Signs of State control: Ajay Hasia v. Khalid Mujib (1981) held that even a registered society can be the State. It listed these signs:

• the government owns the share capital;
• the government gives most of the funds;
• the government has deep control;
• the body does a public function;

• a government department was transferred to the body.

• "Deep and pervasive control" test: Pradeep Kumar Biswas v. IICT (2002, seven judges) held that a body is the State if the government controls it financially, functionally and administratively. This is the test used today.

Limits: who is NOT the State

• BCCI: Zee Telefilms v. Union of India (2005) held that BCCI is not the State, because the government does not control it financially or administratively.

• A High Court can still hear a writ against BCCI under Art. 226, because BCCI does public functions such as picking the national team.

• Courts acting judicially: when a court acts as a court (judicially), it is not the State. A judicial order cannot be challenged as a breach of fundamental rights through a writ (Naresh Shridhar Mirajkar, 1966).

• When a court acts administratively, for example when it makes staff rules, it may count as the State.

• Private persons: usually outside Article 12. Some rights still bind them (see below).

In the Constitution and practice

• Where it sits: Article 12, the first article of Part III (Arts. 12–35).
• Constituent Assembly: it was Draft Article 7 of the 1948 Draft Constitution and was debated on 25 November 1948 [1].
• Some members thought "other authorities" was too vague [1].

• Others did not want district boards and municipalities called "the State" [1].

• Link with Article 13: Art. 13(2) says "the State" shall not make any law that "takes away or abridges" fundamental rights [2]. Article 12 decides who that "State" is, so the two articles work together as the base of judicial review (the power of courts to strike down laws or actions that break the Constitution).

• Art. 226 is wider than Art. 32:
• A High Court can issue writs to "any person or authority".
• So even a private body doing a public duty can face a writ.

• Art. 32 needs a broken fundamental right, and that usually needs the "State".

• Horizontal application: using a fundamental right against a private person or body. ("Vertical" means citizen against State.)

• Rights that bind private persons by their own words: Art. 15(2) (access to shops, hotels, wells, tanks and public places), Art. 17 (abolition of untouchability), Art. 23 (ban on trafficking, begar and forced labour), Art. 24 (no child below 14 in factories, mines or hazardous work).
• Kaushal Kishor v. State of Uttar Pradesh (3 January 2023): a Constitution Bench of five judges, deciding 4:1.
  • The question was whether a right under Article 19 or 21 can be claimed against anyone other than the "State" or its instrumentalities [3].
  • The majority held that Arts. 19 and 21 can be enforced against non-State actors too.
  • The State has a constitutional duty to make sure citizens' rights are not broken even by non-State actors [3].
  • The Court said that enforcing these claims against non-State actors may need legislative intervention (a law made by the legislature) [3].
  • Justice B.V. Nagarathna dissented on horizontal application.

Don't confuse with

• "Other authorities" vs "any person or authority": Art. 12 uses "other authorities" for Part III. Art. 226 uses "any person or authority", so a High Court can issue a writ to a non-State body doing public duties, such as BCCI.
• Instrumentality test (R.D. Shetty, 1979) vs deep and pervasive control test (Pradeep Kumar Biswas, 2002): the first asks whether the body acts as the government's agent. The second, from a bench of seven judges, needs financial, functional and administrative control together.
• Vertical vs horizontal application: vertical means rights enforced against the State, which is what Art. 12 is about. Horizontal means rights enforced against private persons: Arts. 15(2), 17, 23, 24 by their own words, and Arts. 19 and 21 after Kaushal Kishor (2023).
• Judiciary acting judicially vs administratively: a judicial order is not "State" action (Naresh Shridhar Mirajkar, 1966). A court's administrative acts, such as staff rules, may be.

Prelims Hooks

• Art. 12 defines "State" for Part III only. It was Draft Article 7, debated on 25 November 1948 [1].
• Case–test pairs: R.D. Shetty (1979) → instrumentality or agency test. Ajay Hasia (1981) → a registered society can be the State. Pradeep Kumar Biswas (2002) → "deep and pervasive control" test.
• Rajasthan SEB v. Mohan Lal (1967) → statutory bodies such as an electricity board are "other authorities".
• Trap: BCCI is not the State under Art. 12, but a writ under Art. 226 can still lie against it (Zee Telefilms, 2005).
• Rights that bind private persons by their own words: Arts. 15(2), 17, 23, 24. Kaushal Kishor (2023, 4:1) extended this to Arts. 19 and 21 [3].
• Trap: a court acting judicially is not the State (Naresh Shridhar Mirajkar, 1966).

Mains Points

• Widening "State" vs privatisation:
• The government now hands many services to private firms and societies.
• The instrumentality and deep-control tests, along with Art. 226, keep this outsourced public power answerable for rights.

• The tests depend heavily on the facts of each case, so the result is often uncertain. BCCI escapes Art. 12 but not Art. 226.

• Horizontal rights after Kaushal Kishor (2023):

• The ruling protects people against powerful private actors and gives the State a duty to stop rights being broken by them [3].
• Critics, including the dissent, say it gives no clear rules on who owes what duty. The judgment itself says legislation may be needed [3].

• A balanced answer: Parliament should set out private duties in law rather than leave them to case-by-case court decisions.

• Accountability gap: the 1948 fear that "other authorities" was too vague [1] has turned into a strength. The open wording lets courts keep pace with new forms of government power. This fits Ambedkar's idea of bodies with "the power to make laws or the power to have discretion" [1].

Related concepts

• Horizontal application of fundamental rights
• Laws inconsistent with fundamental rights
• Doctrine of eclipse
• Doctrine of severability
• Doctrine of waiver
• Reading down
• Right to property
• Article 31A
• Article 31B
• Eminent domain

Read more

• The 'State', Article 13 and the right to property