“Editor’s Note: The paper deals with the definition of State under Article 12 of the Constitution of India and the author’s personal views on the definition and its implications in terms of case laws.”
The debate that whether an expansive definition of state is need of the hour is a very pertinent question facing the constitutional law experts. Article 12 is a very important section as it defines the term ‘state’. The importance is due to the fact that in view of the traditional constitutional law experts the fundamental rights which are enumerated in Part III of the constitution can only be claimed against the state and not the private individuals. Since according to the traditional view fundamental rights can only be claimed against the state defining state becomes ever important. The debate is whether the definition is so narrow that it is defeating the purposes for which the fundamental rights were introduced in the first place, Or is too broad that inclusion of so many entities is making the courts very busy because in that case people can even in the smallest of instances claim that the state has violated their fundamental rights. The essence is therefore to find a balance so that the definition is neither too broad nor too narrow though personally I feel that a definition that is on the broader side will result in better protection of the fundamental rights.
The most important characteristic of the definition of state under Article 12 is that it has been specifically mentioned that the definition is not exhaustive and inclusive in nature. Thus it is implying that authorities and instrumentalities that are not specified in the definition of state may be included if they satisfy the characteristics of the state as defined in Article 12. The authorities and the instrumentalities under Article 12 have been defined as
- The Government and the Parliament of India
- The Government and the legislature of each of the states
- All local authorities
- Other authorities within the territory of India or under the control of the Government of India.
The debate regarding the definition of state is based on two contentions according to me. The first debate is regarding the scope of the definition itself that is whether the definition of the state is too broad or too narrow. The second debate is regarding the constituents of the definition to be more specific point number 3 and 4 which deal with the “other authorities” and the “local authorities”. The debate is as to what constitutes the local and other authorities and who decides this?
The constituents of “other authorities” were laid down in the case of “Electricity Board, Rajasthan V. Mohan Lal” The court said that other authorities would include all authorities created by the constitution or statute on whom powers are conferred by law. The court added that it was not necessary for them to be performing Government or Sovereign functions. The court in this case held that Electricity Board would be considered state and this overruled a previous case called “University of Madras v. Shantha Bai” where the court had ruled that the university was not a state. “Sukhdev Singh v. Bhagatram” was another important case where it was held that statutory corporations like the ONGC and LIC were held to be state. The case of “Ajay Hasia v. Khalid Mujib” is one of the most important cases with regard to the definition of state. This is because it lays down the test for a body to be called an instrumentality or agency of the state. These factors were summarised as
- If the entire share capital is held by the government then it can be reasonably inferred that the corporation is a state controlled entity.
- If the financial assistance of the state is so much that it meets the entire expenditure of the corporation, it would mean that the entity is a state controlled organization.
- If the corporation enjoys a state conferred monopoly
- Existence of deep and pervasive state control is another indication of state control
- The functions performed by the corporation is also an indication of the corporation being an instrumentality of the state, that is if the corporation performs public functions or closely related to government functions, it would be considered an instrumentality of the state.
These six factors which the court uses to identify the instrumentalities of state are very broad in nature and this is very helpful as it gives a lot of leeway for most of the organizations and agencies to be classified as state. I am in favour of a very broad definition of state because it is fulfilling the purpose for which the Fundamental Rights were created in the first place. The traditional view that fundamental rights can only be enforced against the state makes it doubly important that the definition of the state is indeed a very broad one. However I also support the view that fundamental rights should also be enforceable against private individuals. The assumption that fundamental rights can only be denied to a person by the state is somewhat faulty according to me and it is stifling the protection of human rights.
The next very important case is the case of “Pradeep Kumar Biswas v. Indian Institute of Chemical Biology” it essentially overruled the Ajay Hasia case. The court ruled that there is no hard and fast rule that registered societies having link with the government are always state. “Zee Telefilms Ltd. V. Union of India”also followed the Pradeep Kumar Biswas decision and ruled that the BCCI is not a state. The case was decided by a majority of 3 to 2. I subscribe to the dissenting arguments. In the dissenting opinion, using the public functionality test it was argued that BCCI is sole body which controls cricket in India and also the cricket team that is selected represents India and not the BCCI. BCCI also makes and implements the policies regarding to cricket and hence it also discharges a public function given the fact that cricket is a very popular sport in India. Also after the terror attacks in Mumbai in 2008 the Ministry of External Affairs put on hold all diplomatic interactions with Pakistan and this included cricket, BCCI could have turned a blind eye to this fact and gone ahead with the Indian Cricket Team’s tour to Pakistan but it didn’t do so and adhered to India’s Foreign Policy and this also I believe is a solid contention that it is State. If BCCI is not held to be state then it is becoming a very powerful organization with no accountability. I strongly believe BCCI is a state if the precedent for this case is taken to be Ajay Hasia and not Pradeep Kumar case which is essentially narrowing down the definition of state.
Personally I am in favour of a very broad definition of state because it is then that the true purpose of the fundamental rights is being fulfilled. I also support the fact that it is not required that the remedy is available only when state is the one violating fundamental rights. This should be extended to cases where the violator is a private individual as well. During the group discussion the idea of having only a functional test for an organization to be called state was propagated. But I think it is a very narrow definition of state and it gives a lot of leeway to private corporations to just prove that the work being done by them is not a public function and thus escape from being accountable. The Zee Telefilms case is a perfect example how it is using the narrow definition of state to its advantage despite clearly being a state under the guidelines laid down in the Ajay Hasia case. BCCI is a very powerful organization and the adage that power corrupts and absolute power corrupts absolutely is true in this case, Hence accountability factor should be there. Fundamental Rights are not there just for decorative purposes. Having a very broad definition of state has given rise to concerns that the judiciary will be overburdened with cases because people at the slightest instance would claim that their fundamental rights have been violated. This is true to a certain extent that there is a risk of fundamental rights being trivialised. However if given a choice between a narrow definition of state which is restricting the usage of fundamental rights and a broad definition which is leading to the over burdening of the judiciary I would certainly go with the latter as that problem can be solved by increasing the number of judges but in a democracy like India it is absolutely important that big private corporations be brought under some kind of accountability so that they do not get away scot free. The globalization and neo liberalization has made the protection of individual’s rights and freedoms a difficult task. The solution is a very simple one, the private actors must be subject to constitutional limits by expanding the definition of state under article 12.
Edited by Amoolya Khurana
 AIR 1967 SC 1857
 AIR 1954 Mad 67
 (1975)1 SCC 421
 (1981) 1SCC 722,737
 (2002) 5 SCC 111
 (2005)4 SCC 649