Why the Definition of "State" Decides Everything
Chapter Twenty-Six
Syllabus topic 2, "State: Need for widening the definition in the wake of Liberalisation". MU has set this topic in nine of the eleven printed papers, more often than any other in this paper.
Pages 122 to 125 of 304
In one line
A fundamental right in Part III is a right against the State, so if you get article 12 wrong the right is unenforceable against the body that actually holds the power over you.
In the wording a student can write in an exam: article 12 provides that in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India, 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 is inclusive and not exhaustive, and it operates only for the purposes of Part III, with article 36 applying the same definition to Part IV. Its importance is that most of the rights in Part III are guaranteed against the State alone, so whether a body falls within article 12 decides whether those rights bind it and whether a petition under article 32 lies against it. The expression that has generated all the litigation is "other authorities".
What turns on the answer
Three consequences follow from a body being "State", and they should be stated at the start of any answer because they explain why the question is fought so hard.
The fundamental rights bind it. It cannot discriminate contrary to article 14, cannot deny equality of opportunity in employment under article 16, cannot restrict speech beyond article 19(2), and cannot deprive a person of life or personal liberty except by a procedure that satisfies article 21.
Article 32 lies against it. A person aggrieved may go directly to the Supreme Court, and article 32 is itself a fundamental right.
Article 13 applies to what it makes. Its rules, regulations and bye-laws are "law" for the purposes of article 13(2) and are void to the extent they take away or abridge a fundamental right.
If the body is not "State", none of that follows. The person is left with the ordinary law: a contract, a suit, a statutory remedy, or a writ under article 226 if the public function route is open, which is the subject of [Private Bodies and Public Functions].
Reading the article
Four features of the drafting matter.
"Unless the context otherwise requires". The definition is not absolute. A particular article of Part III may require a narrower or wider reading, which is how the Court has been able to hold that the judiciary is "State" for some purposes and not for others.
"Includes". The definition is inclusive, not exhaustive. Whatever else the word "State" naturally covers is not cut down by the list, and the list itself is a floor rather than a ceiling. This is the textual foundation for every widening the courts have done.
Why the Definition of "State" Decides Everything
Four categories are named. The Government and Parliament of India; the Government and the Legislature of each State; all local authorities; and all other authorities. The first two are the executive and legislature of both levels; the third is a defined class; the fourth is the open one.
Two territorial formulas. "Within the territory of India" or "under the control of the Government of India". The second reaches bodies outside India that the Government of India controls, so a body operating abroad under Indian government control is not outside Part III merely because of where it is.
Article 36 carries the same definition into Part IV, so a body that is "State" for the fundamental rights is also "State" for the directive principles.
Why the question keeps changing
The definition has not been amended since 1950. What has changed is the State.
In 1950 the State was the government and its departments. Public functions were performed by ministries, and the list in article 12 caught almost everything that mattered.
From the 1950s to the 1980s the State expanded through corporations. Functions were hived off into statutory bodies, government companies and registered societies, each a separate legal person, none of them a "Government" or a "Legislature". The question became whether those bodies were caught, and the courts said yes, because otherwise the State could escape Part III by choosing a corporate form. That is the widening described in [The Instrumentality Test].
From the 1990s the movement reversed. The State began to withdraw: disinvestment, privatisation, contracting out, public private partnership, and regulation in place of ownership. Now the question is whether the fundamental rights follow the function out of government hands, and if not, what protects the citizen who deals with the private body that replaced the department. That is MU's own topic label, and it is [Liberalisation, Privatisation and the Case for Widening Article 12].
The single sentence that captures the whole topic is this: article 12 asks who holds public power, and the answer to that question has changed twice since 1950 while the words have not changed at all.
The first widening
Facts. Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857, (1967) 3 SCR 377, decided 3 April 1967. Government employees were placed at the disposal of the State Electricity Board, a body constituted under the Electricity (Supply) Act 1948. When the first respondent was refused consideration for promotion while others identically placed were promoted, he moved the High Court under articles 226 and 227 alleging breach of articles 14 and 16. The Board answered that it was not "State" under article 12, so no direction could issue to it.
Why the Definition of "State" Decides Everything
Held. By the majority, the Board is an "other authority" and therefore "State". The expression is wide enough to include every authority created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. It does not matter that some of those powers are for commercial activity, because under articles 19(1)(g) and 298 the State itself may carry on trade. And the principle of ejusdem generis must not be applied to "other authorities", because the bodies named before it, the executive governments, the legislatures and local authorities, share no distinct genus running through them.
Why it matters. It is the case that opened the field. Before it, the argument that "other authorities" must be read as limited to bodies of the same kind as those named would have confined article 12 to organs of government proper. The rejection of ejusdem generis is what made everything that follows possible.
The shape of the rest of the topic
The chapters that follow work through the categories in order:
- The three named categories, in [The Named Authorities].
- The early struggle over "other authorities", in ["Other Authorities": The Early Cases].
- The tests that emerged, in [The Instrumentality Test].
- The narrowing, in [The Retreat, and What Survived It].
- Two special problems: [Is the Judiciary "State"?] and [Private Bodies and Public Functions].
- MU's own question, in [Liberalisation, Privatisation and the Case for Widening Article 12].
- And the companion article, in [Article 13: Laws Inconsistent with Fundamental Rights].
A worked example
A student writes in an examination: "The petitioner's fundamental rights under article 14 were violated by the private company, so she may move the Supreme Court under article 32." Identify what has gone wrong and set out the correct chain of reasoning.
The error. Article 14 binds the State. Article 32 lies against the State. A private company is not the State unless it satisfies article 12, and the answer assumes what has to be proved.
The correct chain, in order.
One. Is the body "State" within article 12? It is not the Government or a legislature, and it is not a local authority, so the question is whether it is an "other authority".
Two. Apply the test. Is the body, on the cumulative facts, financially, functionally and administratively dominated by or under the control of the Government, that control being particular to it and pervasive rather than merely regulatory?
Three. If yes: articles 14 and 21 bind it, article 32 lies, and its rules are "law" for article 13(2).
Four. If no: article 32 does not lie. Ask instead whether the body discharges a public function or owes a public duty, in which case article 226 is available in the High Court, being wider in reaching "any person or authority" and extending "for any other purpose".
Why the Definition of "State" Decides Everything
Five. If neither: the remedy is the ordinary law, a suit or a statutory remedy.
The point to hold on to. Article 12 is not a definition to be recited. It is the gate, and everything in Part III is on the other side of it.
Quick revision
- Article 12 defines "State" for Part III and, through article 36, for Part IV.
- It matters because the rights bind only the State, article 32 lies only against the State, and article 13 tests only what the State makes.
- "Includes" makes the definition inclusive, and "unless the context otherwise requires" makes it flexible. Both are the textual basis of judicial widening.
- Four categories: the Union executive and legislature, the State executive and legislature, local authorities, and other authorities. Two territorial formulas: within India, or under the control of the Government of India.
- Rajasthan State Electricity Board: "other authorities" covers every statutory authority with governmental or quasi-governmental powers, commercial activity does not matter, and ejusdem generis does not apply.
- The words have not changed since 1950; what the State is has changed twice.
Test yourself
1. State three consequences that follow from a body being "State" within article 12.
2. What is the significance of the words "includes" and "unless the context otherwise requires"?
3. Give the two territorial formulas in article 12 and explain what the second adds.
4. Why has the article 12 question changed twice since 1950, when the words have not changed at all?
5. What did Rajasthan State Electricity Board decide about ejusdem generis, and why was that decision the foundation of everything that followed?
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.