State Action or Not: Explaining ‘State’ under Article 12 of the Constitution (Part 1)

By Pranika Goel

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Fundamental Rights, enshrined in Part III of the Indian Constitution, form the backbone of the basic rights of an individual. However, Article 13(2) limits their enforceability only against the state, as defined in Article 12. The article states that:

“In this Part, unless the context otherwise requires, “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.”

Given the import of Fundamental Rights on the lives of individuals, it is apposite to examine the scope and extent of ‘State’, since that determination would guide the assertion as to whether any violation of these rights would be actionable against a particular entity or not.

Before that, it is also relevant to understand the rationale behind providing the Fundamental Rights only against the state. While one generic response to this quandary is that fundamental rights are an offshoot of the natural rights of individuals - life, liberty and property. Since these rights existed before the institution of state came into being, the same have to be protected even against intrusion by the state, and provided the extreme powers of the state, it was necessary to give special protection to these rights against it. However, it is suggested that this idea of fundamental rights being enforceable only against the state originated in the Bourgeois’ desire to establish an economic system free of state intervention during the revolutions of 17^th and 18^th centuries, which led to the introduction of the Bill of Rights.[1]

Now, we shall examine each phrase used in the article separately so as to gain a more holistic understanding of the issue at hand. The definition begins with “unless the context otherwise requires”, which means that there might be specifications in certain articles, that require a different interpretation of state, apart from the mentioned definition. So, in Articles 15 (2), 17, 23, 25(2)(b), 28(3) and 29(2), the fundamental rights mentioned therein are actionable against private entities as well.

As is evident from the word “includes”, the definition is an inclusionary one and thus state has the following components:

 

The Government and Legislature

This includes the executive and legislature of the union and the states. Hence, any act of the central government and the state governments and any law passed by the Parliament and the state legislature will be subject to scrutiny under Part III of the Constitution.

It is to be noted that judiciary is not included within the ambit of ‘state’ under Article 12. In the case of Naresh Sridhar Mirajkar v. State of Maharashtra[2], it was held that judicial decisions can’t be challenged as violating fundamental rights of any individual. In this regard, a distinction is made between the judicial and administrative functions of the courts, the latter being included within the ambit of state, while the former excluded.

 

Local Authorities

The term has been defined in General Clauses Act 1897, which can be imported to interpret the Constitution as well, courtesy Article 367. Hence, local authorities include Municipalities, Panchayats, District Boards, etc. For qualifying as a local authority, a body must be:

1. Legally entitled to or entrusted by the Government with the control or management of a municipal or local fund.[3]
2. A separate legal existence as a corporate body
3. Its area of function must be defined
4. Elected wholly or partially, directly or indirectly, by the inhabitants of that area
5. Enjoying a certain degree of autonomy in taking policy decisions
6. Statutorily entrusted with a civic functions and duties
7. Have the power to raise funds by levying taxes, fees, rates or charges, in addition to the funds provided by the government and borrowing.[4]

 

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[1] Gautam Bhatia, What is the “State”: Article 12 and Constitutional Obligations, https://indconlawphil.wordpress.com/?s=article+12.

[2] (1966) 3 SCR 744.

[3] s. 3(31), General Clauses Act 1897.

[4] Union of India v. R.C. Jain, 1979 SCR (3) 1014.

Part 2 of this article deals with what ‘other authorities’ fall under the ambit of ‘state’ and finally discusses the last part of the article – “within the territory of India or under the control of the Government of India”.

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Pranika Goel is a 2^nd year Law student at National Law University, Delhi. Still exploring what her true calling is, she is interested in Constitutional Law, Criminal Law, Corporate Law and Cyber Law. She likes to read fiction, paint and cook to de-stress. A curious soul, she enjoys studying about other fields, particularly Positive Psychology and Mathematics.