This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3^rd year law student.

INTRODUCTION

There are some basic rights and freedom, which are not for the compromisation. The state must protect to those rights and freedom. The result of this observation is that firstly,  Magna carta, Secondly, Bill of rights and lastly, the fundamental rights are consolidated. In 1928, Motilal Nehru observed that we should provide the fundamental rights in such a manner that fundamental rights should not withdraw or violate in any circumstances. Fundamental rights which are provided to the citizens and as well as to the non-citizens(with some exceptions), are a type of guarantee that state shall not act against these fundamental rights. Fundamental rights are positive and negative declaration on the part of the state. Fundamental rights prohibits the state from acting against the interest of individual. For example – Article 15 prohibits the state to discriminate the people on ground of religion, race, caste, sex or place of birth & article 21A impose the duty on the state to provide the free and compulsory education to all children of the age of 6-14 years. If state do act which infringe the fundamental rights of citizens, the aggrieve party can sue to the state.

WHAT IS STATE ?

Fundamental rights are provided under part III from article 12-35 of the Indian constitution. The fundamental rights are enforceable only against the state. The term ‘State’ is defined under article 12 of the constitution. The definition of State under article 12 of the constitution is applicable only on the part III & IV, not for the rest part of the constitution. According to article 12, following authorities are only the state : – 

1. Government and parliament of India i.e. the union legislature and the union executive. Union legislature includes president, lok sabha and rajya sabha & the union executive includes president, vice president and the council of ministers with the prime minister.
2. Government and legislature of each state i.e. State legislature and state executive. The state legislature includes governor, state legislative assembly and state legislative council & the state executive includes governor and the council of ministers with the chief minister.
3. Local authorities :- Local authorities as defined in section 3(31) of the General clauses Act,1897 refers to the authorities like municipalities, district board, panchayat, improvement trust and mining settlement board. The local self governing bodies are  local authorities and these are the state. The court held that the municipal board will be covered under article 12, in the category of local authorities, in case Rashid Ahmed v. Municipal Board 1950.
4. Other authorities :- The concept of “other authorities” is not discussed anywhere in our constitution or in other any statue. It may be understood by the following case laws : 

• University of Madras vs. Shantha Bai : A University of Madras was created under Madras University Act. So, there was a question in this case that whether a university is state or not? The court held that the term ‘other authorities’ used in article 12 should be ejusdem generis i.e. of the same kind, with government or legislature. So, it could only mean authorities exercising governmental or sovereign functions. Other authority should derive it’s  colour from the preceding 3 authorities under article 12. 
• Ujjambai vs. State of U.P. : The approach of ejusdem generis was rejected by the court in this case. The court held that the approach of ejusdem generis is very restrictive and there is no common genus running through proceeding 3 authorities under article 12.
• Rajasthan electricity board vs. Mohan lal : In this the supreme court thought to formulate a new criteria to describe the other authority as state under article 12. The court said that if any body is created by any law or constitution on whom powers are conferred by law, then it is wide enough to effect the fundamental rights or to include in the “other authority”. It is not necessary to perform the governmental or sovereign functions, by such body which is created by any statue or constitution. According to this interpretation Rajasthan electricity board, all universities are state under “Other authority”. 
• Sukhdev vs. Bhagatram : In this case a question arise that, A body which is created under any statute but to fulfill the purpose of commercial nature, whether that body is state or not? The supreme court said that the statutory body such as ONGC, LIC, IFC which were set up under special statute are state under “Other authority”. 
• Sabhajit Tewary vs. Union of India : This case was decided by same constitutional bench as in Sukhdev case. The CSIR was created by the government of India to promote industrial research in India, with a majority of it’s  members being nominated by the central government and most of it’s  financial requirements supplied by the government but the society does not have a statutory character like the ONGC, LIC & IFC.
• R.D. Shetty vs. international airport authority : In this case the international airport authority invited many tenders. R.D. Shetty applied for the tender but because of some discrimination, his tender does not accept. R.D. Shetty file a case for the infringement of fundamental rights. So, a question arose that, whether the airport authority is state or not? Because, if airport authority is not state, there is no infringement of fundamental rights. The court observed that international airport authority is formulated under airport authority Act, 1971, which a parliamentary Act. They observed that central government has many powers which are exercising on international airport authority. The central government was empowered to appoint chairman and other members. The entire capital amount that was required to establish international airport authority was invested by the central government. The central government also empowered to transfer the management of various airport. Finally, the airport authority is state under “Other authority” provided in article 12 of the constitution. Further, the court said that any body which is private or not, doesn’t matter, but there is Governmental usual degree of control in the management & extraordinary financial assistance for such body, then that body will be considered as instrument or agent of the government and will fall in the “Other authority”. 
• Som Prakash vs. Union of India : The supreme court held that the Bharat petroleum which was incorporated under the Companies Act, is also instrumentality of state. Therefore, Bharat petroleum is state under “Other authority”. In this case the court provide 5 criteria to determine whether any authority or body is state or not. These are following 5 criteria : 

1.  resources of the state being the chief funding sources
2. Functional character being governmental in essence
3. Plenary (Absolute) control residing in government
4. Prior history of the same activity being carried out by the government and made over to the new body
5. Some element of authority or command

• Ajay Hasia vs. Khalid Mujib : The court held that a society registered under the societies registration Act, 1898, is an agency or “Instrumentality of the state”. The court also said the determining test is not that whether a body was formulated by or under any statute or not but determining test is that whether a body is acting as a instrumentality or the agency of a state. 

This case provide a determining test. It provide 6 criteria to determine whether a body is an agency or instrumentality of the state are as follow:

1. Entire share capital is held by the government
2. Financial assistance
3. Monopoly status
4. Deep and pervasive state control
5. Function of the co-orportation 
6. A department of the government is transferred to co-orportation 

• Chandra Mohan Khanna vs. NCERT : In this case NCERT was not held to be state because NCERT was largely an autonomous body and the activities of NCERT were not wholly related to the governmental functions. 
• Zee telefilms Ltd. Vs. Union of India : The question was involved that whether the board of cricket for central in India was state within the meaning of article 12 or not. The court held that BCCI is not the state under article 12 because the board was not financially, functionally or administratively dominated by or under the control of the government.

WHETHER THE JUDICIARY IS STATE OR NOT?

Although there is no specific mention of judiciary in Article 12 but the supreme court can make rules (to regulate practice & procedure of courts), appoint its staff and decide its service conditions (as mentioned in Article 147 and 146 of the Indian Constitution). The question whether the judiciary was included within the definition of the ‘State’ in Article 12 arose for consideration of the Supreme Court in Naresh v. State of Maharashtra. It was held that even if a Court is the State a writ under Article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. In one of its latest observations, the apex court has held that judiciary can be considered as a ‘State’ as far as its rule-making power is concerned, but it would not be considered so when it exercises its judicial powers. 

CONCLUSION

The need to determine what falls within the meaning of state is, to assign the party on whom the duty to implement such right is placed upon. Not only that, the definition of state under Article 12 has several words which may not have definite meanings, words such as local authorities, control of government, other authorities, etc. and as seen in the above discussion, the courts have, through the course of their judgements,  described the extent of the article by laying down a test and discussing the meaning of the terms

REFERENCE

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