Article 12 and Definition of State

Article 12 defines the “state” which includes:

  • Government and Parliament of India
  • Government and the Legislature of each of the States
  • All local or other authorities within the territory of India or under the control of the Government of India.

The words “other authorities” and “under the control” are ambiguous and led to numerous litigations in the Supreme Court. Thus, this article has been subject to judicial interpretation from time to time. Various Supreme Court judgments have established that:

  • Definition of state is inclusive and may include other bodies than executive, legislature of union and states which have been enumerated explicitly in the article 12.
  • Any such authority which has power to make any law, pass any order, make an regulation, bye-laws etc. come under definition of state. Thus Panchayats, municipalities, district boards and other statutory, constitutional bodies come within the definition of state.
  • Statutory and non-statutory bodies that get financial resources from government , have deep pervasive control of government and with functional characters as such as ICAR, CSIR, ONGC, IDBI, Electricity Boards, NAFED, Delhi Transport corporation etc. come under the definition of state.
  • Statutory and Non-statutory bodies which are not substantially generally financed by the government don’t come under definition of state. Examples are autonomous bodies, Cooperatives, NCERT etc.
  • Judiciary is NOT state. Many opine that the judiciary should be included in the definition of the state.
Rationale behind Fundamental Rights against state

The conflict between individuals and state is as old as our history. The individuals need personal liberty and state has the power to decide those liberties. Thus, if the state has absolute power to cut down those liberties of an individual, it would be tyranny. Thus, the individuals need constitutional protection against the state. The rights which are given to the citizens by way of fundamental rights are a guarantee against state action as distinguished from violation by the ordinary law of land. Thus, Fundamental rights are against the state for the protection of individual.

Fundamental Rights against state and individuals

Fundamental rights are binding upon not only the State and agencies of State but also upon individuals/organizations. For example, if untouchability or any sort of discrimination is practiced by any individual then that individual indulging in such practices is punishable under the law of the land. Article 12 gives the definition of State as including not only the executive and legislative organs of the Union and the States but also local bodies and other authorities. Even the act of any individual may become an act of the State if it is enforced or aided by any of the authorities mentioned above. Certain Fundamental Rights are also available against private individuals like Article 15(2) [equality with regard to access to and use of places of public resort], Article 17 [prohibition of traffic in human beings], Article 18(3)-(4) [prohibition of acceptance of foreign title], Article 23 [prohibition of traffic in human beings] and Article 24 [prohibition of employment of children in hazardous employment].

Self-executory rights

All fundamental rights are justifiable and enforceable under court. There are certain rights in Indian constitution which don’t need any legislation to make them enforceable. For example there is no need to enact a separate legislation to  make the Right to Equality enforceable. These are called self executory. At the same time, there are certain rights which are imperfect in just being inscribed to the constitution and need further legislation to make them enforceable. Such rights are Art. 17 (untouchables) Article 21A (right to free & compulsory education); Article 23 (traffic in human beings; and Article 24 (child labour).

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