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Article 12, State
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- Definition.— 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.
State and other authorities.— A constitutional or statutory authority would be within the meaning of the expression “other authorities” in Article 12, if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequence, or it has the sovereign power to make rules and regulations having the force of law. A corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by Government not only in its policy-making but also in carrying out the functions entrusted to it by the law establishing it or by the charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government, R.D. Shetty v. International Airport Authority, (1979) 3 SCC 489, 498, 507-511, 518. See Also Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156.
Functions/Duties of a public nature performed by a body not prohibited by law does not make the body “State” for the purposes of Article 12, Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.
It is difficult to provide an exhaustive definition of term “authorities” which would fall within ambit of Art. 12. Only an inclusive definition is possible expansion of judicial definition of the term “State”. It is not easy to determine which duties form part of private action and which form State action. Hence, question in each case, would be whether in light of the cumulative facts as established, the body concerned, is financially, functionally and administratively under the control of the Government. Such control must be particular to the body in question, and not general in nature. It must also be deep and pervasive. Control should not be merely regulatory, Balmer Lawrie & Co. Ltd. v. Partha Sarathi Sen Roy, (2013) 8 SCC 345 : (2013) 3 SCC (Civ) 804.
Under Article 12 the following are held to the State: Project and Equipment Corporation of India, (1984) 3 SCC 316; Hindustan Steel Ltd., 1984 Supp SCC 554; Indian Council of Agricultural Research, (1984) 2 SCC 141; State Financial Corporation, (1983) 3 SCC 379; Indian Statistical Institute even though a registered society, (1983) 4 SCC 582; Bharat Petroleum Corpn. Ltd. (BPCL), (1981) 1 SCC 449; Registered Societies run by State, (1981) 1 SCC 722; Coffee Board, (1980) 3 SCC 358; Steel Authority of India Ltd. (SAIL), (1985) 2 SCC 644; State Electricity Board, (1985) 3 SCC 38; Delhi Stock Exchange, (2005) 4 SCC 4; Mysore Paper Mills Ltd., (2002) 2 SCC 167; Central Inland Water Transport Corpn., (1986) 3 SCC 156; U.P. Rajya Karmachari Kalyan Nigam, (2005) 1 SCC 149; Council of Scientific and Indian Research (CSIR), (2002) 5 SCC 111; International Airport Authority of India (IAAI), (1979) 3 SCC 489; Children’s Aid Society, (1987) 3 SCC 50; Indian Oil Corporation, (1990) 3 SCC 752; Food Corporation of India, (1985) 2 SCC 136; United India Insurance Co. Ltd., (1996) 9 SCC 439.
State, does not include the Judiciary. However, in the exercise of non-judicial functions the court will fall within the definition of the State, State of Punjab v. Ajaib Singh, AIR 1953 SC 10.
“Under the control of Government of India” does not apply to quasi-judicial body, K.S. Ramamurthy Reddiar v. Chief Commr., Pondicherry, AIR 1963 SC 1464.
Government Control.— The test for whether the entity is financially, functionally & administratively under Government control is that the control must be pervasive and not merely regulatory, Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111. See also Zee Telefilms v. Union of India, (2005) 4 SCC 649.