06 Jun The Juridical Contours of Article 12: Ontological Asymmetry and the Multi-Tiered Matrix of ‘The State’
The conceptual architecture of Part III of the Constitution of India is anchored upon an absolute prerequisite: the determination of the juristic entities against whom Fundamental Rights can be structurally enforced. While these liberties are framed as a protective shield for the individual, they operate primarily as a constitutional check on the arbitrary exercise of sovereign power.
This functional paradigm is anchored in Article 12, which provides a contextual definition of “The State.”
However, rather than establishing a static, definitive classification, the textual syntax of Article 12 sets up an open-ended interpretive framework. This structural fluidity has generated decades of complex judicial interpretation as the Supreme Court of India has struggled to adapt classical definitions of sovereign power to the rise of modern, public-private corporate structures.
1. The Textual Taxonomy: Inclusions and Interpretive Boundaries
The linguistic composition of Article 12 relies on an inclusive definition, establishing a multi-tiered structural taxonomy. The text states:
“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.”
To analyze this definition, constitutional jurisprudence divides the text into four distinct structural tiers:
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The Executive and Legislative Organs of the Union: The political executive and the bicameral legislature at the federal center.
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The Executive and Legislative Organs of the Provinces: The gubernatorial executive and state assemblies.
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Local Authorities: Institutional bodies exercising decentralized statutory powers, such as Municipal Corporations, Improvement Trusts, and District Boards.
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Other Authorities: The ultimate interpretive battleground, left textually undefined by the framers.
2. The Doctrinal Evolution of ‘Other Authorities’
Because the phrase “Other Authorities” lacks precise textual boundaries, the judiciary has had to repeatedly rethink its interpretive approach. The evolution of this clause highlights a deeper constitutional tension: balancing the literal meaning of legal text against the practical realities of governance.
A. The Phase of Restrictive Textualism: Ejusdem Generis
In the initial post-republican era, the judiciary adopted a narrow, literal approach. In University of Madras v. Santa Bai (1954), the Madras High Court applied the canon of construction known as Ejusdem Generis (of the same kind or nature).
The court reasoned that because the preceding clauses (Union and State governments, local bodies) all possessed distinct sovereign or governmental attributes, the phrase “Other Authorities” could only encompass entities exercising strictly sovereign functions. Consequently, universities, commercial boards, and non-political statutory corporations were excluded from the obligations of Part III.
B. The Structural Realist Shift: Rajasthan Electricity Board
The limitations of this narrow view became clear as the state expanded its role into commercial and industrial sectors. The Supreme Court rejected the ejusdem generis rule in the landmark case Rajasthan SEB v. Mohan Lal (1967).
The Court established a new structural test: an entity qualifies as an “authority” under Article 12 if it is created by a statute and invested with power to command obedience or execute functions that impact the public. The possession of commercial or non-sovereign characteristics no longer immunizes a body from constitutional scrutiny.
3. The Modern Paradigm: The Instrumentality Doctrine
As the state increasingly began using government-owned corporations, registered societies, and private entities to perform traditional public functions, a purely statutory creation test proved insufficient. The state could easily bypass Part III obligations simply by establishing a joint-stock company under the Companies Act instead of passing a dedicated statute.
To close this loop, the Supreme Court developed the “Instrumentality or Agency” Doctrine through a series of key rulings, culminating in Ramana Dayaram Shetty v. International Airport Authority of India (1979) and finalized in Ajay Hasia v. Khalid Mujib (1981).
The Six-Pronged Functional Test
In Ajay Hasia, the Court laid down a multi-pronged test to determine whether an entity is structurally an “instrumentality or agency” of the state, regardless of its legal form:
| Structural/Functional Criteria | Constitutional Implication |
| Entire Share Capital Owned by State | Indicates complete financial control and ownership. |
| Deep and Pervasive State Control | Shows that management and operations are dominated by public actors. |
| Monopoly Status Conferred by State | Reflects state protection or a public utility function. |
| Functions of Public Importance | The duties closely resemble traditional governmental activity. |
| Departmental Transfer | A government department was directly converted into the entity. |
| Financial Assistance Presence | The body is structurally dependent on state funding to survive. |
The Structural Rule: This framework shifts the legal focus from an entity’s formal structural origin to its actual functional reality. If a body functions as an arm of the government, it is bound by the discipline of Fundamental Rights.
4. The Unresolved Blind Spot: Is the Judiciary ‘The State’?
Perhaps the most significant structural debate surrounding Article 12 involves a notable omission: the text does not explicitly mention the Judiciary.
This omission creates a fundamental systemic question: Can a court violate Fundamental Rights while performing its functions?
The Supreme Court addressed this issue in Naresh Shridhar Mirajkar v. State of Maharashtra (1967). A 9-judge bench drew a distinction between the two primary functions of a court:
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Administrative Actions: When a court acts in an administrative capacity—such as hiring staff, issuing operational rules, or managing public tenders—it acts as an arm of the state and is bound by Article 12.
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Judicial Actions: When a court acts in its core adjudicating capacity—such as hearing cases, evaluating evidence, and issuing orders or decrees—it cannot be characterized as the state under Article 12.
The Court noted that a judicial order, even if mistaken, cannot be said to violate fundamental rights in a manner that allows a citizen to file a writ petition under Article 32 against the court itself. The proper remedy is the appellate process, not an Article 32 challenge.
This distinction was reaffirmed in Rupa Ashok Hurra v. Ashok Hurra (2002), where the Court confirmed that a curative petition could review a final judgment to prevent a miscarriage of justice, but maintained that the core judicial function remains distinct from the definition of “The State.”
Conclusion: A Dynamic Jurisprudential Shield
The ongoing evolution of Article 12 demonstrates that its textual flexibility is a key design feature, rather than a defect. Had the framers provided a rigid, closed-form definition of the state, the constitutional protection of Fundamental Rights would have weakened as public services were increasingly outsourced or corporatized.
By employing an flexible interpretation, the judiciary has successfully expanded the reach of Article 12. This ensures that as the methods of exercising public power evolve, the protections for individual liberty remain effective.
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- The Architectural Fractures of Part III: Textual Antinomy and Judicial Correction in the Indian Constitution - June 6, 2026
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