Article 12

1. Constitutional text, scope and purpose

Article 12 opens Part III, which contains Fundamental Rights. It states that, unless the context otherwise requires, “the State” includes the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. The wording is deliberately inclusive. It prevents constitutional obligations from being confined to the executive departments that are commonly understood as government.

The provision performs a gateway function: before alleging that an institution has violated a right enforceable against the State, a claimant may need to establish that the institution falls within Article 12. It does not itself confer a separate substantive Fundamental Right. Instead, it identifies the constitutional duty-bearers for provisions such as Articles 14 and 16. Article 13 complements this framework by invalidating laws inconsistent with Fundamental Rights to the extent of the inconsistency.

The territorial language should be read carefully. Article 12 covers local or other authorities within India and also authorities under the control of the Government of India; the second limb is not confined by the same territorial qualification. Article 36 carries this definition into Part IV unless the context otherwise requires. Nevertheless, Part III rights and Part IV principles retain different enforceability: Article 37 makes Directive Principles non-justiciable.

• Article 12 defines the State; Article 13 addresses unconstitutional laws.
• The expression “unless the context otherwise requires” makes the definition context-sensitive.
• Article 12 remains in its original constitutional form; its practical reach has principally developed through judicial interpretation.

2. Express categories and the meaning of other authorities

The Union executive, Parliament, State executives and State legislatures are expressly covered. Their legislative and administrative actions must comply with applicable Fundamental Rights. Local authorities ordinarily include municipal corporations, municipalities and panchayats. Section 3(31) of the General Clauses Act, 1897 provides a useful statutory reference, covering specified local bodies and other authorities legally entitled to, or entrusted by government with, control or management of a municipal or local fund.

“Other authorities” is the principal source of interpretive debate. It is not restricted to bodies resembling legislatures or municipal institutions. In Rajasthan State Electricity Board v. Mohan Lal, 1967, the Supreme Court adopted a broad interpretation and held the Electricity Board to be an authority within Article 12. A body does not escape constitutional scrutiny merely because it undertakes commercial activities rather than conventional sovereign functions.

In Sukhdev Singh v. Bhagatram, 1975, the Court held that ONGC, LIC and the Industrial Finance Corporation were State. Subsequent decisions moved beyond the narrow question of whether an institution had been created by legislation. A company registered under company law or a society registered under societies legislation can also qualify when its relationship with government makes it an instrumentality or agency of the State. Conversely, registration under a general statute does not itself establish State status.

• Statutory corporations and government companies must be distinguished by their legal form, but either may fall within Article 12.
• Public importance of an activity is relevant, but it does not automatically convert every service provider into State.

3. Instrumentality or agency: the judicial tests

R.D. Shetty v. International Airport Authority of India, 1979, and Ajay Hasia v. Khalid Mujib Sehravardi, 1981, developed the instrumentality-or-agency approach. In Ajay Hasia, the Court examined a society running a regional engineering college and stressed that the institution's legal form was not decisive. Otherwise, government could avoid Fundamental Rights simply by transferring activities to separately incorporated organisations.

The recognised indicators include government ownership of the entire share capital, financial assistance meeting almost the whole expenditure, a State-conferred or State-protected monopoly, deep and pervasive governmental control, functions of public importance closely related to governmental functions, and transfer of a government department to the institution. These are indicators for an overall assessment, not six compulsory requirements. No mechanical numerical score or single universal test resolves every case.

The seven-judge decision in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002, clarified the controlling approach. The cumulative facts must show that the body is financially, functionally and administratively dominated by, or under the control of, government. Such control must be particular to the body and pervasive; merely regulatory control is insufficient. The Court held the Council of Scientific and Industrial Research to be State and overruled the contrary conclusion in Sabhajit Tewary v. Union of India, 1975.

• Ask about actual governmental domination, not merely the institution's name or registration.
• Distinguish control over an organisation from general regulation of an entire sector.
• Neither public funding nor a public function should be treated as an automatic, standalone answer.

4. Borderline bodies, courts and private actors

In Zee Telefilms Ltd. v. Union of India, 2005, a Constitution Bench held by majority that the Board of Control for Cricket in India was not State under Article 12 on the facts examined. Its prominence in Indian cricket and performance of important functions did not establish the governmental domination required by the constitutional test. The decision illustrates why a practical monopoly or public visibility cannot replace analysis of governmental control.

An equally important distinction concerns the judiciary. Courts' administrative actions, such as recruitment and service administration, are subject to applicable Fundamental Rights. Judicial orders occupy a different constitutional position: they are ordinarily challenged through appeals, review and other established judicial remedies, not by treating every allegedly erroneous judgment as State action open to a fresh Article 32 petition. Naresh Shridhar Mirajkar v. State of Maharashtra, 1966, and Rupa Ashok Hurra v. Ashok Hurra, 2002, are relevant authorities.

It is also incorrect to say that Fundamental Rights never operate against private persons. Articles 15(2), 17, 23 and 24 contain important protections applicable beyond ordinary State action. For example, Article 23 prohibits trafficking and forced labour by private actors as well as public authorities. Therefore, failure to establish Article 12 status does not necessarily eliminate every constitutional or statutory remedy.

• Avoid an unqualified assertion that the judiciary is either always included or always excluded.
• Identify the particular right and the nature of the challenged action before deciding whether Article 12 status is essential.

5. Enforcement and examination application

Article 32 empowers the Supreme Court to enforce Fundamental Rights. Article 226 empowers High Courts to issue writs for Fundamental Rights and “for any other purpose”, including enforcement of other legal rights. Its reach is wider in this respect, although territorial jurisdiction and other legal limitations still apply.

In Andi Mukta Sadguru v. V.R. Rudani, 1989, the Supreme Court explained that mandamus under Article 226 can reach a body performing a public duty even when it is not a statutory authority. This does not make every private dispute a writ matter: the duty and the challenged action must have the necessary public-law character. A purely private contractual dispute is not ordinarily transformed into one merely because the institution serves the public.

For Prelims, separate three questions: whether the body is State under Article 12, whether the relevant right applies to the conduct, and whether the chosen remedy is available. State status can bring recruitment, contractual allocation and administrative decisions within Article 14 scrutiny, but it does not automatically turn the institution's employees into civil servants or give them Article 311 protection.

• Article 12 status and Article 226 amenability are related but distinct questions.
• Governmental regulation, public funding and public functions require contextual evaluation.
• An institution's constitutional classification does not settle every issue concerning its employees or contracts.

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