MEANING OF STATE UNDER ARTICLE 12
MEANING OF ‘STATE’ UNDER ARTICLE 12
Article 12 of Indian constitution defines state in context of part three of the constitution as government and parliament of India, government and state legislatures, all local authorities and other authorities within the territory of India or under governmental control. . Additionally this article also analyses various tests laid down by the judiciary for determining the scope of article 12. This article answers the question of what is meant by ‘state’ under article 12. This article also answers the question of whether the National Council of Educational Research and Training (NCERT) held within the scope of ‘other authorities’ under article 12. It additionally also discusses the rule applied in determining the scope of the phrase used in the article. It discusses various tests propounded by courts to ascertain which institution is the agency of state or instrumentality of state.
In Ramana Dayaram Shetty v Union Of India, courts for the first time court laid down definite indicators for determination of an agency or instrumentality of state .The question before the court was whether a statutory body International Airport Authority is considered to be state under article 12? Justice Bhagwati laid down 5-point test for determination of a body whether it is an agency or state’s instrumentality-
· Extent of financial assistance given by the state, the whole share capital is in the hand of the government
· State’s control over the entity is deep and pervasive
· Functions performed by the entity are of public importance or of governmental character
· Control of management and policies of corporation by the state
· That entity has ‘monopoly status’ which the state has conferred or is protected by the state.
In this case International Airport Authority received financial assistance, all its important directions came from authority pertaining to its operation. It was the only authority who managed airports hence enjoyed state protected monopoly status. It was a statutory body , hence it satisfied all the tests mentioned above and was said to be a state. It was still not a cut and dried formula to decide which instrumentality or agency of government.
In Ajay Hasia v Khalid Mujib , the question was whether a registered society was authorized under article 12? The court in this case held that the origin of a juristic person is immaterial, whether it is statutory body or a company or society is immaterial for determining whether that entity is state. But what it is required to do, its reason for its creation is important. It laid down five prong test-
1. Instrumentality test
The entire share capital is in the hands of the government. Financial assistance given by the government is so large as to meet the entire expenditure of the body, it may indicate that the entity is impregnated with governmental character.
2. Control Test
Existence of deep and pervasive serves a powerful indicator that the entity is instrumentality of state. For instance, prior approval of the government necessary to make rules, all directions are issued by the governmental authority.
3. Monopoly status
Another factor is whether the entity enjoys monopoly status which is conferred and protected by the state.
4. Voice and Hands test-
Pertains with the question who is doing what, the powers of appointment and termination of employees lies within the government.
5. Functional test
Functions performed by the body is of public importance or closely related to governmental functions
In this case the court held that registered society satisfied all of these tests hence was regarded as state for the purpose of article 12.
Pradeep Kumar Biswas v Indian Institute of chemical biology it overturned the Sabhajit Tewary case and held that CSIR to be authority under state. The court observed that the tests laid down in Ajay Hasia are only indicative and are not rigid set of rules, totality of the circumstances have to be seen This case further dilutes the requirement that the body should be functionally, financially and administratively dominated by or controlled by the state. Control should not be mere regulatory but deep and pervasive. The court observed that it is important to consider the origin of authority, extent of government control and administrative actions. Similarly in Tekraj Vasandi v. Union Of India the court observed that institute of parliamentary studies is not a state under article 12 as it was a voluntary organisation, it didn’t perform functions of public importance or governmental functions and there was no deep and pervasive control of state over the institute.
In Chander Mohan Khanna v. National Council of Educational Research and Training , the court held that the national council for education, research and training was outside the scope of article 12. It was an only autonomous body, its activities not related to governmental functions, only activity to assist and advise the Ministry of education and social welfare.
National Council of Educational Research and Training (NCERT) is an autonomous body only a registered society. Its functions involved assistance and rendering advice to the central and state government on policy matters. The functions performed by the entity are not related to governmental functions. Hence it is not functionally dominated by the government. The government control is limited to the extent of ensuring that its funds are being properly utilised. It is not administratively controlled by the government. Funding of this National Council of Educational Research and Training in its entirety does not come from government sources. It is neither financially under the control of the government.
Relying on Chander Mohan Khanna v. National Council of Educational Research and Training (NCERT)  and the test laid down in Pradeep Kumar Biswas v. Indian Institute of chemical biology, the NCERT is not functionally, financially or administratively under the control of the government. Hence National Council of Educational Research and Training (NCERT) lies outside the scope of article 12 of the constitution.
 Ajay Hasia v Khalid Mujib 1981 AIR 487, 1981 SCR (2) 79.  Pradeep kumar Biswas v Indian Institute of chemical biology (2002) 5 SCC 111
 Sabhajit Tewary v. Union of India, (1975) 1 SCC 485,
 Tekraj Vasandi v. Union Of India 1988 AIR 469
 Chander Mohan Khanna v. National Council of Educational Research and Training (1979) 3 SCC 489