INTRODUCTION

Everybody knows about the constitution of India has fundamental rights

from article 12 to 35 in the part III. The constituent Assembly emphasize
that the government i.e. center or state is bound to keep safe
fundamental rights. Virtually, constitution of India guarantees to protect
only fundamental rights, not the constitutional rights and other legal
rights under any other law. Fundamental rights are claimed mostly
against the ‘State’.
The term ‘State’ has occurred at many places in many rulings. The
following is an extract that explains the meaning of ‘State’ in so far as
the constitution of India in reference to article 12 is concerned.
The definition of the expression “The State” in Article 12 , is however,
for the purposes of parts III & IV of the constitution , whose contents
clearly show that the expression The State in Article 12 as also in Article
36 is not confined to its ordinary and constitutional sense as extended by
the inclusive portion of Article 12 but is used in the concept of the state
in relation to the fundamental rights guaranteed by part III of the
constitution and the Directive Principles of State Policy contained in part
IV of the constitution which principles are declared by article 37 to be
fundamental to the governance of the country and enjoins upon the state
to apply making law.
ARTICLE 12 OF THE CONSTITUTION-
“STATE”
The word “state” has different meanings depending upon the context in
which it is used. The expression “ the state” when used in part III &IV
of the constitution is not confined to only the federating states or the
union of India or even to both. By the express terms of article 12, the
expression “the State” includes:
i) The Government of India
ii) Parliament of India
iii) The Government of each of the states which constitute the union
of India
iv) The legislature of each of the states which constitute the union
of India
v) All local authorities within the territory of India
vi) All local authorities under the control of the Government of
India
vii) All other authorities within the territory of India
viii) All other authorities under the control of the government of
India
The term State thus includes executive as well as the legislative organs
of the union and states. It is therefore the action of any of the bodies
comprise within the term “State” as defined in Article 12 can be
challenged before the courts under 13(2) on the ground of violating
Fundamental Rights.
a) Authorities – according to webster’s dictionary: “Authority”
means a person or body exercising power to command. In the
context of Article 12, the word “Authority” means the power to
 make laws, regulations, by-laws, notification etc. which have the
force of law and power to enforce those laws.
b) Local Authorities- ‘Local Authorities’ as defined in section 3(31)
of the General clauses Act refers to authorities like Municipalities,
District Boards, Panchayats, Improvement trust and meaning
settlement Boards
The most significant expression used in Article 12 is “other
Authorities” this expression is not defined anywhere in the
constitution. It is, therefore, for the Supreme Court as the Apex court,
to define this term.

Other Authorities –
The interpretation of the term ‘other authority’ in Article 12 has
caused a good deal of difficulty, and judicial opinion has undergone
changes over time. Today’s government performs a large number of
functions because of the prevailing philosophy of a social welfare
state. The government acts through natural persons as well as
juridical persons. Some functions are discharged through the
traditional governmental departments and officials while some
functions are discharged through autonomous bodies existing outside
the departmental structure, such as, companies, corporations etc.
Bodies created by a statue, bodies that whose management has
government representative, bodies under the administrative control of
the government, bodies performing government-outsourced tasks, and
so on. Which of these fall within Article 12, and why?
The first time the court was called upon to seriously grapple with
these issues was in the case ofRajasthan electricity board v.
 MohanLal1. The case involved a promotion dispute between some
workmen and the Rajasthan electricity board. Article 14 and 16
claims were raised, and consequently, the preliminary question that
fell to be determined by the court was whether the Board came within
the purview of part III, by virtue of being “state” (other authority)
under Article 12.
The Rajasthan Electricity Board was a corporate body that had been
constituted under an Act (the Electricity Supply Act, 1948), for the
purposes of supplying electricity within the State of Rajasthan. The
Board argued that the phrase “other authority” must be read
“ejusdem generis”-that is , when a law refers to a number of specific
categories, and then ends with a general clause, that general clause
must be understood only to contain those things which are part of the
common genus to which the specific categories belong. To take a
banal example, “BJP, Congress, AAP,and other political parties” does
not include the American Democratic Party, because clearly, what is
being referred to is Indian political parties. According to the board,
the common class running through Article 12 was bodies exercising
governmental functions. The electricity Board, on the other hand, was
set up by a statue to carry out commercial activities. Thus- the Board
argued-it could not be brought within the ambit of Article 12. It cited
decisions from the High court of Madras to contend that Article 12
was limited to “a person or a group of persons who exercise the
legislative or executive functions of a state or through whom or
through the instrumentality of whom the state exercises its legislative
or executive power. In those cases, State Universities had been found
not to fall within the ambit of Article 12.

1
AIR 1967 SC 1857
 Rejecting this argument – and overturning the judgment of the high
courts- the Supreme Court held that the expression “other authorities”
id wide enough to include all authorities created by the constitution or
Statue on whom powers are conferred by law. It is not necessary that
the statutory authority should be engaged in performing governmental
or sovereign function. Thus the Board- having been established by
Statue- was found to come within the scope of Article 12.
In case of Sukhdev singh v.Bhagatram2 the question was whether the
Life Insurance Corporation(LIC), Oil Natural Gas
Commission(ONGC), and Industrial Financial Corporation(IFC)
should be treated as state under Article 12 or not ?
The Supreme Court, following the test laid down in Electricity Board
Rajasthan’s case by 4:1 majority held that LIC, ONGC and IFC, are
authorities within the meaning of Article 12 of the constitution and
therefore they are ‘State’. All three statutory corporations have power
to make regulations under the statue for regulating conditions of
service of their employees. The rules and regulations framed by the
above bodies have the force of law. The terms of contract with a
particular employer is prescribed by the statute itself. These
regulations are binding on these bodies. The employees of these
statutory bodies have a statutory status and they are entitled to
declaration of being in employment when their dismissal or removal
is in contravention of statutory provisions. The employees are entitled
to claim protection of Article 14 and 16 against the corporation.
Mathew, J., in a separate but concurring judgment, propounded a
broader test that if the functions of the Corporation are of public
importance and closely related to governmental functions it should be

2
AIR 1975 SC 1331.
 treated an agency or instrumentality of government and hence a
‘State’ within the ambit of Article 12 of the Constitution.
The question came before the Court again, in the 1979 case of R.D.
Shettyv.International Airport Aurhority3. The International Airport
Authority was a corporate body constituted under the International
Airport Authority Act of 1971. It invited tenders for running
restaurants and snack bars at the Bombay International Airport, and
ultimately accepted the highest bid. This decision was challenged , on
the ground that in awarding the contract, the Authority had failed to
abide by its own stipulations, and in treating similarly situated
persons differently, had violated Article 14. The question, therefore,
was whether the International Airport Authority was subject to
Article 14 obligations? Whether the International Airport Authority
was a state within the meaning of Article 12?
Bhagwati, J., preferred, and rightly, the broader test as suggested by
Mathew,J., in Sukhdev Singh’s case. In this case the court has held
that if a body as an agency or instrumentality of government it may
be an ‘authority’ within the meaning of Article 12 whether it is a
statutory corporation, a government company or even a registered
society. Accordingly, it was held that the International Airport
Authority which had been created by an Act of Parliament was the
“state” within the meaning of Article 12. Now the question was that
What is the test to determine whether a body is an agency or
instrumentality? The court laid down the following tests for
determining whether a body is an agency or instrumentality of the
government:-

3
AIR 1979 SC 1628.
 1) It is clear that if the entire share capital of the corporation is held
by the government it would go a long way towards indicating that
the corporation is an agency or instrumentality of government.
2) Where the financial assistance of the state is so much as to meet
almost (entire)expenditure of the corporation, it would afford of
some indication of the corporation being impregnated with
governmental character.
3) Existence of deep and pervasive state control may afford an
indication that the corporation is an agency or instrumentality
4) If the functions of corporation are of public importance and closely
related to governmental functions it would be relevant factor
classifying the corporation as an agency or instrumentality of
government.
5) It is also be a relevant factor- whether the corporation , enjoys
monopoly status which is state conferred or state protected.
6) Specifically if a department of government is transferred to a
corporation- it would be strong factor supportive of this interest of
the corporation being an agency or instrumentality of government.
However, the court said that these tests are not conclusive but illustrative
only and will have to be used with care and caution.
In U.P. Warehousing Corporation v. Vijai Narain4, the question that
came before the court was whether the U.P. Warehousing Corporation
fell within the meaning of State under Article 12.
It was held that U.P. Warehousing Corporation which was constituted
under a statue and owned and controlled by the government was an
agency or instrumentality of the government and therefore “the State”
within the meaning of Article 12. Its employees have a statutory status

4
(1980) 3 SCC 459.
and therefore in case of wrongful dismissal of an employee a writ could
be issued against such body.

Two years after the case of R.D. Shetty, in 1981, a constitution Bench
of the Court considered the question yet again in Ajay Hasia v.Khalid
Mujib5. In this case the question was whether the Regional Engineering
College of Srinagar was “state” within the meaning of Article 12?. The
college had been established, and its administration was carried on, by a
society that was registered under the J&K Societies Act. Consequently,
the first argument of the society was that it had not been set up by the
government under a statue, and so could not come within the meaning of
Article 12.
The court held that a society registered under the Societies Registration
Act, 1898, is an Agency or “instrumentality of the State” and hence a
‘state’ within the meaning of Article 12. Its composition is determined
by the representatives of the government. The expenses of the society
are entirely provided by the Central Government. The rules made by the
society require prior approval of the State and Central government. The
society is to comply with all direction of the government. It is
completely controlled by the government. The government has power to
appoint and remove the members of the society. Thus, the State and the
Central government has the full control of the working of the society. In
view of these elements the society is an instrumentality of the state or
the Central government and it is therefore an “authority” within the
meaning of Article 12. The test is not as to how the juristic person is
created but why it has been brought into existence.

5
AIR 1981 SC 487.
In B.S. Minhasv.Indian Statistical Institute6,the question raised
whether India Statistical society was a state within the meaning of
Article 12
Following Ajay Hasia v. Khalid Mujib it has been held that the Indian
Statistical Society, a society Registered under the societies Registration
Act, 1860 being under the complete control of the Government and
therefore, an “ authority” within the meaning of Article 12 of the
constitution. Accordingly, a writ-petition under Article 32 against the
Institute for violating of fundamental rights in maintainable.
In case of Central Inland Water Transport Corporation
v.BrojoNathGanguly7,the question came before the court was whether
the Central Inland Water Transport Corporation is a state or not within
the meaning of Article 12? … The court applied the Test of agency or
instrumentality and held that the Central Inland Water Transport
Corporation, a Government company which was wholly owned by the
Central Government and managed by Chairman and Board of directors,
appointed and removal by central government, was “the State” within
the meaning of Article 12 and therefore an instrumentality or agency of
the State. It is nothing but the government operating behind corporate
veil, carrying out a governmental activity and governmental functions of
the vital public importance through the instrumentality of a government
company. If there is an instrumentality or agency of a state which has
assumed the grab of a government company as defined in section 617 of
the Companies Act, it does not follow that it thereby ceases to be an
instrumentality or agency of the State.

6
(!983) 4 SCC 582
7
(1986) 3 SCC 156
In M.C Mehta v.Union of India8, the important question which was
raised before the court was whether Sri Ram Food Fertilizer a private
corporation fell within the ambit of Article 12. Although the question
whether a private corporation fell within the ambit of Article 12 was not
finally decided by the court because of insufficient time. But it stressed
the need to do so in future.
In Tekraj Vasandi v.Union of India9, it has been held that “ Institute of
Constitutional and Parliamentary Studies” , a society registered under
the societies Registration Act, 1860, is not a State within the meaning of
Article 12. The Institute of Constitutional and Parliamentary Studies is
neither an agency nor an instrumentality of the State. It is a voluntary
organization. The object of the society is not related to government
business. In the functioning of the society, the government does not have
any deep and pervasive control. Though the Minister exercises his
authority as the controlling department of Government in the matter of
making the grant but that itself may not be a conclusive feature. In a
welfare State government’s control is very pervasive and, in fact touches
all aspects of social existence. A society registered under the societies
Registration Act may be treated, as state if either the government
business is undertaken by the society or the public obligation of the State
is undertaken by the society. since such a position is not present in the
present case the Institute of Constitutional and Parliamentary Studies
does not come within the purview of ‘other authorities’ in Article 12.
In Pradeep Kumar Biswasv.Indian Institute of Chemical Biology10, the
question raised before the court was whether CSIR is a state within the
ambit of Article 12 or not ? A seven judge Bench of the Supreme Court
by a majority of 5:2 has overruled the decision of SabbajitTiwari’scase

8
(1987) 1 SCC 395
9
(1988) 1 SCC 236
10
(2002) 5 SCC 111
and held that Council of Scientific and Industrial Research (CSIR) is an
instrumentality of the State within the meaning of Article 12 of the
Constitution. The majority held that even though it was formed under
the Registration of Societies Act, 1860, yet it is a ‘State’ because the
government had overriding control over the organization. The object
incorporated in Memorandum of Association of CSIR “manifestly
demonstrates that CSIR was set up in the national interest to further the
economic welfare of the society by fostering planned development in the
country.” The government of India has a dominant role in the governing
body of the CSIR. All the members of the governing body, except ex-
officio members, are nominated by the President and their membership
can also be terminated by him. The Prime Minister is the ex-officio
President. The governing body also has the power to make rules, amend
or repeal the by-laws of CSIR but only with the sanction of Government
of India.
In Zee Telefilms v.Union of India11, the question was whether the Board
of Control for Cricket in India was “State” within the meaning of Article
12. The Board argued that its autonomous nature took it out of the ambit
of Article 12, per Pradeep Kumar Biswas. Zee Telefilms, on the other
hand, pointed to the “governmental functions exercised by the Board in
the area of cricket.” The court held in favour of the Board. Following
Pradeep Kumar Biswas, it noted that the Board was not created by
statue, the Government held no share capital, provided no financial
assistance, conferred no monopoly, exercised no pervasive control, and
had not transferred a government-owned corporation.
Consequently, Article 12 was not applicable. Responding to the
petitioners’ contentions, the Court then stated: “Even assuming that
there is some element of public duty involved in the discharge of the

11
(2005)
Board’s functions even then as per the judgment of this Court in Pradeep
Kumar Biswas that by itself would not suffice for bringing the Board
within the net of “other authorities” for the purpose of Article 12”.
The petitioners also argued a variant of the functional test-i.e., the power
of the Board, by virtue of its near-exclusive control over cricket in India,
to impact an important fundamental right on a national scale: the Article
19(1)(g) right to carry on a trade, business or profession- brought it
within the ambit of Article 12. Rejecting this contention, the Court held
that “the pre-requisite for invoking the enforcement of a fundamental
right under Article 32 is that the violator of that right should be a State
first.. But we have already held that the petitioner has failed to establish
that the Board is State within the meaning of Article 12. Therefore
assuming there is violation of any fundamental right by the Board that
will not make the Board a “State” for the purpose of Article 12”.
In V.K.Srivastavav.U.P. RajyaKarmachariKalyan Nigam12, the
question raised was whether the U.P. RajyaKarmachariKalyan Nigam is
a state within the meaning of Article of 12.
Following the decision of PradeepKumaarBiswas, it has been held that
U.P.RajyaKarmchariKalyan Nigam is an agency or instrumentality of
State and therefore, is a State within the meaning of Article 12 of the
constitution. Becausethe control of state on corporation (Nigam) is not
only regulatory but deep and pervasive. It is formed with the object of
catering to needs of government employees as supplement to their
salaries and perks. Top executives of the government department, are
ex-officio members and office bearers of Corporation. The corporation
is fully supported financially and administratively by State and its
authorities. Even in day to day functioning the corporation is supervised

12
AIR 2005 SC 411.
and controlled by various departmental authorities of State particularly
of food and civil supplies.
In the latest case of Kanpur JalSansthanv.BabuConstrution13 the court
said concept of State as used in Article 12 is quite different then what is
meant by an executive Government. It was held that an authority or
instrumentality or an agency of State has to act in a fair non-arbitrary
and reasonable manner and in fact it is controlled by chapter III of the
constitution of India but it does not assume the character of government
for all purposes.

13
2014
 Conclusion
With regard to article 12, it should be noted that concept of State has
undergone drastic change. The vertical application of fundamental
rights is based on the theory of Classical liberalism ‘which emphasizes
on the preservation of the private sphere against coercive State
interfere. Today state cannot be conceived of simply as a coercive
machinery wielding the thunderbolt of authority.14 With the venture of
neo-liberalization governmental policies like deregulation, privatization,
disinvestment etc. has cut down the extent of state power. As a result
neo liberalization private actors can infringe the fundamental rights of
the people. This state of affairs poses a challenge to the rights
constitutionalism as to whether it can protect the freedom and
autonomy of the individuals in the age of globalization. An apt solution
of this is subjecting the private actors to constitutional limits by
expanding the definition of—State under Article 12. The courts should
be anxious to enlarge the scope and width of the fundamental Rights by
bringing within their sweep every authority which is an instrumentality
or agency of the government or through the corporate personality of
which the government is acting, so as to subject the government in all
its myriad activities, whether through natural process or through
corporate entities, to the basic obligation of the fundamental rights.
Attempt should be made by the courts to expand the reach and ambit
of these, rather than to attenuate their meaning and content.15

Only then the aims and aspirations of Constitution makers can be

realized to the fullest extent possible. As Holmes put it- a word in the

14
Sukhdev Singh and ors v. Bhagatram Sardar Singh Raghuvanchi & Anr., AIR 1975 SC 1331
15
Maneka Gandhi v. Union of India, AIR 1978 SC 597
constitution is not a crystal clear, transparent and unchanging, in the
more important interpretative parts, the constitutional words are the
skins of living thoughts which change with the times and as society
changes.