Article 12 Cases

1) Sabhajit Tewary v. Union of India (1975) 3 SCR 616

2) Sukhdev Singh V. Bhagat Ram AIR 1975 SC 1331
3) RD Shetty v. International Airport Authority of India AIR 1979
4) Ajay Hasia v. Khalid Mujib, AIR 1981 SC 480
5) Pradeep Kumar Biswas and Ors. v. Indian Institute of Chemical Biology and Ors.,
(2002) 5 SCC 111
6) Zee Telefilms Ltd. And Anr. V. Union of India AIR 2005 SC 2677

1) Sabhajit Tewary v. Union of India, (1975) 3 SCR 616

In this case it was decided that Indian Council of Scientific Research, a body though
registered as a non-statutory body, but having a good deal of govt. control and
funding, is not a State within the meaning of Art 12. But this decision was overruled
by the SC in Pradeep Kumar Biswas case.

2) Sukhdev Singh V. Bhagat Ram, AIR 1975 SC 1331

The question was whether the Oil and Natural Gas Commission, the Industrial
Finance Corporation and the Life Insurance Corporation established under statutes of
Parliament are authorities under Article 12 of the Constitution.
The majority of the judges in this case held that:
 The State, being an abstract entity could undertake trade or
business under Article 298 via an agency, instrumentality or a
juristic person.
 Statutory corporations are agencies/instrumentalities of the
State for carrying on trade and business which would have
been otherwise carried out by State itself.
 Therefore the test must be to see whether a body is acting as an
agency or instrumentality of the State.
In this case the Court found that bodies like LIC, ONGC etc. were created by statutes,
had statutory power to make binding rules and regulations and were under the
pervasive control of the Gvt. In light of these facts plus the combination of State aid
and furnishing of an important public service by these corporations, made the SC
declare these corporations to be State under Art 12.

3) RD Shetty v. International Airport Authority of India,

AIR 1979
The first respondent issued a notice inviting tenders from Registered IInd Class
Hoteliers having at least five years experience for putting up and running a restaurant
and two snack bars at the International Airport of Bombay. In spite of not satisfying
this condition of eligibility, the tender of the fourth respondent was accepted giving
rise to the appellant’s cause of action. It was alleged by the appellant that in so doing,
he and others were deprived of an equal opportunity of submitting their tenders and
being considered for the contract. While deciding this case, the Court had to first
ascertain whether the International Airport Authority of India, a corporate body
constituted under the International Airport Authority Act, 1973 was ‘State’ under
Article 12 of the Constitution.
The Supreme Court in this case upheld the ratio of Sukhdev vs Bhagat Ram case and
re-iterated the test, for finding out whether a body is ‘State’, as ‘If a statutory
corporation, body or other authority is an instrumentality or agency of Government, it
would be an 'authority' and therefore 'State' within the meaning of that expression in
Article 12.’
Examination of the provisions of International Airport Authority Act, 1971 along this
the above ‘Agency/Instrumentality’, the SC concluded International Airport Authority
is undoubtedly an instrumentality or agency of the Central Government and falls
within the definition of 'State'. The Court went on to conclude that just as Govt acting
through its officers is subject to constitutional and public law limitations, similarly
Gvt acting through agency is subject to equal restrictions. Therefore the International
Airport Authority of India is subject to the limiting or restricting provisions of the
Constitution and other public laws.

4) Ajay Hasia v. Khalid Mujib, AIR 1981 SC 480

Under challenge was the validity of admissions made to the Regional Engineering
College, Srinagar for the academic year 1979-80 on grounds of arbitrariness.
Admissions to candidates belonging to the State of Jammu and Kashmir were to be
given on the basis of comparative merit which was to be determined by holding a
written entrance test of 100 marks in specified subjects and a viva voce examination
of 50 marks distributed across four factors mentioned in the admission resolution. The
viva voce itself, and its specific holding to the petitioners’ cases was challenged.
Before taking up the substantive question, the Court had to first decide whether the
REC was an authority under Article 12 of the Constitution.
In this case the Court held that in-order to be an agency or instrumentality of the Sate
the impugned body or corporation need not necessarily be created by an Act or statue.
The enquiry must not be how the juristic person was born but rather why it was born.
The Court laid down following parameters to identify whether a body was State or
not?
1) if the entire share capital of the corporation is held by the Government
2) where the financial assistance of the State is so much as to meet almost entire
expenditure of the corporation
3) whether the corporation enjoys monopoly status which is the State conferred or
protected
4) existence of deep and pervasive State control
5) if the functions of the public corporation are of public importance and closely
related to governmental functions
6) if a department of the Government is transferred to a corporation

Applying these tests Regional Engineering College was held to be an instrumentality

or agency of the State because of the deep and pervasive Gvt control over the society.

5) Zee Telefilms Ltd. And Anr. V. Union of India, AIR 2005

SC 2677
Facts:
The Board of Control for Cricket in India had terminated a contract with the petitioner
pertaining to the grant of exclusive television rights for a period of four years. This
action was challenged as arbitrary and violative of Article 14 of the Constitution.

Observations by the Court:

1. Board is not created by a statute.
2. No part of the share capital of the Board is held by the Government.
3. Practically no financial assistance is given by the Government to meet the whole or
entire expenditure of the Board.
4. The Board does enjoy a monopoly status in the field of cricket but such status is
not State conferred or State protected.
5. There is no existence of a deep and pervasive State control. The control if any is
only regulatory in nature as applicable to other similar bodies. This control is not
specifically exercised under any special statute applicable to the Board. All functions
of the Board are neither public functions nor are they closely related to governmental
functions.
6. The Board is not created by transfer of a Government owned corporation. It is an
autonomous body.
7. The facts established do not cumulatively show that the Board is financially,
functionally of administratively dominated by or is under the control of the
Government. Thus the little control that the Government may be said to have on the
Board is not pervasive in nature. Such limited control is purely regulatory control and
nothing more.

Argument of the Appellant:

1) In the present day context cricket has become a profession and that the
cricketers have a fundamental right under Article 19(1) (g) to pursue their
professional career as cricketers. It was also submitted that the Board controls
the said rights of a citizen by its rules and regulations and since such a
regulation can be done only by the State the Board of necessity must be
regarded as an instrumentality of the State.
2) Memorandum of Association and the rules and regulations and due to its
monopolistic control over the game of Cricket the Board has all pervasive
powers to control a person's cricketing career as it has the sole authority to
decide on his membership and affiliation to any particular Cricketing
Association, which in turn would affect his right to play cricket at any level in
India as well as abroad.

Issue:
1) On the basis of the argument of the appellant that the BCCI has controls one
of the fundamental rights of the Indian citizens (cricketers) under Article 19(1)
(g), would such a control make the BCCI ‘state’ for the purpose of Article 12?
2) Whether the duties carried out by the Board, in selecting the national cricket
team etc. amounted to public duties? If they were public duties whether BCCI
is state or not?

Judgment:
1) To argue that every entity, which validly or invalidly arrogates to itself the
right to regulate or for that matter even starts regulating the fundamental right
of the citizen under Article 19(1) (g), is a State within the meaning of Article
12 is to put the cart before the horse. If such logic were to be applied every
employer who regulates the manner in which his employee works would also
have to be treated as State.

2) If the argument of the learned counsel for the petitioner is to be accepted then
the petitioner will have to first establish that the Board is a State under Article
12 and it is violating the fundamental rights of the petitioner. In this petition
under Article 32 we have already held that the petitioner has failed to establish
that the Board is State within the meaning of Article 12.

3) In the absence of any authorization, if a private body chooses to discharge any

such function which is not prohibited by law then it would be incorrect to hold
that such action of the body would make it an instrumentality of the State. The
Union of India has tried to make out a case that the Board discharges these
functions because of the de facto recognition granted by it to the Board under
the guidelines framed by it but the Board has denied the same. In this regard
we must hold that the Union of India has failed to prove that there is any
recognition by the Union of India under the guidelines framed by it and that
the Board is discharging these functions on its own as an autonomous body.

4) It cannot be denied that the Board does discharge some duties that can be said
to be akin to public duties or State functions and if there is any violation of
any constitutional or statutory obligation or rights of other citizens, the
aggrieved party may not have a relief by way of a petition under Article 32.
But that does not mean that the violator of such right would go scot-free
merely because it or he is not a State. Though the remedy under Article 32 is
not available, an aggrieved party can always seek a remedy under the ordinary
course of law or by way of a writ petition under Article 226 of the
Constitution which is much wider than Article 32