ARTICLE 12: Definition of state

“Unless the context otherwise requires, the term ‘state’ include the following – executive and
legislature of Union and state; all local or other authorities within territory of India or under the
control of government.”

In the context of Art. 12, ‘authority’ means the power to make laws, byelaws, etc., which
have the force of law and power to enforce those laws. The expression ‘other authorities’ in Art. 12
is used after mentioning the executive and legislature of Union and States, and all local authorities
(viz. Municipalities, Panchayats). The ejusdem generis rule, however, could not be resorted to in
interpreting this expression, as there is no common genus running through these named bodies (in
Art. 12), nor can these bodies so placed in one single category on any rational basis.

In Electricity Board, Rajasthan and Sukhdew Singh v Bhagatram cases, the Supreme Court
held that only the authorities created by the Constitution or Statute are the ‘other authorities’,
though it is not necessary that statutory authority should be engaged in performing governmental
function. Thus, Rajasthan Electricity Board, Co-operative society, ONGC, LIC, etc. are held to be
‘other authorities’. But in subsequent decisions, a broad and liberal interpretation to the expression
‘other authorities’ was given in view of the fact that in a welfare state, a government has to employ
various agencies or instrumentalities (which are not created by statute).

In R.D. Shetty v International airport authority of India (AIR 1979 SC 1628), the International Airport
authority held to be ‘the State’. The court laid down the following tests:

i. State mainly or chiefly contributed to the financial resources.

ii. Deep and pervasive State control e.g. appointment and removal of members
of a society, etc.
iii. Functions of corporation are of public importance i.e. governmental in
essence.
iv. If a government department is transferred to a corporation.
v. Corporation enjoys monopoly status which is stat-conferred.

Applying this test in som Prakash v Union of India, the court held that a government company
(Bharat Petroleum Corporation) is ‘State’. The experession ‘other authorities’ is not confined only to
statutory corporation alone, but may include a government company, a registered society, or bodies
which have some nexus with the government. The emphasis is on ‘functionality plus State control’
rather than the statutory character of the corporation. In Ajay Jasia case, held that a registered
society is an agency or instrumentality of the State. Thus, held that the Regional Engineering College
established and administered by a registered society is a ‘state’.

In Unni Krishnan v State of A. P. (1993) 1 SCC 645, the court observed that the term
‘authority’ may cover any other person or body performing ‘public duty’. Thus, a private
medical/engineering college come within the writ jurisdiction of the court irrespective of the
question of aid and affiliation. In Tekraj vasandi case, held that the ‘Institute of Constitutional and
Parliamentary Studies’ is not a state’.

Similarly, in Chandra Mohan Khanna case, held that N.C.E.R.T. is not a ‘State’ as the
governmental control is confined only to proper utilization of the grant. in S.M. Ilyas v ICAR [1993 (1
SCC 182)], held that the Indian Council of agricultural Research is a ‘State’. In recent cases, held that
Hindustan Steel Works Construction Ltd. is not a State, steel Authority of India Ltd. is State; BCCI
(Board of Control for Cricket in india) is not a State.
In M.c. Mehta v Union of India (1987) 1SCC 395, the question was whether a private corporation
(shriram Food and Fertilizer Ltd. ) is a “State” under Art. 12. The court observed that a non-
governmental company can be placed within the meaning of Art. 12, if for_reasons of State control
and regulations and kind of public function they are performing, they satisfy the tests of
instrumentality or agency of government. In Indian Council for Enviro-Legal Action v UOI (996) 3 SCC
463, held that if by the action of the private corporate bodies a person’s fundamental right is
violated the Cour would no accept the argument that it is not ‘state’ within the meaning of Art. 12.

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 1, the Supreme
Court by a 5:2 majority held that CSIR (Council of Scientific and Industrial research ) is an
instrumentality of the State within the meaning of Art. 12 of the Constitution of India. It overruled
the decision in Sabhajit Tewari case (1975). The majority held that even though it was formed under
the Registration of Societies Act, 1860, but 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.

The court observed: “The Constitution has to an extent defined the word “State” in Art. 12
itself as including “the Government under the control of the Government of India”. That an
“inclusive” definition is generally not exhaustive is a statement of the obvious and as far as Art. 12 is
concerned, has been so held by the Supreme Court. The words “State” and “authority” used in Art.
12 therefore remain among “the great generalities of the Constituion” the content of which has
been and continues to be supplied by courts from time to time. Keeping pace with the broad
approach to the concept of equality under Arts.14 and 16, courts have whenever possible, sounght
to curb an arbitrary exercise of power against individuals by “centres of power”, and there was
correspondingly an expansion in the judicial definition of “State” in Art. 12.”

In Virndra Kumar Srivastava v U.P. Rajaya karmchari Kalyan Nigam (2005) 1 SCC 149, the
Apex Court explained the majority and minority opinions laid down in Pradeep Kumar Biswas case. It
observed: The multiple test which is to be applied to ascertain the character of a body as falling
within Art. 12 or outside as laid down by the majority view in the aforesaid case in to ascertain the
nature of financial, functional and administrative control of the State over it and whether it is
dominated by the Stat Government and the control can be said to be so deep and pervasive as
described in the minority wiew so as to satisfy the court “of brooding presence of the Government”
on the activities of the Corporation.

In G. Bassi Reddy v International Crops Research Institute (AIR 2003 SC 1764), the
International Crops research Institute was not held to be a State within the meaning of Art. 12. The
court opined that it is an international organization and has beeb set up as Non-profit research and
training centre to help developing countries to alleviate rural poverty and hunger. it is not set up by
the Government, and is not controlled by nor is accountable to the government.

In Rupa Ashok Hurra v Ashok Hurra (AIR2002 SC 1771), the Apex Court has reaffirmed and
ruled that no judicial proceeding could be said to violate any of the fundamental rights. It was said to
be settled position of law that the superior courts of justice did not fall within the ambit of ‘State’ or
‘other authorities’ under Art. 12.

In Zee Telefilms Ltd. v Union of India (2005) 4 SCC 649, the Apex Court applied the tests laid
down in Pradeep Kumar Biswas (2002) 5 SCC 111, to determine whether a body is State: (i) Principles
laid down in Ajay Hasia (1981) 1 SCC 722 are not a rigid set of principles so that if a body falls within
any of them it must ex hypothesis, be considered to be a State within the meaning of Art. 12. (ii) The
question in each case will have to be considered on the basis of facts available as to whether in the
light of the cumulative facts as established, the body is financially, functionally, administratively
dominated, by or under the control, of the Government. (iii) Such control must be particular to the
body in question and must be pervasive. (iv) Mere regulatory control whether under stature or
otherwise would not serve to make a body a part of the State. In the present case, the BCCI (Board
of Control for Cricket in India) was not found by the court (majority opinion) to be ‘State’.

The court observed: In Art. 12 the term “other authorities” was introduced at the time of
framing of the Constitution with a limited objective of granting judicial review of actions of such
authorities which are created under stature and which discharge State functions. However, because
of the need of the day the Supreme Court in Rajasthan SEB (1967) 3 SCR 377 and Sukhdev Singh
(1975) 1 SCC 421, noticing the socio-economic policy of the country thought it fit to expand the
definition of the term “other authorities” to include bodies other than statutory authorities. This
development of law by judicial interpretation culminated in the judgment of the seven-Judge Bench
in Pradeep Kumar Biswas case. It is to be noted that in the meantime the socio-economic policy of
the country has changed and the State is today distancing itself from commercial activities and
concentrating on governance rather than on business. Hence, there seems to be no need to further
expand the scope of “other authorities” in Art. 12 by judicial interpretation at least for the time
being.

Is Judiciary Included in the word ‘State’?

The judiciary, though not expressly mentioned in Art. 12, it should be included so, since courts are
set up by stature and exercise power conferred by law. In Naresh v State of Maharashtra (AIR 1967
SC 1), it was held that even if a court is the State a writ under Art. 32 cannot be issued to a High
Court of competent jurisdiction against its judicial orders, because such orders cannot be said to
violate the fundamental rights. What the judicial decision purports to do is to decide the controversy
between the parties and nothing more. In view of the judgment in A.R. Antulay v R.S. Nayak (AIR
1988 SC 1531), where it was held that the court could not pass an order or issue a direction which
would be violative of fundamental rights, it can be said that the expression ‘State’ includes judiciary
also.