Jamia Millia Islamia

(Constitutional Law)

Topic:Concept of State Under Article 12

Submitted by: Shazia Sameen

Submitted to: Dr. ​Mohammad​ Asad Malik
Course: BA LLB(H)(S.F)
Semester: IVth
Roll No : 53
 Introduction
The Constitution of India is a living document and the supreme law of India which is
instrumental is making the government system and democracy work. The document sets out the
fundamental rights, directive principles and the duties of citizens as well as the infrastructure,
political principles, powers and duties of the government. According to Article 12 of the
Constitution of India, the term ‘State’ denotes the union and state governments, the Parliament
and state legislatures and all local or other authorities within the territory of India or under the
control of the Indian government.Over the years, the following bodies, which have been vested
with the power to make laws and have been created by the Constitution of India, have also been
included within the ambit of a State.The President of India and Governors of states with
executive powers, Any department of the government like the Income Tax Department, Any
institution controlled by the government like the International Institute for Population Sciences,
Municipalities, Panchayats, and other similar local authorities with the power to make and
enforce rules, regulations and laws or any other organisation which exercises sovereign
functions. The Judiciary does not have a specific mention in Article 12, However, the school of
thought is that since the judiciary has the power to make and enforce laws, it should be
considered to be a State. Since an erroneous judgement may cause the violation of the
fundamental rights of a citizen, unreasonable decisions of the Courts are subjected to the tests of
Article 14 of the Constitution.Thus, a mere regulatory power of the government over any
statutory or non statutory body is not enough for it to be deemed as a State. The concerned body
has to be financially, functionally and administratively and pervasively controlled by the
government.The definition of the expression 'the State' in Article 12, is however, for the purposes
of parts III and IV of the Constitution, whose contents clearly show that the expression 'the
State' in Article 12 as also not confined to its ordinary and constitutional sense as extended in
the inclusive portion of Article 12 but is used in the concept of the State in relation to the
Fundamental Rights guaranteed in part III of the Constitution and the Directive principles of
State policy contained in part IV of the Constitution which principles are declared in Article 14
to the fundamental to the governance of the country and enjoins upon the State to apply making
laws.
Definition of Article 12
The Constitution of India had followed the U.S. precedent and enacted Fundamental Rights in
the Constitution itself. The United States Constitution has defined their legislative and executive
powers in two Articles, which means it easier to define their correlation. however, Indian
Constitution being an elaborative one, it is difficult to correlate the legislative and executive
powers because those powers are to be found in widely separated parts of our Constitution.
Article 12 of the Indian constitution.

ARTICLE 12: Definition In this part, unless the context otherwise requires, the State
includes the government and parliament of India and the government and the legislature of
each of the states and all local or other authorities within the territory of India or under the
control of the government of India.
The word 'State' has different meanings depending upon the context in which it is used. The
expression 'The State' when used in parts III , IV of the Constitution is not confined to only the
federating States or the Union of India or even to both. In the express terms of Article 12, the
expression 'the State' includes ____

● The government of India

● Parliament of India
● The government of each of the States which constitute the Union of India
● The legislature of each of the States which constitute the Union of India
● All local authorities within the territory of India.
● All local authorities under the control of the government of India.
● All other authorities within the territory of India and
● All other authorities under the control of the government of India
This word indicates that the definition is not exhaustive. Hence, even though the definition
expressly mentions only the Government and the Legislature, there might be other
instrumentalities of State Action within the sweep of the definition. The non-mention of the
Judiciary does not, therefore, necessarily indicate that the courts are intended to be excluded
from the definition . The word ‘includes’ the definition of Article 12 enables the Indian Supreme
Court to include within the definition all the three organs of the State (executive, legislative and
judicial) as well as all other authorities which have been included within the concept of State
action in U.S.A., and that any narrowing down of the ambit of the definition would be defeating
the object of inserting the definition of Article 12.

AUTHORITY

Literally ‘authority’ means a person or body exercising power or having a legal right to
command and be obeyed. An ‘Authority’ is a group of persons with official responsibility for a
particular area of activity and having a moral or legal right or ability to control others. If a
particular cooperative society can be characterized as a “State” under Article 12, it would also be
“an authority” within the meaning of Article 226 of the Constitution. “Authority” means a public
administrative agency or corporation having quasi-governmental powers and authorized to
administer a revenue producing public enterprise. It is wide enough to include all bodies created
by a statute on which powers are conferred to carry out governmental or quasi- governmental
functions. “Authority” in law belongs to the province of power. The word “State” and
“Authority” used in Article 12 remain among “the great generalities of the Constitution” the
content of which has been and continues to be applied by Courts from time to time.

LOCAL AUTHORITIES WITHIN THE TERRITORY OF INDIA”

Local authorities are under the exclusive control of the States, by virtue of entry 5 of List II of
the 7th Schedule. That entry contains a list of some local authorities. This expression will,
therefore, include a Municipal Committee; a Panchayat; a Port Trust; Municipality is a “State”
within the meaning of Article 12. But that does not mean that the authorities are State
Government or Central Government and there is distinction between State and Government.
 1
​In Union of India v R.C.Jain , to be considered a “local authority”, an authority must fulfill the
following tests-
1) Separate legal existence.
2) Function in a defined area.
3) Has power to raise funds.
4) Enjoys autonomy.
5) Entrusted by a statute with functions which are usually entrusted to municipalities

In ​University of Madras v. Santa Bai2, the Madras High Court held that ‘other authorities’
could only indicate authorities of a like nature, i.e.​, Ejusdem generis​. So construed, it could only
mean authorities exercising government or sovereign functions. It cannot include persons,
natural or juristic, such as, a University unless it is ‘maintained by the state.’ But in ​Ujjam Bai v.
State of UP3, the Court rejected this restrictive interpretation of the expression under ‘other
authorities’ given by the Madras High Court and held that the ejusdem generis rule could not be
resorted to in interpreting this expression. In Article 12 the bodies specifically named are the
Government of the Union and the States, the Legislature of the Union and the States and local
authorities. There is no common genus running through these named bodies nor can these bodies
so placed in one single category on any rational basis.
​Rajasthan state Electricity Board v Mohan Lal & others 4
The appellant-Board is "other authority" within the meaning of Art. 12 and therefore, is "State"
to which appropriate directions could be given under Article 226 and 227.The expression "other
authority" is wide enough to include within it every authority created by a statute, on which
powers are conferred to carry out governmental or quasi- governmental functions and
functioning within the territory of India or under the control of the Government of India.

1 ​ ​AIR 951, 1981 SCR (2) 854.

2 ​AIR 1954 Mad 67, (1953) IIMLJ 287.

3 ​ AIR​ ​1962 1621, 1963 SCR (1) 778.
4
AIR ​1967 1857, 1967 SCR (3) 377.
 5
Ramana Dayaram Shetty v The International Airport Authority
It may, therefore, be possible to say that where the financial assistance of the State is so much as
to meet almost entire expenditure of the corporation, it would afford some indication of the
corporation being impregnated with governmental character. But where financial assistance is
not so extensive, it may not by itself, without anything more render the corporation an
instrumentality or agency of government, for there are many private institutions which are in
receipt of financial assistance from the State and merely on that account, they cannot be
classified as State agencies. Equally a mere finding of some control by the State would not be
determinative of the question "since a State has considerable measure of control under its police
power over all types of business operations". But 'a finding of State financial support plus an
unusual degree of control over the management and policies might lead one to characteristic an
operation as State action" vide Sukhdev v. Bhagatram So also the existence of deep and
pervasive State control may afford an indication that the Corporation is a State agency or
instrumentality. It may also be a relevant factor to consider whether the corporation enjoys
monopoly status which is State conferred or State protected. There can be little doubt that State
conferred or State protected monopoly status would be highly relevant in assessing the aggregate
weight of the corporation's ties to the State.
6
Ajay Hasia Etc v Khalid Mujib Sehravardi​
It is in the light of this discussion that we must now proceed to examine whether the Society in
the present case is an "authority" falling within the definition of "State" in Article 12. Is it an
instrumentality or agency of the Government? The answer must obviously be in the affirmative if
we have regard to the Memorandum of Association and the Rules of the Society. The
composition of the Society is dominated by the representatives appointed by the Central
Government and the Governments of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh
with the approval of the Central Government.The monies required for running the college are
provided entirely by the Central Government and the Government of Jammu & Kashmir and
even if any other monies are to be received by the Society, it can be done only with the approval

5 AIR ​1979 1628, 1979 SCR (3)1014.

​ IR ​1981 487, 1981 SCR (2) 79​.
6A
of the State and the Central Governments. The Rules to be made by the Society are also required
to have the prior approval of the State and the Central Governments and the accounts of the
Society have also to be submitted to both the Governments for their scrutiny and satisfaction.
The Society is also to comply with all such directions as may be issued by the State Government
with the approval of the Central Government in respect of any matters dealt with in the report of
the Reviewing Committee. The control of the State and the Central Governments is indeed so
deep and pervasive that no immovable property of the Society can be disposed of in any manner
without the approval of both the Governments. The State and the Central Governments have
even the power to appoint any other person or persons to be members of the Society and any
member of the Society other than a member representing the State or the Central Government
can be removed from the membership of the Society by the State Government with the approval
of the Central Government. The Board of Governors, which is in charge of general
superintendence, direction and control of the affairs of Society and of its income and property is
also largely controlled by nominees of the State and the Central Governments. It will thus be
seen that the State Government and by reason of the provision for approval, the Central
Government also, have full control of the working of the Society and it would not be incorrect to
say that the Society is merely a projection of the State and the Central Governments and come
under article 12.
Zee Telefilms v BCCI 7
The Board discharges public duties which are in the nature of State functions. Elaborating on this
argument it was pointed out that the Board selects a team to represent India in international
matches. The Board makes rules that govern the activities of the cricket players, umpires and
other persons involved in the activities of cricket. These, according to the petitioner, are all in the
nature of State functions and an entity which discharges such functions can only be an
instrumentality of State, therefore, the Board falls within the definition of State for the purpose
of Article 12, would this be sufficient to hold the Board to be a State for the purpose of Article
12. It should be borne in mind that the State/Union has not chosen the Board to perform these

7 AIR 2004, SC 541.

duties nor has it legally authorised the Board to carry out these functions under any law or
agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of
such bodies' own volition. In such circumstances when the actions of the Board are not actions as
an authorised representative of the State, can it be said that the Board is discharging State
functions? The answer should be no. In the absence of any authorisation, 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. However, it is true that the Union
of India has been exercising certain control over the activities of the Board in regard to
organising cricket matches and travel of the Indian team abroad as also granting of permission to
allow the foreign teams to come to India. But this control over the activities of the Board cannot
be construed as an administrative control. At best this is purely regulatory in nature.

Whether State and Executive the same?

An authority or instrumentality of the State or agency of the State has to act in a fair,
non-arbitrary and reasonable manner and, in fact, is controlled by Chapter III of the Constitution
but it does not assume the character of "Government" for all purposes. In fact, Rule 8B clearly
states "in relation to any suit by or against the Central Government or against a public officer in
the service of the Government" and similar language is used for the State Government. Hence,
the legislature has deliberately used a restrictive definition and its scope cannot be expanded to
cover an agency or instrumentality of the State by interpretative process.
Whether BCCI is “state”or not?
​In the case of BCCI v Netaji Cricket Club8 ​Supreme Court upheld the monopoly status of
BCCI and further held that having regard to the enormity of power exercised by it the Board is

8
​AIR 2005 4 SCC 741.
bound to follow the doctrine of fairness‘ and good faith‘ in all its activities and further held that
having regard to the fact that it has to fulfill the hopes and aspirations of millions, it has a duty to
act reasonably and it cannot act arbitrarily, whimsically or capriciously. As the Board controls
the profession of cricket, its actions are required to be judged and viewed by higher standards. In
Zee Telefilms case Apex Court elaborately discussed about the position of BCCI as an
instrumentality of State under Article 12. Court squarely applied the test in ​Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology and held that since BCCI is not financially,
functionally and administratively controlled by government cumulatively and so it cannot be
held as a State and thus writ petition under Article 12 is not maintainable.
In the case of BCCI v Cricket Association Of Bihar9 The majority view thus favours the view
that BCCI is amenable to the writ jurisdiction of the High Court under Article 226 even when it
is not ‘State’ within the meaning of Article 12. The rationale underlying that view if we may say
with utmost respect lies in the “nature of duties and functions” which the BCCI performs. It is
common ground that the respondent-Board has a complete sway over the game of cricket in this
country. It regulates and controls the game to the exclusion of all others. It formulates rules,
regulations norms and standards covering all aspect of the game. It enjoys the power of choosing
the members of the national team and the umpires. It exercises the power of disqualifying players
which may at times put an end to the sporting career of a person. It spends crores of rupees on
building and maintaining infrastructure like stadia, running of cricket academies and Supporting
State Associations. It frames pension schemes and incurs expenditure on coaches, trainers etc. It
sells broadcast and telecast rights and collects admission fee to venues where the matches are
played. All these activities are undertaken with the tacit concurrence of the State Government
and the Government of India who are not only fully aware but supportive of the activities of the
Board. The State has not chosen to bring any law or taken any other step that would either
deprive or dilute the Board’s monopoly in the field of cricket. On the contrary, the Government
of India have allowed the Board to select the national team which is then recognized by all
concerned and applauded by the entire nation including at times by the highest of the dignitaries
when they win tournaments and bring laurels home. Those distinguishing themselves in the

9
​ ​AIR 2015 1 MLJ 711.
international arena are conferred highest civilian awards like the Bharat Ratna, Padma
Vibhushan, Padma Bhushan and Padma Shri apart from sporting awards instituted by the
Government. Such is the passion for this game in this country that cricketers are seen as icons by
youngsters, middle aged and the old alike. Any organization or entity that has such pervasive
control over the game and its affairs and such powers as can make dreams end up in smoke or
come true cannot be said to be undertaking any private activity. The functions of the Board are
clearly public functions, which, till such time the State intervenes to takeover the same, remain in
the nature of public functions, no matter discharged by a society registered under the
Registration of Societies Act. Suffice it to say that if the Government not only allows an
autonomous/private body to discharge functions which it could in law takeover or regulate but
even lends its assistance to such a non-government body to undertake such functions which by
their very nature are public functions, it cannot be said that the functions are not public functions
or that the entity discharging the same is not answerable on the standards generally applicable to
judicial review of State action. Our answer to question No.1, therefore, is in the negative, qua,
the first part and affirmative qua the second. BCCI may not be State under Article 12 of the
Constitution but is certainly amenable to writ jurisdiction under Article 226 of the constitution of
India.

Whether “JUDICIARY” is “STATE” or not?

The definition of State under Article 12 of the Constitution does not explicitly mention the
Judiciary. Hence, a significant amount of controversy surrounds its status vis-a-vis Part III of the
Constitution. Bringing the Judiciary within the scope of Article 12 would mean that it is deemed
capable of acting in contravention of Fundamental Rights. It is well established that in its
non-judicial functions, the Judiciary does come within the meaning of State. However,
challenging a judicial decision which has achieved finality, under the writ jurisdiction of superior
courts on the basis of violation of fundamental rights, remains open to debate. On the one hand,
the Judiciary is the organ of the State that decides the contours of the Fundamental Rights. Their
determination, of whether an act violates the same, can be right or wrong. If it is wrong, the
judicial decision cannot ordinarily be said to be a violation of fundamental rights. If this were
allowed, it would involve protracted and perhaps unnecessary litigation, for in every case, there
is necessarily an unsatisfied party. On the other hand, not allowing a decision to be challenged
could mean a grave miscarriage of justice, and go unheeded, merely because the fallibility of the
Judiciary is not recognized.
The erroneous judgment of subordinate Court is subjected to judicial review by the superior
courts and to that effect, unreasonable decisions of the Courts are subjected to the tests of Article
14 of the Constitution.

10
In the case of ​Naresh v. State of Maharashtra

The issue posed before the Supreme Court for consideration whether judiciary is covered by the
expression ‘State’ in Article 12 of the Constitution. The Court held that the fundamental right is
not infringed by the order of the Court and no writ can be issued to High Court.

However in yet another case, it was held that High Court Judge is as much a part of the State as
the executive.

In Amir Abbas v. State of M.B the Court made the following observation: “Denial of equality
before the law or the equal protection of the laws can be claimed against executive or legislative
process but not against the decision of a competent tribunal.” The scope of challenging a judicial
decision on the ground of contravention of fundamental right is much narrower in India, for
several reasons:

1) There being no ‘Due Process’ clause, there is no scope for challenging a judicial
decision on a constitutional ground of unfairness

2) The decisions of the Supreme Court being binding upon all Courts within the territory
of India Art. 141, there is no scope for a decision of the Supreme Court being
challenged as violative of a fundamental right. But there is no reason why the

10 AIR 1996(3), SCR 744.

 decision or order of a subordinate court shall not be open to be questioned on the
ground that it contravenes a fundamental right.

In fact so far as the guarantee of equal protection in Article 14 is concerned, our Supreme Court,
in the early case ​held that any State action, executive, legislative or judicial, which contravenes
Article 14, is void, But the Supreme Court limited the application of Article 14 to judicial
decisions by the qualification that they will hit by the Article only when they involved a ‘willful
and purposeful discrimination’.
11
However, In the landmark case of ​Rupa Ashok Hurra v Ashok Huna , the Constitution Bench
of five judges examined whether a writ petition can be maintained under Article 32 to question
the validity of a judgment of this Court after the review petition has been dismissed . Firstly, it
was contended that there would be a reexamination of the case only where the judicial order was
passed without jurisdiction, in violation of the principles of natural justice, in violation of
fundamental rights or where there had been gross injustice, under the inherent jurisdiction of the
Court. It was admitted that, in the rarest of rare cases, a petition under Article 32 could be
entertained where even a review petition had been rejected. The "corrective jurisdiction" of the
Court, it was argued, arose from those provisions of the Constitution conferring power on the
Supreme Court such as Article 32 and Articles 129-40. Secondly, the remedy for the above rare
cases was, since no appeal lies from the order of the Apex Court, an application under Article 32,
if senior counsel were able to discern some permissible ground for the same. In this case, Justice
Syed Shah Mohammed Quadri pointed out that Article 32 can be invoked only for the purpose of
enforcing the fundamental rights conferred in Part III and that no judicial order passed by any
superior court in judicial proceedings can be said to violate any of the fundamental rights, since
superior courts of justice do not fall within the ambit of State or other authorities under Article
12 of the Constitution. The Court adopted an unusual unanimous approach by holding that even
after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person
might be provided with an opportunity to seek relief in cases of gross abuse of the process of the

11 AIR
​ 2002, SC 1771.
Court or gross miscarriage of justice, because the judgment of the ​Supreme Court is final. It was
held that the duty to do justice in these rarest of rare cases shall have to prevail over t​h​e policy of
certainty of judgment.

Several grounds were laid down whereby a "curative petition" could be entertained and a
petitioner is entitled to relief ex debito justitiae. It could be used, for example, in cases of
violation of principles of natural justice, where interested person is not a party to the lis and
where in the proceedings a Judge failed to disclose his connection with the subject-matter or the
parties giving scope for an apprehension of bias. The petitioner would have to specifically
mention the grounds on which he was filing the curative petition.
12
The Supreme Court in ​Ujja​m ​Bai v. Union of India , h​ eld that a writ of ​certiorari ​could also lie
to bodies which are under an obligation to act judicially or quasi judicial. Since such a writ lies,
it follows that there are some fundamental rights which can be violated by a judge acting
judicially in a court. Since the binding power of any judgment of the Supreme Court is based on
the fact that it is backed by State which has the po​w​er and necessary resources to enforce, it
would only be logical that the Judici​a​ry itself be considered part of the State​.

​ IR​ ​1962 1621, 1963 SCR (1) 778.

12 A
 ​CONCLUSION
The definition of “state” and “other authorities” has been constantly evolving over the years in
the court of law. The court ,over the years has issued various guidelines through judicial
pronouncements ,about the determination of state and other authorities. Starting from Rajasthan
Electricity board case where the court said that each and every authority created by statute on
which powers are conferred to carry out governmental or quasi –governmental functions comes
under the term”other authorities”.In Sukhdev Singh’s case the court held that IFC,ONGC and
LIC were created by statute and had power to make rules and regulations and were under
pervasive control of the govt. But in Sabhajit Tiwari’s case the court held that although CSIR
was created by statute but was not state because it was not performing any important state
function.In R.D Shetty case it was held that a body can be considered”other authority”if it can be
regarded as an instrumentality of the state.The court also issued broad guidelines to determine
whether a body can be regarded as an instrumentality of the state or not.In Som Prakash’s case it
was held that “the true test is functional .Not how the legal person is born but why is it created.
More guidelines were issued in Ajay Hasia case but in Pradeep Biswas case it was held that the
guidelines issued in Ajay Hasia were not of rigid nature and considered the Sabhajit Tiwari's
case which it overruled because on close examination the court found that although CSIR was
formed under Registration Of Societies act but it was “state”because government has overriding
control of the organization.The judiciary in the Zee Teleflims case also followed the guidelines
of Pradeep Biswas case and held that BCCI was not”state” on the basis of”deep and
pervasive”control test.The legal status of BCCI was reaffirmed in 2015 when the court held that
although BCCI is not state but is still amenable to writ jurisdiction because it performs functions
which are of state importance.The definition of State under Article 12 of the Constitution does
not explicitly mention the Judiciary. Hence, a significant amount of controversy surrounds its
status vis-a-vis Part III of the Constitution. Bringing the Judiciary within the scope of Article 12
would mean that it is deemed capable of acting in contravention of Fundamental Rights. It is
well established that in its non-judicial functions, the Judiciary does come within the meaning of
State. However, it’s still a debate.