ARTICLE 12

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 authority
within the territory of India or under the control of the Government of India.

A. In this part:
- i.e., in Part III
- However, see, Art 36:
“36. Definition.- In this Part, unless the context otherwise requires, “the State”
has the same meaning as in Part III.”

B. Unless the context otherwise requires:

Instances of use of the expression “the State” in Part III:
Art 13(2),
Art 14,
Art 15(1), Art 15(3), Art 15(4), Art 15(5), Art 15(6),
Art 16(1), Art 16(2), Art 16(4), Art 16(4A), Art 16(4B), Art 16(6)
Art 18(1), Art 18(3), Art 18(4)
Art 19(2)-(6)
Art 21A
Art 23(2)
Art 25(2)
Art 28(2), Art 28(3)
Art 30(1A), Art 30(2)
Art 31A
Art 31C
Art 33

Instances of other references to State/States, etc in Part III

Art 12: ‘the States’
Art 15(2)(b): ‘State funds’
Art 16(3): ‘a state’; ‘that State’
Art 18(2), Art 18(4): ‘foreign State’
Art 19(2): ‘Foreign States’
Art 28(2): ‘State funds’
Art 28(3): ‘State funds’
Art 31A(2)(a)(i): ‘the States’
Art 31C: ‘a State’
Art 34: ‘a State’
Art 35(a): ‘a State’

C. “the Government and Parliament of India and

the Government and the Legislature of each of the States and”
- Includes the legislative and executive wings of the Union and the States in all
their possible varieties

D. local authorities:
- S. 3(31) of the General Clauses Act, 1897 defines ‘local authority’ as follows:
“(31) “local authority” shall mean a municipal committee, district board,
body of port commissioners or other authority legally entitled to, or
entrusted by the Government with, the control or management of a
municipal or local fund;”
- The General Clauses Act, 1897 shall apply for interpretation of the Constitution.
(See Art 367(1) r/w Art 372)
- Examples:
a) Madras Port Trust: S Sarangapani v. Madras Port Trust, AIR 1961 Mad.
234
b) Village Panchayat: Ajit Singh v. State of Punjab, AIR 1967 SC 856
 c) Municipal Board: Rashid Ahmed v. Municipal Board, Kairana, AIR
1950 SC 163
- This extract is taken from Union of India v. R.C. Jain, (1981) 2 SCC 308 :
1981 SCC (L&S) 323 at page 311
“2. Let us, therefore, concentrate and confine our attention and enquiry to
the definition of “local authority” in Section 3(31) of the General Clauses
Act. A proper and careful scrutiny of the language of Section 3(31) suggests
that an authority, in order to be a local authority, must be of like nature
and character as a Municipal Committee, District Board or Body of Port
Commissioners, possessing, therefore, many, if not all, of the distinctive
attributes and characteristics of a Municipal Committee, District Board, or
Body of Port Commissioners, but, possessing one essential feature,
namely, that it is legally entitled to or entrusted by the government with,
the control and management of a municipal or local fund. What then are
the distinctive attributes and characteristics, all or many of
which a Municipal Committee, District Board or Body of Port
Commissioners shares with any other local authority? First, the
authorities must have separate legal existence as corporate
bodies. They must not be mere governmental agencies but must be
legally independent entities. Next, they must function in a defined
area and must ordinarily, wholly or partly, directly or
indirectly, be elected by the inhabitants of the area. Next, they
must enjoy a certain degree of autonomy, with freedom to
decide for themselves questions of policy affecting the area
administered by them. The autonomy may not be complete and the
degree of the dependence may vary considerably but, an appreciable
measure of autonomy there must be. Next, they must be entrusted by
statute with such governmental functions and duties as are
usually entrusted to municipal bodies, such as those connected with
providing amenities to the inhabitants of the locality, like health and
education services, water and sewerage, town planning and development,
roads, markets, transportation, social welfare services etc. etc. Broadly we
 may say that they may be entrusted with the performance of civic duties
and functions which would. otherwise be governmental duties and
functions. Finally, they must have the power to raise funds for the
furtherance of their activities and the fulfilment of their
projects by levying taxes, rates, charges, or fees. This may be in
addition to moneys provided by government or obtained by borrowing or
otherwise. What is essential is that control or management of the fund
must vest in the authority.”

E. other authorities within the territory of India or under the control of the
Government of India:
- In the nature of a residuary clause
- On appeals to remove the same from the text, Ambedkar insisted on retaining it
so that fundamental rights could be claimed against anybody or any authority
exercising control over the people.
- He stated:
“...the word "authority" means - upon every authority which has got either the
power to make laws or the power to have discretion vested in it. Therefore, it is
quite clear that if the Fundamental Rights are to be clear, then they must be
binding not only upon the Central Government, they must not only be binding
upon the Provincial Government, they must not only be binding upon the
Governments established in the Indian States, they must also be binding upon
District Local Boards, Municipalities, even village panchayats and taluk boards,
in fact, every authority which has been created bylaw and which has got certain
power to make laws, to make rules, or make by-laws.”(See, CAD on November 25,
1948)
- For almost the first decade and a half, no Supreme Court judgment was available
on the interpretation of ‘other authorities’.
Judgment 1: The case that initially held the ground on the point was
University of Madras v. Shantha Bai, AIR 1954 Mad 67. (2 judges)
- the words “local or other authority” must be construed ejusdem generis with
Government or Legislature.
- Ejusdem generis: (rule of noscitur a sociis: meaning of ambiguous words
shall be gathered by considering the words with which it is associated in a
context) - Where general words follow the enumeration of a particular class of
person or things, the general words will be construed as applicable only to those
persons or things that belong to the same class.
- This extract is taken from Amar Chandra Chakraborty v. Collector of Excise,
Govt. of Tripura, (1972) 2 SCC 442 at page 447
9...The ejusdem generis rule strives to reconcile the incompatibility
between specific and general words. This doctrine applies when (i) the
statute contains an enumeration of specific words; (ii) the subjects of the
enumeration constitute a class or category; (iii) that class or category is
not exhausted by the enumeration; (iv) the general term follows the
enumeration and (v) there is no indication of a different legislative intent.
In the present case it is not easy to construe the various clauses of Section
42 as constituting one category or class. But that apart, the very language
of the two sections and the objects intended respectively to be achieved by
them also negative any intention of the legislature to attract the rule of
ejusdem generis.
- According to the Bench in Shantha Bai, the authorities mentioned in Art 12
shared a common genus - all possessed governmental power or exercised
sovereign power or functions
- The University of Madras was an autonomous institution; it was not charged with
any government function; even its function to promote education was not read as
a sovereign function; although it received financial contributions from the local
government, it was authorised to raise its own funds; therefore, it was a
state-aided institution, but was not maintained by the State.
- Hence, the court held that the University of Madras did not fall in the meaning of
‘other authorities’ and therefore was not State.
Judgment 2: The rule of ejusdem generis was overruled in Rajasthan
State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857. (5
judges)
- Overruling Shantha Bai: This extract is taken from Rajasthan State Electricity
Board v. Mohan Lal, (1967) 3 SCR 377 : AIR 1967 SC 1857 : (1968) 1 LLJ 257
4. In our opinion, the High Courts fell into an error in applying the
principle of ejusdem generis when interpreting the expression “other
authorities” in Article 12 of the Constitution, as they overlooked the basic
principle of interpretation that, to invoke the application of ejusdem
generis rule, there must be a distinct genus or category running through
the bodies already named. Craies on, Statute Law summarises the
principle as follows:

“The ejusdem generis rule is one to be applied with caution and not
pushed too far…. To invoke the application of the ejusdem generis
rule there must be a distinct genus or category. The specific words
must apply not to different objects of a widely differing character
but to something which can be called a class or kind of objects.
Where this is lacking, the rule cannot apply, but the mention of a
single species does not constitute a genus [Craies on Statute Law,
6th Edn, p 181] .”...In Article 12 of the Constitution, the bodies
specifically named are the Executive Governments of the Union and
the States, the Legislatures of the Union and the States, and local
authorities. We are unable to find any common genus running
through these named bodies, nor can these bodies be placed in one
single category on any rational basis. The doctrine of ejusdem
generis could not, therefore, be applied to the interpretation of the
expression “other authorities” in this article.
- Construing “other authorities”: This extract is taken from Rajasthan State
Electricity Board v. Mohan Lal, (1967) 3 SCR 377 : AIR 1967 SC 1857 : (1968) 1
LLJ 257
6....the expression “other authorities” in Article 12 will include
all constitutional or statutory authorities on whom powers are
conferred by law. It is not at all material that some of the powers
conferred may be for the purpose of carrying on commercial activities.
Under the Constitution, the State is itself envisaged as having the right to
carry on trade or business as mentioned in Article 19(1)(g). In Part IV, the
State has been given the same meaning as in Article 12 and one of the
Directive Principles laid down in Article 46 is that the State shall promote
with special care the educational and economic interests of the weaker
sections of the people. The State, as defined in Article 12, is thus
comprehended to include bodies created for the purpose of promoting the
educational and economic interests of the people. The State, as constituted
by our Constitution, is further specifically empowered under Article 298 to
carry on any trade or business. The circumstance that the Board under the
Electricity Supply Act is required to carry on some activities of the nature
of trade or commerce does not, therefore, give any indication that the
Board must be excluded from the scope of the word “State” as used in
Article 12. On the other hand, there are provisions in the
Electricity Supply Act which clearly show that the powers
conferred on the Board include power to give directions, the
disobedience of which is punishable as a criminal offence. In
these circumstances, we do not consider it at all necessary to examine the
cases cited by Mr Desai to urge before us that the Board cannot be held to
be an agent or instrument of the Government. The Board was clearly an
authority to which the provisions of Part III of the Constitution were
applicable.
Judgment 3: Sukhdev v. Bhagatram, AIR 1975 SC 1331 (5 judges)
- Employees of 3 statutory corporations - LIC, ONGC and Indian Finance
Corporation - complained that they had been removed from service in
contravention of the regulations that governed their service conditions. They also
claimed protection of their rights under Art 14 and 16 against the Corporation.
- By a majority of 4 -1 (Alagiriswami J. dissenting), the court held that the
statutory corporations were State.
- K K Mathew, J.
This extract is taken from Sukhdev Singh v. Bhagatram Sardar Singh
Raghuvanshi, (1975) 1 SCC 421 : 1975 SCC (L&S) 101

80. The concept of State has undergone drastic changes in recent years. Today
State cannot be conceived of simply as a coercive machinery wielding the
thunderbolt of authority. It has to be viewed mainly as a service corporation...

85. The tasks of Government multiplied with the advent of the welfare State and
consequently, the framework of civil service administration became increasingly
insufficient for handling the new tasks which were often of a specialised and
highly technical character. At the same time, “bureaucracy” came under a cloud.
The distrust of Government by civil service, justified or not, was a powerful factor
in the development of a policy of public administration through separate
corporations which would operate largely according to business principles and be
separately accountable.

90. The Constitution was framed on the theory that limitation should exist on the
exercise of power by the State. The assumption was that the State alone was
competent to wield power. But the essential problem of liberty and equality is one
of freedom from arbitrary restriction and discrimination whenever and however
imposed. The Constitution, therefore, should, wherever possible, be so construed
as to apply to arbitrary application of power against individuals by centres of
power. The emerging principle appears to be that a public corporation being a
creation of the State is subject to the constitutional limitation as the State itself.
The pre-conditions of this are two, namely, that the corporation is created by
State, and, the existence of power in the corporation to invade the constitutional
right of individual.

91. ...Today, probably the giant corporations, the labour unions, trade
associations and other powerful organisations have taken the substance of
sovereignty from the State...The growing power of the industrial giants, of the
labour unions and of certain other organized groups, compels a reassessment of
the relation between group power and the modern State on the one hand and the
freedom of the individual on the other. The corporate organisations of business
and labour have long ceased to be private phenomena. That they have a direct
and decisive impact on the social, economic and political life of the nation is no
longer a matter of argument. It is an undeniable fact of daily experience. The
challenge to the contemporary lawyer is to translate the social transformation of
these organisations from private associations to public organisms into legal terms
In attempting to do so, we have to recognise that both business and labour
currently exercise vast powers. First, they have power over the millions of men
and women whose lives they largely control as employees or as members. Second,
they exercise power more indirectly, though not less powerfully, over the
unorganized citizens whose lives they largely control through standardized terms
of contract, through price policy, through the tempo of production and the terms
and conditions of labour. Last, they exercise control over the organized
community, represented by the organs of State, in a multitude of ways; direct
lobby pressures, control over election and policies of the elected representatives
of the peoples and far-reaching control over the mass media of communication.
In this sense “government” or “law-making” by private groups is today an
irreversible fact [ See “Corporate Power, Government by Private Groups and the
Law”, (57 Columbia Law Rev 156 at 156, 176-77)] .

92. Generally speaking, large corporations have power and this power does not
merely come from the statutes creating them. They acquire power because they
produce goods or services upon which the community comes to rely. The
methods by which these corporations produce and the distribution made in the
course of their production by way of wages, dividends and interest, as also the
profits withheld and used for further capital progress and the manner in which
and the conditions under which they employ their workmen and staff are vital
both to the lives of many people and to the continued supply line of the country.
Certain imperatives follow from this. Both big business and big labour unions
exercise much quasi-public authority. The problem posed by the big corporation
is the protection of the individual rights of the employees. Suggestions are being
made that the corporate organisations of big business and labour are no longer
private phenomena; that they are public organisms and that constitutional and
common law restrictions imposed upon State agencies must be imposed upon
them.

93. The governing power wherever located must be subject to the fundamental
constitutional limitations. The need to subject the power centres to the control of
Constitution requires an expansion of the concept of State action.

96. Does any amount of State help, however inconsequential, make an act
something more than an individual act? Suppose, a privately owned and
managed operation receives direct financial aid from the State, is an act of such
an agency an act of State? ...it may be stated generally that State financial aid
alone does not render the institution receiving such aid a State agency. Financial
aid plus some additional factor might lead to a different conclusion. A mere
finding of State control also is not determinative of the question, since a State has
considerable measure of control under its police power over all types of business
operations. It is not possible to assume that the panoply of law and authority of a
State under which people carry on ordinary business, or their private affairs or
own property, each enjoying equality in terms of legal capacity would be
extraordinary assistance. A finding of State financial support plus an
unusual degree of control over the management and policies might
lead one to characterise an operation as State action.
97. Another factor which might be considered is whether the
operation is an important public function. The combination of State
aid and the furnishing of an important public service may result in a
conclusion that the operation should be classified as a State agency. If
a given function is of such public importance and so closely related to
governmental functions as to be classified as a governmental agency,
then even the presence or absence of State financial aid might be
irrelevant in making a finding of State action. If the function does not fall
within such a description, then mere addition of State money would not influence
the conclusion.

98. The State may aid a private operation in various ways other than by direct
financial assistance. It may give the organization the power of eminent domain, it
may grant tax exemptions, or it may give it a monopolistic status for certain
purposes. All these are relevant in making an assessment whether the operation
in private or savours of State action [ See generally : “The Meaning of State
Action”, LX Columbia Law Rev 1083] .

109. The relevant provisions of the Life Insurance Corporation Act have been very
clearly analysed in the judgment of my Lord the Chief Justice and it is
unnecessary to repeat them. It is clear from those provisions that the Central
Government has contributed the original capital of the Corporation,
that part of the profit of the Corporation goes to that Government,
that the Central Government exercises control over the policy of the
Corporation, that the Corporation carries on a business having great
public importance and that it enjoys a monopoly in the business. I
would draw the same conclusions from the relevant provisions of the Industrial
Finance Corporation Act which have also been referred to in the aforesaid
judgment. In these circumstances, I think, these corporations are agencies
or instrumentalities of the “State” and are, therefore, “State” within
the meaning of Article 12. The fact that these corporations have independent
personalities in the eye of law does not mean that they are not subject to the
control of government or that they are not instrumentalities of the Government.
These corporations are instrumentalities or agencies of the State for
carrying on businesses which otherwise would have been run by the
State departmentally. If the State had chosen to carry on these
businesses through the medium of government departments, there
would have been no question that actions of these departments
would be “State actions”. Why then should actions of these
corporations be not State actions?

Also see, Sabhajit Tewary v. Union of India, (1975) 1 SCC 485

(5 judges)
The Court held that CSIR (Council of Scientific and Industrial Research), a
society registered under the Societies Registration Act is not State. (See,
paragraphs 4 and 5 of the judgment)
Judgment 4: R D Shetty v. International Airports Authority of
India, (1979) 3 SCC 489 (3 judges)

This extract is taken from Ramana Dayaram Shetty v. International Airport

Authority of India, (1979) 3 SCC 489 at page 510

19...there are several factors which may have to be considered in

determining whether a corporation is an agency or instrumentality
of Government. We have referred to some of these factors and they may be
summarised as under:
- whether there is any financial assistance given by the State, and if so, what
is the magnitude of such assistance,
- whether there is any other form of assistance, given by the State, and if so,
whether it is of the usual kind or it is extraordinary,
- whether there is any control of the management and policies of the
corporation by the State and what is the nature and extent of such control,
- whether the corporation enjoys State conferred or State protected
monopoly status and
- whether the functions carried out by the corporation are public functions
closely related to governmental functions.
This particularisation of relevant factors is however not exhaustive
and by its very nature it cannot be, because with increasing assumption of new
tasks, growing complexities of management and administration and the necessity
of continuing adjustment in relations between the corporation and Government
calling for flexibility, adaptability and innovative skills, it is not possible to make
an exhaustive enumeration of the tests which would invariably and in all cases
provide an unfailing answer to the question whether a corporation is
governmental instrumentality or agency.” Moreover even amongst these factors
which we have described, no one single factor will yield a satisfactory
answer to the question and the Court will have to consider the
cumulative effect of these various factors and arrive at its decision
on the basis of a particularised inquiry into the facts and
circumstances of each case. “The dispositive question in any State action
case”, as pointed out by Douglas, J., in Jackson v. Metropolitan Edison Company
“is not whether any single fact or relationship presents a sufficient degree of State
involvement, but rather whether the aggregate of all relevant factors compels a
finding of State responsibility”. It is not enough to examine seriatim each
of the factors upon which a corporation is claimed to be an
instrumentality or agency of Government and to dismiss each
individually as being insufficient to support a finding of that effect.
It is the aggregate or cumulative effect of all the relevant factors that
is controlling.

This extract is taken from Ramana Dayaram Shetty v. International Airport

Authority of India, (1979) 3 SCC 489 at page 516

27. ...we would, for reasons already discussed, prefer to adopt the test of
Governmental instrumentality or agency as one more test and
perhaps a more satisfactory one for determining whether a
statutory corporation, body or other authority falls within the
definition of “State”. If a statutory corporation, body or other
authority is an instrumentality or agency of the Government, it
would be an “authority” and therefore “State” within the meaning of
that expression in Article 12.

This extract is taken from Ramana Dayaram Shetty v. International Airport

Authority of India, (1979) 3 SCC 489 at page 521

33. It will be seen from these provisions that there are certain features of
Respondent 1 which are eloquent and throw considerable light on the true nature
of Respondent 1.
- the chairman and members of Respondent 1 are all persons nominated by
the Central Government and the Central Government has also the power
to terminate their appointment as also to remove them in certain specified
circumstances.
- Central Government is also vested with the power to take away the
management of any airport from Respondent 1 and to entrust it to any
other person or authority and for certain specified reasons, the Central
Government can also supersede Respondent 1.
- Central Government has also to give directions in writing from time to
time on questions of policy and these directions are declared binding on
Respondent 1.
- Respondent 1 has no share capital but the capital needed by it for carrying
out its functions is provided wholly by the Central Government.
- The balance of the net profit made by Respondent 1 after making provision
for various charges, such as reserve funds, bad and doubtful debts,
depreciation in assets etc. does not remain with Respondent 1 and is
required to be paid over to the Central Government.
- Respondent 1 is also required to submit to the Central Government for its
approval a statement of the programme of its activities as also the financial
estimate and it must follow as a necessary corollary that Respondent 1 can
carry out only such activities and incur only such expenditure as is
approved by the Central Government.
- The audited accounts of Respondent 1 together with the audit report have
to be forwarded to the Central Government and they are required to be
laid before both Houses of Parliament.
- So far as the functions of Respondent 1 are concerned, the entire
department of the Central Government relating to the administration of
airports and air navigation services together with its properties and assets,
debts, obligations and liabilities, contracts, causes of action and pending
litigation is transferred to Respondent 1 and Respondent 1 is charged with
carrying out the same functions which were, until the appointed date,
being carried out by the Central Government.
 - The employees and officers of Respondent 1 are also deemed to be public
servants and Respondent 1 as well as its members, officers and employees
are given immunity for anything which is in good faith done or intended to
be done in pursuance of the Act or any rule or regulation made under it.
- Respondent 1 is also given power to frame Regulations and to provide that
contravention of certain specified Regulations shall entail penal
consequence.
These provisions clearly show that every test discussed above is satisfied in the
case of Respondent 1 and they leave no doubt that Respondent 1 is an
instrumentality or agency of the Central Government and falls within the
definition of “State” both on the narrow view taken by the majority in Sukhdev v.
Bhagatram as also on the broader view of Mathew, J., adopted by us.
Judgment 5: Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC
487 (5 judges)

9. The tests for determining as to when a corporation can be said to be an

instrumentality or agency of Government may now be culled out from the
judgment in the International Airport Authority case [(1979) 3 SCC 489] .
These tests are not conclusive or clinching, but they are merely indicative indicia
which have to be used with care and caution, because while stressing the necessity
of a wide meaning to be placed on the expression “other authorities”, it must be realised
that it should not be stretched so far as to bring in every autonomous body which has
some nexus with the Government within the sweep of the expression. A wide
enlargement of the meaning must be tempered by a wise limitation. We may summarise
the relevant tests gathered from the decision in the International Airport Authority case
[(1979) 3 SCC 489] as follows:

“(1) One thing is clear that if the entire share capital of the corporation is held by
Government, it would go a long way towards indicating that the corporation is an
instrumentality or agency of Government. (SCC p. 507, para 14)

(2) 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. (SCC p. 508, para 15)

(3) It may also be a relevant factor ... whether the corporation enjoys monopoly status
which is State conferred or State protected. (SCC p. 508, para 15)

(4) Existence of deep and pervasive State control may afford an indication that the
corporation is a State agency or instrumentality. (SCC p. 508, para 15)
(5) If the functions of the corporation are of public importance and closely related to
Governmental functions, it would be a relevant factor in classifying the corporation as
an instrumentality or agency of Government. (SCC p. 509, para 16)

(6) ‘Specifically, if a department of Government is transferred to a corporation, it would

be a strong factor supportive of this inference’ of the corporation being an
instrumentality or agency of Government.” (SCC p. 510, para 18)

If on a consideration of these relevant factors it is found that the corporation is an

instrumentality or agency of Government, it would, as pointed out in the International
Airport Authority case [(1979) 3 SCC 489] , be an “authority” and, therefore, ‘State’
within the meaning of the expression in Article 12.

11. We may point out that it is immaterial for this purpose whether the
corporation is created by a statute or under a statute. The test is whether it
is an instrumentality or agency of the Government and not as to how it is
created. The inquiry has to be not as to how the juristic person is born but
why it has been brought into existence. The corporation may be a statutory
corporation created by a statute or it may be a government Company or a Company
formed under the Companies Act, 1956 or it may be a society registered under the
Societies. Registration Act, 1860 or any other similar statute. Whatever be its
genetical origin, it would be an “authority” within the meaning of Article 12
if it is an instrumentality or agency of the Government and that would have
to be decided on a proper assessment of the facts in the light of the relevant
factors. The concept of instrumentality or agency of the Government is not limited to a
corporation created by a statute but is equally applicable to a Company or society and in
a given case it would have to be decided, on a consideration of the relevant factors,
whether the Company or society is an instrumentality or agency of the Government so
as to come within the meaning of the expression “authority” in Article 12.
12. It is also necessary to add that merely because a juristic entity may be an “authority”
and therefore “State” within the meaning of Article 12, it may not be elevated to the
position of “State” for the purpose of Articles 309, 310 and 311 which find a place in Part
XIV. The definition of “State” in Article 12 which includes an “authority”
within the territory of India or under the control of the Government of
India is limited in its application only to Part III and by virtue of Article 36,
to Part IV: it does not extend to the other provisions of the Constitution and
hence a juristic entity which may be “State” for the purpose of Parts III and
IV would not be so for the purpose of Part XIV or any other provision of the
Constitution. That is why the decisions of this Court in S.L. Aggarwal v. Hindustan
Steel Ltd. [(1970) 1 SCC 177 : (1970) 3 SCR 363] and other cases involving the
applicability of Article 311 have no relevance to the issue before us.
- Sabhajit Tewari considered: not overruled
Judgment 6: Som Prakash Rekhi v. Union of India, (1981) 1 SCC
449 (3 judges)
28. Sometimes the test is formulated, over-simplified fashion, by asking whether the
corporation is formed by a statute or under a statute. The true test is functional. Not
how the legal person is born but why it is created. Nay more.

- Sabhajit Tewari considered - not overruled

Judgment 7: Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology, (2002) 5 SCC 111 (7 judges)
- 5: 2 majority (Lahoti and Raju, JJ. dissenting)
- Overruled Sabhajt Tewari
- CSIR was held to be State under Art 12
- The Court assessed CSIR according to the R D Shetty, Ajay Hasia and Rekhi
judgments by looking at its formation, objects and functions, management and
control, financial aid, etc.
40. ...The question in each case would be - whether in the light of the
cumulative facts as established, the body is financiallyunctionally and
administratively dominated by or under the control of the
Government. Such control must be particular to the body in question
and must be pervasive. If this is found then the body is a State within
Article 12. On the other hand, when the control is merely regulatory
whether under statute or otherwise, it would not serve to make the
body a State.
Judgment 8: Zee Telefilms v. Union of India, (2005) 4 SCC 649
- BCCI not ‘the State’ under Article 12 (3:2 majority (Sinha and Variava
dissenting))

MAJORITY: (Santosh Hegde, B P Singh, H K Sema, JJ.)

23. The facts established in this case show the following:

1. The 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 not 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.

24. To these facts if we apply the principles laid down by the seven-Judge Bench
in Pradeep Kumar Biswas [(2002) 5 SCC 111 : 2002 SCC (L&S) 633] it would be
clear that the facts established do not cumulatively show that the Board is
financially, functionally or 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.
25. Assuming for argument's sake that some of the functions do partake the
nature of public duties or State actions, they being in a very limited area of the
activities of the Board, would not fall within the parameters laid down by this
Court in Pradeep Kumar Biswas case [(2002) 5 SCC 111 : 2002 SCC (L&S) 633] .
Even otherwise assuming that there is some element of public duty involved in
the discharge of the Board's functions, even then, as per the judgment of this
Court in Pradeep Kumar Biswas [(2002) 5 SCC 111 : 2002 SCC (L&S) 633] , that
by itself would not suffice for bringing the Board within the net of “other
authorities” for the purpose of Article 12.

30. 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
and the same according to this Court in Pradeep Kumar Biswas case [(2002) 5
SCC 111 : 2002 SCC (L&S) 633] is not a factor indicating a pervasive State control
of the Board.

31. Be that as it may, it cannot be denied that the Board does discharge some
duties like the selection of an Indian cricket team, controlling the activities of the
players and others involved in the game of cricket. These activities 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. Under the Indian jurisprudence there is always a just remedy for
the violation of a right of a citizen. 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.
Judgment 9: BCCI v. Cricket Association of Bihar, (2015) 3 SCC
251 (2 judges)

33. The majority view (in Zee Telefilms) 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 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
aspects 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 has allowed
the Board to select the national team which is then recognised 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 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 organisation 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.

34. 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 take over
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.

35. Our answer to Question (i), 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.
Judgment 10: Janet Jayepaul v. SRM University, (2015) 16 SCC
530 (2 judges)

29. Applying the aforesaid principle of law to the facts of the case in hand, we are of the
considered view that the Division Bench of the High Court erred in holding that
Respondent 1 is not subjected to the writ jurisdiction of the High Court under Article
226 of the Constitution. In other words, it should have been held that Respondent 1 is
subjected to the writ jurisdiction of the High Court under Article 226 of the
Constitution.

30. This we say for the reasons that firstly, Respondent 1 is engaged in imparting
education in higher studies to students at large. Secondly, it is discharging “public
function” by way of imparting education. Thirdly, it is notified as a “Deemed University”
by the Central Government under Section 3 of the UGC Act. Fourthly, being a “Deemed
University”, all the provisions of the UGC Act are made applicable to Respondent 1,
which inter alia provides for effective discharge of the public function, namely,
education for the benefit of the public. Fifthly, once Respondent 1 is declared as
“Deemed University” whose all functions and activities are governed by the UGC Act,
alike other universities then it is an “authority” within the meaning of Article 12 of the
Constitution. Lastly, once it is held to be an “authority” as provided in Article 12 then as
a necessary consequence, it becomes amenable to writ jurisdiction of the High Court
under Article 226 of the Constitution.

35. Before parting, we consider it apposite to state that we have not examined the
controversy raised by the appellant in her writ petition on merits and confined our
examination to the question whether the writ petition against Respondent 1 was
maintainable or not.

36. In view of the foregoing discussion, the appeal succeeds and is allowed. The
impugned order [S.R.M. University v. Janet Jeyapaul, 2013 SCC OnLine Mad 3887] is
set aside. Writ Appeal No. 932 of 2013 out of which this appeal arises is restored to its
original number. The Division Bench is requested to decide the appeal expeditiously on
merits in accordance with law without being influenced by any of our observations.
ALSO SEE:
This extract is taken from Bodhisattwa Gautam v. Subhra Chakraborty,
(1996) 1 SCC 490 : 1996 SCC (Cri) 133 at page 499
6. This Court, as the highest Court of the country, has a variety of jurisdiction. Under
Article 32 of the Constitution, it has the jurisdiction to enforce the Fundamental Rights
guaranteed by the Constitution by issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. Fundamental Rights can be
enforced even against private bodies and individuals. Even the right to approach the
Supreme Court for the enforcement of the Fundamental Rights under Article 32 itself is
a Fundamental Right. The jurisdiction enjoyed by this Court under Article 32 is very
wide as this Court, while considering a petition for the enforcement of any of the
Fundamental Rights guaranteed in Part III of the Constitution, can declare an Act to be
ultra vires or beyond the competence of the legislature and has also the power to award
compensation for the violation of the Fundamental Rights (See: Rudul Sah v. State of
Bihar [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : AIR 1983 SC 1086] ; Peoples' Union for
Democratic Rights v. Police Commr., Delhi Police HQs. [(1989) 4 SCC 730 : 1990 SCC
(Cri) 75]

This extract is taken from M.C. Mehta v. Union of India (Shriram - Oleum
Gas), (1987) 1 SCC 395 : 1987 SCC (L&S) 37 at page 416
28. Shriram is required to obtain a licence under the Factories Act and is subject to the
directions and orders of the authorities under the Act. It is also required to obtain a
licence for its manufacturing activities from the Municipal authorities under the Delhi
Municipal Act, 1957. It is subject to extensive environment regulation under the Water
(Prevention and Control of Pollution) Act, 1974 and as the factory is situated in an air
pollution control area, it is also subject to the regulation of the Air (Prevention and
Control of Pollution) Act, 1981. It is true that control is not exercised by the Government
in relation to the internal management policies of the company. However, the control is
exercised on all such activities of Shriram which can jeopardize public interest. This
functional control is of special significance as it is the potentiality of the fertilizer
industry to adversely affect the health and safety of the community and its being
impregnated with public interest which perhaps dictated the policy decision of the
Government to ultimately operate this industry exclusively and invited functional
control. Along with this extensive functional control, we find that Shriram also receives
sizeable assistance in the shape of loans and overdrafts running into several crores of
rupees from the Government through various agencies. Moreover, Shriram is engaged in
the manufacture of caustic soda, chlorine etc. Its various units are set up in a single
complex surrounded by thickly populated colonies. Chlorine gas is admittedly
dangerous to life and health. If the gas escapes either from the storage tank or from the
filled cylinders or from any other point in the course of production, the health and
well-being of the people living in the vicinity can be seriously affected. Thus Shriram is
engaged in an activity which has the potential to invade the right to life of large sections
of people. The question is whether these factors are cumulatively sufficient to bring
Shriram within the ambit of Article 12. Prima facie it is arguable that when the State's
power as economic agent, economic entrepreneur and allocator of economic benefits is
subject to the limitations of fundamental rights. (Vide Eurasian Equipment and
Chemicals Ltd. v. State of W.B. [(1975) 1 SCC 70 : AIR 1975 SC 266 : (1975) 2 SCR 674] ;
Rashbihari Panda v. State of Orissa [(1969) 1 SCC 414 : (1969) 3 SCR 374] ; R.D. Shetty
v. International Airports Authority [(1979) 3 SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR
1014] and Kasturi Lal Reddy v. State of J&K [(1980) 4 SCC 1 : AIR 1980 SC 1992 : (1980)
3 SCR 1338] ), why should a private corporation under the functional control of the
State engaged in an activity which is hazardous to the health and safety of the
community and is imbued with public interest and which the State ultimately proposes
to exclusively run under its industrial policy, not be subject to the same limitations. But
we do not propose to decide this question and make any definite pronouncement upon it
for reasons which we shall point out later in the course of this judgment.

This extract is taken from M.C. Mehta v. Union of India (Shriram - Oleum
Gas), (1987) 1 SCC 395 : 1987 SCC (L&S) 37 at page 417
29. We were, during the course of arguments, addressed at great length by counsel on
both sides on the American doctrine of State action. The learned counsel elaborately
traced the evolution of this doctrine in its parent country. We are aware that in America
since the Fourteenth Amendment is available only against the State, the courts in order
to thwart racial discrimination by private parties, devised the theory of State action
under which it was held that wherever private activity was aided, facilitated or
supported by the State in a significant measure, such activity took the colour of State
action and was subject to the constitutional limitations of the Fourteenth Amendment.
This historical context in which the doctrine of State action evolved in the United States
is irrelevant for our purpose especially since we have Article 15(2) in our Constitution.
But it is the principle behind the doctrine of State aid, control and regulation so
impregnating a private activity as to give it the colour of State action that is of interest to
us and that also to the limited extent to which it can be Indianized and harmoniously
blended with our constitutional jurisprudence. That we in no way consider ourselves
bound by American exposition of constitutional law is well demonstrated by the fact that
in R.D. Shetty [(1979) 3 SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR 1014] this Court
preferred the minority opinion of Douglas, J. in Jackson v. Metropolitan Edison
Company [42 L Ed (2d) 477] as against the majority opinion of Rehnquist, J. And again
in Air India v. Nergesh Meerza [(1981) 4 SCC 335 : 1981 SCC (L&S) 599 : (1982) 1 SCR
438] this Court whilst preferring the minority view in General Electric Company v.
Martha V. Gilbert [50 L Ed (2d) 343] said that the provisions of the American
Constitution cannot always be applied to Indian conditions or to the provisions of our
Constitution and whilst some of the principles adumbrated by the American decisions
may provide a useful guide, close adherence to those principles while applying them to
the provisions of our Constitution is not to be favoured, because the social conditions in
our country are different.

This extract is taken from M.C. Mehta v. Union of India (Shriram - Oleum
Gas), (1987) 1 SCC 395 : 1987 SCC (L&S) 37 at page 418
30. Before we part with this topic, we may point out that this Court has throughout the
last few years expanded the horizon of Article 12 primarily to inject respect for human
rights and social conscience in our corporate structure. The purpose of expansion has
not been to destroy the raison d'etre of creating corporations but to advance the human
rights jurisprudence. Prima facie we are not inclined to accept the apprehensions of
learned counsel for Shriram as well founded when he says that our including within the
ambit of Article 12 and thus subjecting to the discipline of Article 21, those private
corporations whose activities have the potential of affecting the life and health of the
people, would deal a death blow to the policy of encouraging and permitting private
entrepreneurial activity. Whenever a new advance is made in the field of human rights,
apprehension is always expressed by the status quoists that it will create enormous
difficulties in the way of smooth functioning of the system and affect its stability. Similar
apprehension was voiced when this Court in R.D. Shetty case [(1979) 3 SCC 489 : AIR
1979 SC 1628 : (1979) 3 SCR 1014] brought public sector corporations within the scope
and ambit of Article 12 and subjected them to the discipline of fundamental rights. Such
apprehension expressed by those who may be affected by any new and innovative
expansion of human rights need not deter the court from widening the scope of human
rights and expanding their reach and ambit, if otherwise it is possible to do so without
doing violence to the language of the constitutional provision. It is through creative
interpretation and bold innovation that the human rights jurisprudence has been
developed in our country to a remarkable extent and this forward march of the human
rights movement cannot be allowed to be halted by unfounded apprehensions expressed
by status quoists. But we do not propose to decide finally at the present stage whether a
private corporation like Shriram would fall within the scope and ambit of Article 12,
because we have not had sufficient time to consider and reflect on this question in
depth. The hearing of this case before us concluded only on December 15, 1986 and we
are called upon to deliver our judgment within a period of four days, on December 19,
1986. We are therefore of the view that this is not a question on which we must make
any definite pronouncement at this stage. But we would leave it for a proper and
detailed consideration at a later stage if it becomes necessary to do so.