ABSTRACT

This article delves into examining the complex subject and the wide ambit of the term "other
authorities" as definedmentioned in Article 12 of the Indian Constitution1. The Constitution of
India confers fundamental rights to both citizens and other individuals, and understanding the
extent of "other authorities" is crucial in determining the applicability of these rights. This
abstract offers a concise overview of the article's contents, emphasizing the importance of
clarifying the concept of "other authorities" within the constitutional framework. The article aims
to explore the historical background and the purpose behind defining "other authorities under the
State" and examines various interpretations of the same. In addition, the article demystifies
clarifies the ambit of "other authority" by shedding light on its relationship with the judiciary and
autonomous institutions. The authors also presentI have also mentioned a variety of tests to
which help determine which bodies can be classified as "other authorities." Their findings are
synthesized in the conclusion, which highlights the implications of their thisresearch on
fundamental rights. By elucidating the concept of "other authorities" in Article 12, tThis
comprehensive project contributes to fosteringpresents a clearer understanding of this crucial
aspect of the Indian Constitution. It presents a valuable resource for scholars, legal practitioners,
and anyone interested in the preservation of constitutional principles and the cause of justice..

INTRODUCTION

While examining the ambit of ‘state’ under Article 12 of the Cconstitution of India, one very
pertinent question which arises regarding the its interpretation is of Article 12 is the construal of
the term ‘other authorities’. ’ so that one can know as to what are the entities against which the
fundamental rights can be claimed. This crucial question can have both broad and narrow
perspective, and the acceptance of one view depends on how one understands the scope of the
fundamental rights. The Indian Constitution has adopted the practice of including Fundamental
Rights in its framework, inspired by the United States of America. The US Constitution2 has
explicitly defined its legislative and executive powers in two distinct Articles, which makes it
easier to understand their interplay and relationship. However, the Indian Constitution is a
1
The Constitution of India, 1950, Art. 12.
2
The Constitution of United States of America, 1789.

1
comprehensive and detailed document. As such, the legislative and executive powers are
dispersed throughout its various sections, making it challenging to identify them. The Indian
Constitution's extensive nature requires a thorough examination and analysis to understand the
scope and limitations of the legislative and executive powers. The founding fathers of our
Constitution demonstrated their willingness to confer legally enforceable fundamental rights by
enacting thePart-III's Fundamental Rights under Part III. However, they needed to determine
against whom these fundamental rights should be enforced. Generally, these rights are enforced
against "the State," but the definition of "the State" goes beyond the typical understanding and is
widely defined under Article 12 of the Indian Constitution.

HISTORICAL BACKGROUND

Article 12 was presented by the Draft Constitution as article 7 yet some other time when Dr. B.R.
Ambedkar clarified the extent of this Aarticle and its importance for each resident whose rights
could be encroached by any authority. The definition has been used in order to avoid the
inconsistency which existed under the Draft wherein the Indian State and Province was treated in
a separate footing.3

The purpose of defining the term "state" was to ensure that fundamental rights were effectively
enforced. Article 12 lists the authorities against whom fundamental rights can be claimed and
obligates them to uphold and respect the fundamental rights of the people. During the
Constituent Assembly, there were differing opinions on the phrasing of Article 12 because of its
broad scope.

However, Dr. B.R. Ambedkar insisted on keeping it so that fundamental rights could be claimed
against any authority that exercised power over the people. Ambedkar defined "authority" to
include anyone with the power to make laws or anyone vested with discretionary power.
Additionally, the words were added in a way that allows lawmakers to interpret the term with the
changing needs of society. This reflects the framers' desire to create a “"living document”" that
can withstand the test of time.
3
Ddr. Suman Ssharma, ‘Sstate Bboundary Cchanges in Iindia: Cconstitutional pProvisions and
Cconsequences’, 162 (1995)

2
It should be noted that the definition applies to Part III and, according to Article 36, to Part IV as
well. Being a 'state' authority does not necessarily make its employees civil servants. The term
'local authorities' refers to 'state', but this does not mean they can be classified as State or Central
Government. The reason for this is that there is a distinction between 'state' and 'government.'
Public corporations cannot be deemed as government departments under the state.

NATURE AND SCOPE

The Indian Constitution does not provide an explicit definition of the doctrine of state
action, which is a legal concept used to determine whether an action taken by a government
entity or official can be considered a violation of an individual's constitutional rights.
However, the concept of state action is implied in Article 12 of the Constitution, which
outlines the definition of State for the purpose of Part III. In the beginning, the
interpretation of the term "state" was considered to be complete and limited to the entities
or those that could be interpreted as belonging to the same category as the entities
mentioned in Article 12.

Article 12 enumerates a list of authorities against which fundamental rights can be enforced by
invoking the writ jurisdiction of the Supreme Court and High Court. These authorities include
the Government and Parliament of India, the government and legislatures of each state in India,
as well as local and other authorities within the territory of India and those under the control of
the Government of India.

3
The inclusion of local and other authorities within the definition of State is a crucial aspect of
Article 12, as it expands the scope of protections extended to individuals against potential
violations of their fundamental rights. By invoking the writ jurisdiction of the courts, individuals
can hold these authorities accountable for any actions or decisions that may infringe upon their
constitutional rights.

Article 12 of the Constitution of India clearly defines that the term 'State' encompasses the
Executive branch and the Legislative and the Judiciary branches at both Central and State levels.
The Indian Constitution provides for the enforcement of fundamental rights through the
mechanism of Article 32 and Article 226. These articles empower the Supreme Court and High
Courts, respectively, to issue writs for the enforcement of fundamental rights. The courts have
held on numerous occasions that these provisions are enforceable even against the legislature.

This interpretation was reinforced in the POWERS, PRIVILEGES AND IMMUNITIES OF

STATE LEGISLATURES, RE4 by Justice Gajendragadkar, who observed that Article 12
defines the State as including the legislature of such State. This means that, in appropriate cases,
the High Court can exercise its power under Article 226 to issue writs against the legislature
itself. This expands the reach of constitutional remedies and reinforces the principle of equality
before the law.

In theThrough the seven- judge bench of the PRADEEP KUMAR BISWAS V. INDIAN
INSTITUTE OF CHEMICAL BIOLOGY5, the Hon’ble Supreme Court held that “When the
body is financially, functionally and administratively dominated by or under the control of the
government and such control is particular to the body and is pervasive, then it will be “State”
within Article 12. If the control is merely regulatory, it will not be a State”.

4
POWERS, PRIVILEGES AND IMMUNITIES OF STATE LEGISLATURES, RE, AIR 1965 SC 745.
5
PRADEEP KUMAR BISWAS V. INDIAN INSTITUTE OF CHEMICAL BIOLOGY, (2002) 5 SCC 111.

4
Public Corporations-: The Supreme Court held that Public Corporations and Undertakings fall
within the definition of State, therefore these corporations and undertakings are subject to Part III
of the Constitution. The Law Commission has recommended that Public Sector Undertakings
must be excluded from the purview of Article 12 so as to ensure avoidance of judicial review and
interference by the Courts in the functioning of these Undertakings. However, it was found to be
not a proper measure to be adopted for dealing with the difficulties experienced by PSU in the
matter of award of contracts, rejection of tenders, service matters and the like arising out of the
present applicability of Article 12 to such undertakings.

Registered Socities:- The AJAY HASIA V. KHALID MUJIB SEHRAVARDI6 case

established that certain non-statutory organizations should be considered authorities under
Article 12. For instance, in the case of VIBHU KAPOOR V. COUNCIL OF ISC
EXAMINATIONS7, the Delhi High Court declared the Council for Indian School Certificate
Examinations (CBSE), which is responsible for education and examination, to be deemed as an
authority. Similarly, in SHEELA BARSE V. SECRETARY8, Children Aid Society, a
registered organization with the Chief Minister of Maharashtra as the ex-officio President and
the Minister of Social Welfare as the Vice President was declared to be subject to Article 12.

In TEKRAJ V. UNION OF INDIA9, the Supreme Court has held the Institute of Constitutional
and Parliamentary Studies as not being an ‘authority’ under Article 12. The institute was
receiving grants from the Central Government and has the President of India, Vice-President and
the Prime Minister among its honorary members. The Central Government exercises a good deal
of control over the Institute. But in spite of Government funding and control, the Court has
refused to hold it as an authority with the remark that “ICPS is a case of its type-typical in many
ways and the normal tests may perhaps not properly apply to test its character.”

Subsequently, in the case of SINDHI EDUCATION SOCIETY V. CHIEF SECRETARY,

GOVT. OF NCT OF DELHI10, it was held that a society, organization, or private body cannot
6
AJAY HASIA V. KHALID MUJIB SEHRAVARDI, (1981) 1 SCC 722.
7
VIBHU KAPOOR V. COUNCIL OF ISC EXAMINATIONS, AIR 1985 Del 142.
8
SHEELA BARSE V. SECRETARY, (1987) 3 SCC 50.
9
TEKRAJ V. UNION OF INDIA, AIR 1988 SC 469.
10
SINDHI EDUCATION SOCIETY V. CHIEF SECRETARY, GOVT. OF NCT OF DELHI, (2010) 8 SCC 49.

5
be considered as a part of the State unless the State exerts all three aspects of control - financial,
managerial, and administrative - over it. Therefore, it is necessary for registered societies to be
under extensive state control. The functional test, such as grant-in-aid, does not have a
significant role to play in determining whether a society is under state control.

Nationalized Banks- : Several cases have addressed the question of whether banks are
considered "state" entities. According to various rulings, nationalized banks are considered to be
an instrumentality of the state under Article 12 of the Constitution. In the case of STATE BANK
OF INDIA AND CANARA BANK V. GANESAN11, the madras high court stated that
“nationalized banks are falling within the ambit of the other authority, the right to get salary is a
right to property and the nationalized banks shouldn’t act arbitrarily and illegally withholding the
salary of their employees for the period during which they had worked”.

In the abovementioned case of nationalized banks, the test which is applied is ‘test of control.
The 145th Report of Law Commission of India states that tests are not always comprehensive,
and certain factors may be emphasized over others. However, what matters most is the overall
circumstances that are taken into account.

Government Companies:- In SOM PRAKASH REKHI V. UNION OF INDIA12 wherein for

the first time Supreme Court encountered the question as to whether a Government Company is a
‘State’ or not, and it was held that “Government Company is a ‘State’ under Article 12. For the
application of state agency it is immaterial whether a corporation has been created by or under a
statute. What is essential is that the company must exercise some function of the government and
should be acting on behalf of the government and not on its own behalf”.

The Hon'ble Supreme Court in the judgments of U. P. WAREHOUSING CORPN. V.

VINAY13, and KALRA V. PROJECTS & EQUIPMENT CORPN 14 reformed the position
11
STATE BANK OF INDIA AND CANARA BANK V. GANESAN, (1981) 1 LLJ 64.
12
SOM PRAKASH REKHI V. UNION OF INDIA , AIR 1981 SC 212.
13
U. P. WAREHOUSING CORPN. V. VINAY, AIR 1980 SCC at 845-46.

14
KALRA V. PROJECTS & EQUIPMENT CORPN, AIR 1984 SC 1361 at para. 20.

6
regarding the applicability of Article 311 (2) by the employees and it was held that even though
Article 311 (2) may not be attracted to a government company yet, when a government company
or a public corporation constitutes an agency or instrumentality of the State for the purposes of
Article 12 of the Constitution, the principles underlying Article 311 (2) should be applicable to
employees of government companies as for principles of natural justice read with Article 12.

WHETHER OTHER AUTHORITIES INCLUDES JUDICIARY

Article 12 of the Constitution does not specifically define ‘judiciary’. Hence, often a debate
arises regarding the status of the Judiciary in relation to Part III of the Constitution. If it was
taken into the head of ‘State’, then as per the article 12, it would be by the obligation that the
fundamental rights of the citizens should not be violated. It is undisputedly well settled that the
judiciary while exercising administrative powers is prone to being challenged as violative of
fundamental rights, if supported by facts but the position of it while adjudicating legal disputes
still remains unsettled. Therefore when the court performs non-judicial functions it may fall
within the ambit of ‘state’ while when it performs judicial functions it would be independent
from the scope of ‘state’.

The 9-judge bench of the Hon’ble Supreme Court in the landmark case of NARESH SRIDHAR
MIRAJKAR v. STATE OF MAHARASHTRA held that Iit is a fundamental principle of
justice that the rulings made by competent judges in matters brought before them for
adjudication cannot infringe upon the basic rights of citizens. This is because the sole purpose of
a judge's decision is to resolve the dispute between the parties involved and nothing more.
Therefore, it is not admissible to challenge such a judicial decision under Article 13.
Under the Constitution, the judiciary is responsible for determining the extent of the fundamental
rights that are guaranteed to citizens. Although there may be instances where the courts may
make mistakes while performing this duty, it is important to note that such errors do not equate
to a violation of the fundamental rights themselves. The writ jurisdiction cannot be used against
the court's decision, and the appropriate course of action against judicial decisions is a review or

7
an appeal before the appellate court. If the Supreme Court makes the decision, the aggrieved
party can file a review petition or a curative petition.

In KHODAY DISTILLERIES LIMITED V. REGISTRAR GENERAL, the apex court has

determined that after a final decision is made under Article 136 and that decision is upheld in a
review petition, Article 32 cannot be further utilized to question the legitimacy of the order.
It is pertinent to note that only court decisions cannot be contested on the basis of fundamental
rights violation. However, if a quasi-judicial or administrative body like a tribunal crosses its
jurisdictional boundaries or fails to exercise its jurisdiction, its decision can be challenged on the
grounds of violating the fundamental rights of the affected party. Therefore, the writ jurisdiction
can be invoked to contest the decisions made by tribunals and administrative bodies.

Also, 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 argued that a case can only be reconsidered in specific circumstances such as
when the judicial order was passed without proper authority, when principles of natural justice or
fundamental rights were violated, or when a gross injustice has occurred. It was acknowledged
that a petition under Article 32 could be considered in the rarest of rare cases, even if a review
petition had been denied. 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.

Hon’ble Justice Syed Shah Mohammed Quadri pointed out that Article 32 is the sole means for
enforcing the fundamental rights conferred in Part III of the Constitution. Any judicial order
passed by a superior court during judicial proceedings cannot be deemed a violation of any
fundamental rights. It is important to note that superior courts of justice are not considered State
or other authorities under Article 12 of the Constitution.

8
The Court's decision was remarkable in its unanimity, as it held that individuals who have
already exhausted their options for review under Article 137 of the Constitution may still have a
chance to seek redress in cases of egregious abuse of the Court's process or miscarriage of
justice. This was due to the fact that the Supreme Court's rulings are considered final. The Court
emphasized that in such exceptional cases, the obligation to ensure justice must take precedence
over the need for predictable judgments. Further, if the justice of a case so demands the Court
can exercise curative jurisdiction even after the review application has been rejected and this has
marked the beginning of a new era of 'curative petitions'

Therefore, it is justifiable to exclude the judiciary from the definition of 'state' given that India
has a unified judicial system. The appellate court can review decisions made by lower courts,
ensuring that parties have recourse if they feel aggrieved by a ruling.

WHETHER OTHER AUTHORITIES INCLUDES AUTONOMOUS INSTITUTIONS

Intro……..

In M/S ANDHRA PRADESH HOUSING BOARD V. DEPARTMENT OF IT the question

was whether Andhra Pradesh Housing Board is a government agency or not. In the instant case
the independent character of the Housing Board was upheld and the housing Board was declared
as not an ‘other authority’ because it is functioning as an autonomous body. But in this case the
fact that the Housing Boards are performing an important government function and the element
of public purpose in the respective activity was ignored by the Court. Thus it can be found that
rather than nature of the activity importance is given by the Court to the tests or criteria’s in
determining whether a body fall under the term `State' or not.

In R.D. SHETTY V. THE INTERNATIONAL AIRPORT AUTHORITY, Bhagwati J.

reiterated with approval of Mathew J’s approach in Sukhdev Singh’s Case wherein it was held
that an entity would be treated as an instrumentality of the State, “where a Corporation is wholly
controlled by Government not only in its policy making but also in carrying out the functions
entrusted to it by the law establishing it or by the Charter of its incorporation.” Further, the Court

9
held that a corporation created by statute which is otherwise autonomous in its functioning will
answer to the test laid down in Article 12 when “extensive and unusual financial assistance is
given and the purpose of the Government in giving such assistance coincides with the purpose
for which the corporation is expected to use the assistance and such purpose is of public
character.” The Court also noted that the existence of monopoly, which is either State conferred
or State recognized, may also lead to an inference of “State Action.” Importantly, the Court
hinted at the importance of the functional test and observed that, “the public nature of the
function, if impregnated with governmental character or ‘tied or entwined with Government’ or
fortified by some other additional factor, may render the corporation an instrumentality or
agency of Government.”

In ZEE TELEFILMS & ORS .V. UNION OF INDIA &ORS15, it was contended that taking
into account the broad interpretation of Article 12, Board of Control for Cricket in India (BCCI)
must be held as a State. As per the majority judgment by the ratio of it was held that “BCCI is
an autonomous body and there is little control of government over the functions of it, and such
control is purely regulatory which will not make it a ‘State’ under Article 12”. It was further
contended that though the Board controls the right to profession of cricketers under Article 19
(1) (g) of the Constitution, according to the majority verdict unlike Article 17, 21 etc., Article 19
(1) (g) cannot be claimed against non-state actors16. But despite highlighting this fact, it, was not
accounted for. Thus according to the majority the petitioners has failed to establish the
prerequisite for invoking the enforcement of fundamental right under Article 12 i.e. the violator
should be a State first17.

Taking precedence from its previous ruling in PRADEEP KUMAR BISWAS V. INDIAN
INSTITUTE OF CHEMICAL BIOLOGY, the Supreme Court held that the Board is not
financially, functionally and administratively under the control of the government and so it
cannot be a State under Article 12 and that mere regulatory control by the Government will not
suffice to fulfill the requirements of Article 12 18. It is worth noting that the majority verdict in

15
ZEE TELEFILMS & ORS .V. UNION OF INDIA &ORS, (2005) 4 SCC 649.
16
Id. at para 34
17
Id. at para 28
18
Id. at para 704

10
this case, due to the strong bench, sets a binding precedent for all other Constitutional Benches
consisting of five judges, unless it is overturned by a larger bench. Furthermore, the reach of
fundamental rights through Article 12 of the Constitution cannot be further expanded based on
this judgment. The court also observed that the State is focusing on governance rather than on
business, and neglecting its socio-economic responsibilities. So there is no need to expand the
meaning of Article 12.

TEST TO DETERMINE THE ENTITIES FALLING UNDER “OTHER AUTHORITIES”

The Hon’ble Supreme Court in various cases has laid down few guidelines and tests to determine
the bodies or entities falling under the ambit of “other authorities” under Article 12.

[a.] Test for instrumentality or agency:- Black’s Law Dictionary defines instrumentality as
“a means or agency through which a function of another entity is accomplished, such as a
branch of governing body.” Whereas agency is defined as “fiduciary relationship created
by express or implied contract or by law, in which one party (the agent may act on behalf
of another party (the principal and bind the other party by words or actions”. The apex
court in SUKHDEV SINGH V. BHAGATRAM19 observed that it is not necessary for
the state to provide direct financial aid to the corporation. The state may provide tax
exemptions or other forms of indirect financial assistance to the corporation. Indirect
financial aid will also be a relevant factor while determining whether a corporation is an
instrumentality of the State or not. In this case a more conceptual understanding of
Article 12 was given by Mathew J. in his concurring opinion. He found Article 13 (2) as
a limitation upon Article 12. Borrowing the dictum in Civil Rights case 20 he said that it is
the state action of a particular character that is prohibited individual invasion of
individual rights is not covered under Article 13 (2). Mathew J. was explicit about the
Public Functions test as a test to find out whether a body/authority is an instrumentality
or agency of the state. Though in Sukhdev Singh’s the Court attempted to extend the
meaning of State but could not come to a logical conclusion as to how and when an
authority can be called as other authority under Article 12.
19

20

11
 [b.] Deep and Pervasive Control Test:-

CASE STUDY

[a.] RAJASTHAN STATE ELECTRICITY BOARD V/S MOHANLAL:- The Supreme

Court held that a State Electricity Board, set up by a statute having some commercial
function falls within the meeting of the authority of Article 12. It further observed that the
expression “other authorities” is wide enough to include all authorities created by the
Constitution or statute on whom the powers are conferred by Law. It is not necessary that the
statutory authority should be engaged in performing the governmental or sovereign function.

12
 [b.] AJAY HASIA V. KHALID MUJIB SEHRAVARDI:- It has been held that whether a
statutory body falling within the purview of the expression “other authorities” is to be
considered differently. In the opinion of the minority, the tests laid down, in this case, are
relevant only for the purpose of determining whether an entity is an “instrumentality or
agency of the State”.

[c.] SOM PRAKASH V. UNION OF INDIA:- The Supreme Court held that a Government
company (Bharat Petroleum Corporation) fell within the meaning of the expression ‘the
State’ used in Article 12. The expression ‘other authorities’ will include all constitutional or
statutory authorities on whom powers are conferred for the purpose of promoting economic
activities. It is not only confined to statutory corporations alone but may include a
government company, a registered society, or bodies which have some nexus with the
government. However, the important question that was raised before the Court was whether a
private corporation fell within the ambit of Article 12.

[d.] R.D. SHETTY V/S INTERNATIONAL AIRPORT AUTHORITY OF INDIA:- The

Supreme Court held that for determining whether an authority is 'State' under Article 12, the
test is whether a particular corporation i.e public or private can be said to be instrumentality
or agency of the government or not? Determining it is instrumental for the agency of the
State, the same principles mentioned in Ajay Hasia were laid down in this case also. Hence
Supreme Court held that International Airport Authority is a statutory body, an instrumental
or an agency of the State and comes within the definition of Article 12.

[e.] SAABHAJIT TIWARI V/S UNION OF INDIA:- The Supreme Court ruled that the Indian
Council of Scientific Research, a body registered under the Societies Registration Act, a non-
statutory body, but under the control of the Government of India hence was not a State.
Again the Supreme Court made an obligation in Raman suggesting that a non-statutory body
falls in the purview of Article 12 if it could act as an instrumentality or agency of the
Government the question regarding the status of a non-statutory body was finally decided in
Ajay Hasia, 1987.
[f.]
[g.]

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 CONCLUSION

The definition in Article 12 is only for the purpose of application of the provisions contained in
Part III. Even if a party is not mentioned as ‘State’ under Article 12, in cases, where such a party
has a public duty to perform or where such a party’s acts are supported by the State or public
officials; a writ under Article 226 may lie against it on non-constitutional grounds or grounds of
contravention of some provision of the Constitution outside Part III

14