Unit-I: Fundamental

Rights – I

ARTICLE- 12
Article 12 defines the term “State” : It includes the following: -
1. The Government and Parliament of India
2. The Government and the Legislature of each of the
States
3. All local or other authorities within the territory of
India or under the control of the Government of India.
While initiating a debate on this Article in the Draft Constitution in the
Constituent Assembly, Dr. Ambedkar described the scope of this Article and the
reasons why this Article was placed in the Chapter on fundamental rights as
follows
"The object of the fundamental rights is twofold. First, that every citizen must be
in a position to claim those rights. Secondly, they must be binding upon every
authority - I shall presently explain what 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 by
law and which has got certain power to make laws, to make rules, or make bye-
laws.”
 In the Indian Constitutional scheme almost all of the
fundamental rights are available against the state. The most
problematic expression under Article 12 is “other
authorities” as this expression is not defined in the
Constitution. Thus it is for the courts to interpret this term,
and it is clear that the wider this term is interpreted, the
wider the ambit of fundamental rights would be.
 
 In the University of Madras v. Shanta Bai,1954 the Madras High
Court evolved the principle of ‘ejusdem generis’ i.e. of the like
nature. It means that only those authorities are covered under the
expression ‘other authorities’ which perform governmental or
sovereign functions. Further, it cannot include persons, natural or
juristic, for example, unaided universities. The court interpreted
the definition of “State” in a very restricted sense. The court treated
the definition as exhaustive one, and confined to the authorities or
those which are of like nature.
 In the case of Ujjammabai v. the State of U.P., AIR 1962
the court rejected the above restrictive scope and held
that the ‘ejusdem generis’ rule could not be resorted to
while interpreting ‘other authorities’
 In Rajasthan Electricity Board v. Mohan Lal,1967 the
Supreme Court held that ‘other authorities’ would
include all authorities created by the Constitution or
statute on whom powers are conferred by law. Such
statutory authority need not be engaged in performing
government or sovereign functions. The court
emphasized that it is immaterial that the power
conferred on the body is of a commercial nature or not.
 In Sukhdev v/s Bhagatram,1975, the statutory Corporations: LIC , ONGC and
IFC were held to be State under Article 12 of the Constitution because these
corporations were created by statutes, had the statutory power to make binding
rules and regulations, and were subject to pervasive government control and
were performing very close to governmental or sovereign functions. It was also
stated that a state acts through the instrumentality or agency of natural or
juridical persons. It means that if an action has been done by a state’s
instrumentality or agency, then it would amount to State action. In order to find
out whether an entity is a state’s agency or instrumentality, following
determining factors were laid down:
 Whether the State has financial and administrative control over the management
 Whether the entity or instrumentality or agency is performing an essential
public function
 Whether the entity or agency is carrying out business for the benefit of public or
not.
In R.D.Shetty v International Airport
Authority,1979 the Court laid down few tests to
be an authority-such as entire share capital is
owned or managed by State, governmental
functions etc.
 In Ajay Hasia v Khalid Mujib AIR 1981 SC 487, a regional engineering college
was under the government‟s financial and administrative control of the
government. The court held that the college was an “authority” for the purposes of
Article 12. The court laid down the following tests to determine whether a body is
an instrumentality of the government or not:
I. If the entire share capital of the corporation is held by the government
II. Where the financial assistance of the state is so much as to meet almost entire
expenditure of the corporation.
III. Whether the corporation enjoys monopoly status, which is state conferred or state
protected
IV. Deep Pervasive control.
V. If the functions of the corporation are of public importance.
VI. If a department of government is transferred to corporation.
However, these tests are not conclusive and exhaustive. These are inclusive in nature.
With regard to private entities, the Supreme Court widened the meaning of State
action.
 In M.C. Mehta v Sri Ram Fertilizers Ltd.,
1987 SCR 819, the court stressed that the
ambit of Article 12 should be enlarged in
order to bring private companies under the
strict scrutiny of fundamental rights.
 In the case of J.P. Unni Krishnan v State of
A.P. the court held that private educational
institutions cannot be allowed to violate
Article 14 as they are performing a public
function of imparting education. It is very
important for the judiciary to enlarge the
scope of Article 12 for essential public
function like education
 In Pradeep Kumar Biswas v Indian Institute
of Chemical Biology & Ors., (2002), the
Supreme Court said that the tests formulated
in Ajay Hasia are not a rigid set of principles.
The court held that cumulative effective of
all the tests will be considered to find out
whether the body is financially, functionally
and administratively dominated by or under
the control of the Government. Here
CSIR(Council of Scientific and Industrial
Research) was held to be a State.
 In Zee Telefilms Ltd. v Union of India 2005, the court
excluded Board of Control for Cricket in India (BCCI),
from the purview of article 12. The court said that mere
regulatory control, whether under statute or otherwise, did
not make a body state. The court found that the Board was
not the creation of any statute. The government had no
financial control over the Board. Moreover, the state confers
no monopoly status over Board of cricket in the country.
The court found that the government has only regulatory
control over the Board and not administrative one.
Therefore,
the court held that the Board was not “state” under Article
12. However, the relief against BCCI is available in high
courts under article 226.
 
• BCCI vs Cricket Association of Bihar &
Ors. (2016)
It was further ascertained in this case, that
BCCI is not a state. This Court held that even
the Board of Control for Cricket in India was
not “State” within the meaning of Article 12, it
was amenable to the writ jurisdiction of the
Court under Article 226 of the Constitution of
India as it was discharging important public
functions. Still, the aggrieved party cannot
come under Article 32
• Dr. Janet Jeyapaul Vs. SRM University (2015)
In this case, the question was whether SRM university which is a Deemed
University comes under the meaning of “state”. SRM University, which is engaged
in imparting higher education in various subjects and which by notification was
considered as a Deemed University under the UGC (University Grants
Commission) Act, 1956. The petitioner (an employee of the SRM University),
appealed for writ jurisdiction in the High Court of Madras under Article 226
challenging the notice issued by the SRM University terminating her services. The
High Court held that SRM University was not a state and therefore no writ petition
lies. But the Supreme Court, held it to be a state as the University was engaged in
imparting education which was a public function. SRM University is a deemed
University under the UGC Act, all the provisions of the UGC Act are made
applicable to the SRM University which, inter alia, provides for effective discharge
of the public function namely education for the benefit of the public at large.
 Under Article 12, the control of the Government does not
necessarily mean that the body must be under the absolute
direction of the government. It merely means that the
government must have some form of control over the
functioning of the body. Just because a body is a statutory
body, does not mean that it is ‘State’. Both statutory, as well as
non-statutory bodies, can be considered as a ‘State’ if they get
financial resources from the government and the government
exercises a deep pervasive control over it.
For example- State includes Delhi Transport Corporation,
ONGC and Electricity Boards, but does not include NCERT as
neither is it substantially financed by the government nor is the
government’s control pervasive.
Judiciary is a State or not???
Although there is no specific mention of judiciary in Article 12, the
Supreme Court has the power to make rules (to regulate practice &
procedure of courts), appoint its staff and decide its service conditions
(as mentioned in Articles 145 and 146 of the Indian Constitution).
Hence, it performs the role of a State.
There is a distinction between the judicial and non-judicial functions of
the courts. When the courts perform their non-judicial functions, they
fall within the definition of the ‘State’. When the courts perform their
judicial functions, they would not fall within the scope of the ‘State’.
So, it can be noted that the judicial decision of a court cannot be
challenged as being violative of fundamental rights. But
an administrative decision or a rule made by the judiciary can be
challenged as being violative of fundamental rights, if that be supported
by facts. This is because of the distinction between the judicial and non-
judicial functions of the courts.
In Prem Garg v/s Excise Commissioner H.P. ,
the Supreme Court held that when rule making
power of judiciary is concerned, it is State.
Whereas other jurists say that since judiciary
has not been specifically mentioned in Article
12, it is not State.
In Rati Lal v/s State of Bombay, a different
decision came from the court and it was held
that judiciary is not State for the purpose of
Article12.
In A.R.Antulay v/s R.S.Nayak [1988] and
N.S.Mirajkar v/s State of Maharashtra [1966] , it
has been observed that when rule making power
of judiciary is concerned it is State but when
exercise of judicial power is concerned it is not
State. The court said “Even if a court is a state, a
writ under article 32 cannot be issued to a high
court of competent jurisdiction against its judicial
order because such order cannot be held to vitiate
Fundamental Rights.”