Key Points For Article 12 by Dr. Varsha Deshpande

KEY POINTS FOR ARTICLE 12
By: Dr Varsha Deshpande, Associate Professor
DEFINITION OF STATE
Article 12: State: In this Part, unless the context otherwise requires, the State includes the
Government of India, Parliament of India, the Government and legislatures 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.
- It is imperative to define state as FRs are available only against the State.
- The definition is, strictly speaking, only for Part III
- The devise of an inclusive definition is used. Hence scope of the word can be expanded
or compressed, depending on the context
- All three levels of government i.e. central, state and local government find a mention
- Legislature and executive of the centre and state are specifically included.
- Bodies outside the Indian Territory but which are subject to the Indian government’s
control are included. E.g. Diplomatic staff of India which is stationed abroad.
- Two questions u/A 12 are worthy of study: Meaning of ‘other authorities’ in the text of
Article 12 and whether Judiciary is a part of State u/A 12.
“Other authorities” u/A 12: Key-points:
- Which bodies will fall within the scope of “Other authorities” is not very clear.
- Hence has been a subject of great discussion before the courts in different cases.
Important cases in the evolving jurisprudence of Art. 12 are as below:
- University of Madras vs Shantabai (1954) Madras HC: Held the words “other
authorities” must be construed ejusdem generis, meaning it could only include authorities
of a like nature as those specifically included in Art. 12
- Soon courts felt that this principle could not be resorted to.
- Rajasthan State Electricity Board vs Mohanlal ( 1967) SC decision: Two-fold test laid
down to determine what other authorities are: a) Is the body a statutory body; b) does it
have the power to issue binding rules and regulations
- Sukhdev Singh vs Bhagat Ram (1975) SC decision: Majority followed the two fold test
of RSEB to conclude that the three corporations (ONGC, LIC, IFC) are other authorities.
But Mathew J. delivered a concurring judgment wherein he emphasised on the ‘function
approach’ in determining state in a welfare state ideology. Sowed the seeds for a broader
‘agency and instrumentality’ test.
- R D Shetty vs International Airport Authorities (1979) SC decision: Applied the
broad based agency and instrumentality test for the first time to decide that International
Airport Authority is State.
- Ajay Hasia vs Khalid Mujib (1981) SC decision: For the first time held a non-statutory
body to be state u/A 12. Suggested to look at several factors like : a) whether the shae
capital is held by the state; b) where does the funding to the body come from; c) whether
the body enjoys monopoly status conferred by the state; d) does the body discharge
public functions; e) who enjoys administrative powers over the body etc.
- Pradeep Kumar Biswas vs Indian Institute of Chemical Biology (2002) SC decision:
Held CSIR is other authority u/A 12, thereby over-ruling Sabhajit Tiwari. Devised a
three-pronged test of seeing whether the state had control financially, functionally and
administratively.
- Zee Telefilms vs UoI (2005) SC decision: Applying Pradeep Kumar Biswas held that
BCCI is not state.
Is Judiciary ‘State’ u/A 12?
- Judiciary neither included nor excluded. So Article 12 silent on it.

- Budhan Chaudhary vs State of West Bengal : Question raised but not answered.
However observations of Das J. incline towards suggesting that judiciary should be State.
- Naresh Shridhar Mirajkar vs State of Maharashtra (1966) SC decision, Bench of
nine Judges and five opinions delivered. Gajendragadkar J. for majority and
Hidaytullah J. dissenting. Majority holds that judiciary is not state when acting in its
judicial capacity. Hidaytullah J. holds that State includes all three pillars of the State and
it was never intended to exclude the judiciary from the limiting force of fundamental
rights even when it is acting in its adjudicatory capacity.
- Antulay vs Nayak (1988) SC 6 judges bench decision: Held that the judicial order
transferring the trial from special court to the HC infact violated FRs of the petitioner but
no writ lay from the SC to the HC. The Court arrogated wide powers to itself to correct
the error however. Thus leads to the conclusion that judiciary is state, though the court
doesn’t expressly say so.
- Roopa Ashok Hurra vs Ashok Hurra (2002): SC decision : Held that judicial orders
could violate FRs. But Court invented the remedy of curative petition to cure such errors
and said that Writ petition will not lie.

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KEY POINTS FOR ARTICLE 12

By: Dr Varsha Deshpande, Associate Professor

“Other authorities” u/A 12: Key-points:

Is Judiciary ‘State’ u/A 12?

- Judiciary neither included nor excluded. So Article 12 silent on it.

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