The State and its Mystified Interpretations:
"Ever since the discourse on state began, it had been a difficult task for the
academicians to demarcate its boundaries. It is futile to depict the state in a
defined framework. Its boundary with society is ill-defined, permeable, and
fluid. Investigating the nature of the state and how it affects the individual
rights has been done before. There is a significant corpus of writing in
history, philosophy, and political science that examines and ponder about the
"The deliberation took place in the post-war period offered two ideas. First was
to abandon the state as a concept too narrow or too wide to be in the framed of
general science of politics, hence it was replaced with political system." But
the change in vocabulary failed to solve the issue."
Since the late 1970s, the second solution has been to "bring the state back in."
However, the literature has mostly avoided the likelihood rather than tackling
the challenge of finding the illusive line between the two.
It has done this by reducing the state to a subjective system of
decision-making, which is demonstrably idealistic and excessively narrow.
Abandoned idea of state:
"The nature of the differences between the two consecutive approaches to the
state's dilemma have been the subject of acrimonious debate between their
proponents. When Easton, Almond, and other scholars dropped the word "state"
from their political lexicon in the 1950s, it wasn't because they believed that
political analysis should shift its emphasis from the state to society, but
rather because they felt that the word itself had two related flaws: its meaning
was ambiguous, leading to disagreement about exactly what it referred to; and
moreover, even if consensus could be reached, the term left out crucial elements
of the political process."
"Several reason can be ascertained for abandoning of the state concept to the
massive political mobilisation that occurred in the West in the nineteenth and
twentieth centuries, as well as to the growth of governmental and extrastatal
political institutions like parties, interest groups, and the media that are
situated on the shaky border between society and state and are not necessarily
covered by the latter."
Instead of replacing the larger but clearly defined borders of a self-contained
system with the challenge of the uncertain boundary between state and society,
the systems approach simply expanded the very space of the boundary into an
infinite and undefined terrain.
The Subjective idea
"The core of the statist perspective, according to Nordlinge: The argument used
to support the "emphasis on individuals" over institutionalized structures in
the study of the state is that institutions do not have preferences or act on
them; rather, they merely influence the way individual officials act.
Furthermore, because the scope of this influence varies across states, it is
claimed that it cannot be included in a definition of the state. Even if one
agrees with these ideas, they all hinge on the original choice to view
preferences as the fundamental aspect of the state".
"As an initially subjective entity made up of unique preferences, ideas,
decisions, and other ideational phenomena�a person in broad strokes�the
beginning point establishes the character of the state. The existence of
thoughts and desires, in our everyday sense of personhood, gives the human being
the appearance of being a self-formed and distinct entity."
"According to Krasner and Nordlinger, the state's purported autonomy is mostly
generated definitionally. The fascinating subject of study is condensed to
something called policy, which refers to the intentions and preferences of
particular state officials. The national interest is defined as the state's
disembodied ideality, which is analysed as a self-generated and ruling ideality
rather than merely a rhetorical effect. Writing of this kind shouldn't be judged
by its own scientific assertions. The case studies used to illustrate the notion
of state autonomy are skimpy and unsatisfactory interpretations of intricate
political situations, as shown by Krasner's examples."
Recent writings by Nordlinger circumvent this issue by containing no case
examples at all.
"The goal of most of this writing, according to Almond, is "to demystify the
state notion." If true, then this type of writing has to be viewed as a
distinct, self-willed thing that is a part of a much wider social process that
produces the state's unexplained effects."
"It is necessary to examine the condition as a structural consequence. That is
to say, it should be analysed as the potent, metaphysical consequence of
activities that provide the appearance that such structures exist rather than as
a real structure. For instance, the border is one aspect of the contemporary
state. State practises define and contribute to the formation of a national
entity by establishing a territorial limit and exerting complete control over
movement across it. A number of very contemporary social actions are involved in
setting establishing and policing a border."
Examining how the state appears to be separate from society but still viewing
this separation as an internal structure allows one to understand how this is
possible. The state's border is only a result of these alterations; it does not
really define an edge. It is not an actual object's boundary.
The new approach
"The state should not be taken as a freestanding entity, whether an agent,
instrument, organization or structure, located apart from and opposed to another
entity called society. The distinction between state and society should
nevertheless be taken seriously, as the defining characteristic of the modern
"The state cannot be dismissed as an abstraction or ideological construct and
passed over in favour of more real, material realities. In fact, this
distinction between conceptual and material, be- tween abstract and real, needs
placing in historical question if we are to grasp how the modern state has
"For the same reason, the prevailing subjectivist view of the state as
essentially a phenomenon of decision making or policy is inadequate. Its focus
on one disembodied aspect of the state phenomenon assimilates the state-society
distinction to the same problematic opposition between conceptual and material."
"The state should be addressed as an effect of detailed processes of spatial
organization, temporal arrangement, functional specification, and super- vision
and surveillance, which create the appearance of a world fundamentally divided
into state and society. The essence of modern politics is not policies formed on
one side of this division being applied to or shaped by the other, but the
producing and reproducing of this line of difference."
"These processes create the effect of the state not only as an entity set apart
from society, but as a distinct dimension of structure, framework, codification,
planning, and intentionality. The state appears as an abstraction in relation to
the concreteness of the social, and as a subjective ideality in relation to the
objectless of the material world. The distinctions between abstract and
concrete, ideal and material, and subjective and objective, which most political
theorizing is built upon, are them- selves partly constructed in those mundane
social processes we recognize and name as the state."
Fundamental Rights are claimed mostly against the "State". Article 12 gives an
extended significance to the term 'State' occurring in Article 13(2), or any
other provision. Fundamental Rights, has an expansive meaning.
According to Article 12, the term state includes:
- The government and Parliament of India
- The government and the legislative of State
- All local authorities and
- Other Authorities within the territory of India, Or under the control of
The most significant word here is the 'Other Authorities' as it is a fountain
head of Interpretation."
Jurisprudence over the term Other Authorities:
Is Judiciary a State?
- In the University of Madras V. Shanta bai the idea of Esjudem Generis was
laid down. Madras.
The Madras High Court ruled that other authorities in this case could only refer
to other authorities of a similar character; for instance, if ejusdem generis
were to be interpreted in this way, it could only refer to authority performing
governmental or royal Functions. It cannot include entities like universities
unless they are supported by the State, whether they are natural or legal
people. However, in Ujjammbai v. State of U.P., the court rejected the Madras
High Court's narrow interpretation of the phrase "other authorities" and
declared that the ejusdem generis rule could not be reinstated when interpreting
The government of the Union and the States, the legislature of the Union and the
States, and local authorities are particularly mentioned in article 12. These
named bodies do not have a common genus, nor can they be logically lumped
together into a single category.
The To and FRO movement between Structuralism and Functionalism Approach
- Later in the case of Rajasthan State Electricity Board V. Mohanlal,
In his ruling, Justice Shah referred to the two structural phenomena of
"Statutory" existence and "Power to Punish" as the "virtue of the Sovereign."
These structural phenomena set forth the starting principles for determining the
mantle of the "State." It's interesting to note that the RSEB's directive
remained a beacon of light until 1975. However, a key issue that the ruling
resolved was the judges' concern with the idea of a sovereign state, and it was
noteworthy to note that the verdict appeared to be contextualised in the
original concept of a nation-state and lingered around the idea of sovereign
However, given the potential role change that had begun to emerge in the Indian
market environment in the late 1970s and early 1980s, the judgement does not
appear to be one that can be sustained.
- Sukhdev Singh v. Bhagatram
"Three sets of Judgements that emerged as a result of the judges having their
own sets of opinion about the concept of what could be termed as a "State". The
Majority of CJ Ray, J. Chandrachud and J. Gupta in this constitutional bench
decision that also consisted of J. Mathew and J. Algiri Swami, partly agreed
with the concept of statue and constitutionally created authorities."
In this case SC following the test laid down in RSEB case has held that ONGC,
LIC and Industrial Finance Corporation are authorities within the meaning of
Art. 12 of CoI and therefore they are 'State'. All three statutory corporation
have the power to make regulation under the statue for regulating condition of
services of their employees.
J. Mathew quoted in his judgement that "A finding of state financial support
plus a unusual degree of control over the management and policies might lead one
to characterize an operation as state action."
He further added that the developing idea, he said, appears to be that a public
company that serves as an instrumentality or agency of the "State" is subject to
the same constitutional restraints as the "State" itself. The significant idea
was of the entities discharging functions of High Public Importance.
Thus, it can be seen that Justice Mathew is referring to the involvement factor
of state in an entity to find whether it will fall under the definition of Art.
- Sabhajit Tewari v. UOI
The court established the rule that a body must be a statutory entity in order
to be considered a state under Article 12; mere control or financial support
from the federal government is insufficient.
The court ruled that non-statutory organisation employees who are registered
under the Societies Registration Act of 1860 and the Companies Act of 1956 are
not entitled to the same protections as government workers under Article 311 of
the constitution. In these situations, the firms were deemed to have autonomous
existences from both the government and corporate law. These could not be
considered government departments.
The court ruled that because the "Council" is not covered by Article 12 of the
constitution, the petitioner's claims that Article 14 of the constitution was
violated could not be granted.
- Ajay Hasia v. Khalid Mujib 
Even at the peak of the functionalist phase the court failed to provide the
much-required doctrinal transition from a structuralist to a more expansive
functionalist test. The judgement laid down the following ideas:
It doesn't matter what si structure of the body whether statutory or
non-statutory, whether it was setup by gov. or some private entity , no matter
what function it discharges governmental or semi-governmental. The court
continued to look a t whether the relationship of the enitity in question with a
more wider structuralist approach that take into account a few more factors than
the narrow one advocated in RSEB.
- The principle of Juristic Veil was introduced.
- A conceptual rational for "the agency or instrumentalities approach".
- The idea of deep pervasive control of the government behind the formal
ownership cast in corporate mould.
The following six principles are as follows:
The juristic veil rationale introduced to conceptually support the agency or
instrumentalities framework facilitated the re-emergence of a narrow
structuralist doctrine over time.
- Entire share capital owned by government
- Financial assistance from the state meets almost entire expenditure
- Monopoly status conferred or protected by the state
- Deep and pervasive state control
- Functions which are of High public importance
- A government dept. transferred to a corporation.
- Pradeep Kumar Biswas v. Indian Institute of Chemical Biology
The Judgement formally overruled the judgement of Sabhajit Tiwary. It narrowed
down the test laid down for agency or instrumentalities. It conceptualised the
idea that a body would qualify as a 'State' under Art. 12 where it was
'financially', 'functionally' and 'administratively' dominated by or under the
The bench held that CSIR is a governmental instrumentality of the state under
- The case show cased the Court's inclination towards structuralist perspective.
- Now body had to meet the governmental dominations on all the three
- Sealed the future of an open-minded functionalist inquiry by completely
ignoring the trapping of the state framework applied there, decided by 7
- Ignored the test of Art.12, distinguishing between local or other
authorities with the territory of India.
- Zee Telefilms ltd. v. Union of India 
The Supreme Court's five-judge constitutional bench, which was made up of
Justices N. Santosh Hegde, S. N. Variava, B. P. Singh, H. K. Sema, and S. B.,
determined the matter. Sinha.
Even though BCCI had a monopoly over cricket control, the state neither granted
it to it nor provided any legal protection for it, according to the court.
The court also determines that BCCI is not owned by the state and is financially
independent of it. With all of these points being made, the court decides it is
unnecessary to address the claim that the defendants infringed the petitioner's
The board represented the Indian government to the world community, according to
Justice Sinha's only dissenting judgement.
The Supreme Court has reiterated its earlier, well-established decisions in
Sabhajit Tewary v. UOI and Pradeep Kumar Biswas v. Indian Institute of Chemical
Technology through this five-judge panel, removing all doubt about how to
interpret the term "state" within the context of Article 12 of the constitution.
The term "judiciary" is not clearly defined in Article 12 of the Constitution.
This grants judicial officials the authority to issue judgments that may violate
an individual's fundamental rights. According to the article, if it were placed
under the control of the "State," it would be required that people' fundamental
rights not be violated. As a result, it is not possible to dispute court
decisions on the grounds that they infringe someone's basic rights. However, it
has been noted that administrative orders issued by courts, including the
Supreme Court, have frequently been contested as being in violation of basic
The contrast between the judicial and non-judicial activities of the courts
provides the solution to this query. The courts are considered "states" when
they carry out their non-judicial duties. The courts would not be considered
"states" while they carry out their judicial duties.
Naresh Sridhar Mirajkar v. State of Maharashtra
It is now a well-established principle of Indian law that the Supreme Court of
India does not have the jurisdiction to grant a writ of certiorari to a High
Court or another bench of the same Court under Article 32 unless the judgement
is ultra-vires. Because learned courts only give orders after thorough
consideration and an aggrieved party always has the opportunity of appealing,
the majority's decision in this instance was accurate. Therefore, the question
of issuing a writ of certiorari only comes up in rare instances.
"It was held that there was no violation of fundamental right even if a court is
the 'State' under Article 12, a writ under Article 32 can't be issued against
the HC or court of competent authority against its judicial orders because such
charges can't be said to violate the fundamental rights."
Ujjjam Bai v. State of U.P.
In this case it was held that a quasi-judicial or judicial body in exercise of
its function couldn't violate fundamental rights therefore, a writ of certiorari
can't be issued against a High Court. The Court determined that under Article 32
it would overturn a quasi-judicial body's decision affecting a citizen's
fundamental rights if the quasi-judicial body is acting under an ultra-vires
law, lacks the authority to enact such a law, fails to follow the principle of
natural justice, or fails to follow the mandatory procedural requirements
outlined in the applicable Statute.
A.R. Antualy v. R.S. Nayak 
This judgement is almost on the same lines as the Ujjjam Bai as far as its
outcome is relevant. That if court can violate the rights of an individual.
The judiciary can neither increase nor decrease a court's jurisdiction; it can
only interpret the statutes. In this case, a court's approval is irrelevant
since the courts cannot override legislative decision-making. Along with the
authority to establish and broaden jurisdiction, the legislature also has the
authority to grant or revoke an appeals right to a specific court. No court,
whether superior, lower, or both, may extend the court's jurisdiction or deprive
a person of their rights to review and appeal. Only the Parliament has the
authority to accomplish this by legislation.
Rupa Ashok Hurrah v. Ashok Hurrah 
SC reaffirmed and ruled that no judicia proceedings could be said to violate any
fundamental rights. When the court perform administrative function, they are
state and the same courts while delivering justice to the large or while
performing judicial function they are not state.
"Institutional remedy of a curative petition in all cases where the pertitioner
has been denied a hearing or the judge is biases, was created.
It was further clarified that a writ under Article 32 shall not lie from the SC
to the HC or from on HC to another as no judicial order passed by any superior
court in judicial proceedings can't violate the fundamental rights." 
The state can't be restricted to a mere definition. The meaning of states
changed over decades from mere a structure to a welfare state for the political
science discipline. The reason being the dynamic societies as the societies
evolve so as idea of state.
But for the point of view of legal justice, the definition of state has turned
manier folds beginning from a simple structuralist idea to more complex
functionalist aspects. The jurisprudence over the idea of state is ever growing
due to legal interpretations according to the existing societal circumstances.
Today we rest upon the idea of state to a structural framework laid down in the
case of Ajay Hasia and Pradeep Kumar Bishwas.