Part III of the Constitution of India guarantees certain fundamental rights to
the citizens of India as well as other persons residing in India. These
fundamental rights are guaranteed only against State action. In other words,
the State cannot act contrary to the fundamental rights and cannot by its action
legislative or otherwise curtail or take away the fundamental rights. Every
person aggrieved by curtailment or encroachment of the fundamental rights is
entitled to approach the Supreme Court under Article 32 or the High Court under
Article 226 of the Constitution of India.
If the rights of a citizen are interfered with by any other person it only
amounts to violation of his/her civil rights and he/she can approach ordinary
Civil Courts or Criminal Courts constituted by the State for relief. Therefore,
Article 12 of the Constitution of India defines the word State for purposes of Part III of the Constitution
of India, which reads as follows:
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 authorities within the territory
of India or under the control of the Government of India.
The Constitution of India is the sovereign law of the land. It promises Justice,
Liberty and Equality to the people of India. For this, the Constitution carries
the basic notion of Rule of Law i.e. limited Government, and provides the
structure, procedures, powers, and duties of Government institutions, and sets
out Fundamental Rights, Directive Principles, and the duties of citizens.
whole constitutional scheme prohibits all of the three organs of State i.e.
Legislature, Executive and Judiciary, from acting against the spirit of the
Constitution of India. The Constitution of India prohibits the State from
interfering with the individuals’ fundamental rights. The State cannot act
arbitrarily, irrationally, and unfairly.
The State cannot impose unreasonable
restrictions on an individual’s fundamental freedoms. In order to limit
someone’s right to life and personal liberty, the State has to adopt just, fair,
and reasonable procedure. However, all such constitutional remedies are
available against the State’s action only. In other words, the fundamental
rights can be enforced against the State only. An individual cannot enforce his
fundamental right against a private individual.
Whereas, the present age is of
an inevitable privatization & globalization, and has brought infinite private
bodies or entities performing functions of public importance. The limited
enforcement of Fundamental Rights involves serious implications, and asks what
would happen if private entities or non-state actors violate individuals’
Therefore, the Fundamental Right conferred by Part III is an injunction both to
the legislative as well as executive organs of the State and to other
Most of the Fundamental Rights are claimed against the State and its
instrumentalities and not against private bodies. Article 13 (2) of Constitution
of India bars the State from making any laws infringing any Fundamental
Rights. Article 124 of Constitution of India gives an extended significance to
the term State. Article 12 clarifies that the term State occurring in
Article 13 (2) of Constitution of India or any other provision concerning
Fundamental Rights, has an expansive meaning.
Meaning of State under Article 12 of the Constitution of India
Since India is a modern Welfare State, its functions have been increased over
the period of time. The Indian State has to draft and implement welfare policies
and schemes. Furthermore, the Government needs the assistance of different
departments, agents, and private bodies or individuals, for performing essential
public functions. However, the State cannot escape from their responsibility to
protect individuals’ fundamental rights.
Currently, many private bodies and
individuals engage in various commercial & non-commercial activities and perform
numerous functions of public importance affecting individuals’ fundamental
rights. But due to lack of broadest meaning of State, an individual could not
enforce his or her fundamental rights against these private or non-state actors.
In the Indian Constitutional Scheme almost all of the fundamental rights are
available against the State. Article 12 of the Constitution of India defines
State to include the Government & Parliament of India, the Government & the
Legislature of each of the States, all local authorities, and other authorities
within the territory of India or under the control of the Government of India.
The most problematic expression under Article 12 of Constitution of India is
other authorities as this expression is not defined in the Constitution of
India. 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
In [University of Madras Vs Shanta Bai & Anr, AIR 1954 Mad. 67] the
Madras High Court evolved the principle of ejusdem generis which meant only
authorities that perform Governmental or sovereign functions can be included
under Article 12 of Constitution of India. The Supreme Court of India
interpreted the definition of State in a very restricted sense. The Supreme
Court treated the definition as exhaustive one, and confined to the authorities
or those which are of like nature.
In [Rajasthan Electricity Board Vs Mohan Lal & Ors, AIR 1967 SC
1857] the Supreme Court held that other authorities included those authorities which had
been created by the Constitution or under any statute and, on whom powers had
been conferred upon by law. And it is immaterial that some of the powers
conferred on the authority may be for the purpose of carrying on commercial
activities while deciding the status of the authority under Article 12 of the
In [Sukdev Singh & Ors. Vs Bhagat Ram & Anr., AIR 1975 SC 1331] the
Supreme Court discussed the status of statutory corporations like ONGC, IFC and
LIC. The Supreme Court held that all of these Corporations were the State
under Article 12 of the Constitution of India because these corporations were
created by statutes, had the statutory power to make binding rules and
regulations, and were subject to pervasive Government control.
Mathew J in his concurring judgment went further. He said 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, he gave following determining factors
- Whether the State has financial and administrative control over the
management and policies of the agency
- 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?
Justice Mathew's concurring opinion became a guiding factor for the future
judges to determine whether an entity is a State’s agency or instrumentality or
In the case of [R. D. Shetty Vs International Airport Authority & Ors.,
1979 SCR (3) 1014] the Supreme Court laid down five tests to be considered other authority, which are as follows:
- Entire share capital is owned or managed by State
- Enjoys monopoly status.
- Department of Government is transferred to Corporation.
- Functional character governmental in essence.
- Deep and pervasive State control.
- Object of Authority.
In [Ajay Hasia Vs Khalid Mujib & Ors., AIR 1981 SC 487] a Regional
Engineering College was under the Government’s financial & administrative
control. The Supreme Court held that the College was an authority for the
purposes of Article 12 of Constitution of India.
The Supreme Court laid down the
following tests to determine whether a body is an instrumentality of the
Government or not:
- If the entire share capital of the Corporation is held by the Government
- Where the financial assistance of the State is so much as to meet almost
entire expenditure of the Corporation.
- Whether the Corporation enjoys monopoly status, which is State conferred
or State protected?
- Existence of deep and pervasive State control
- If the functions of the Corporation are of public importance?
- If a department of Government is transferred to Corporation?
However, these tests are not conclusive and exhaustive. These are inclusive in
With regard to private entities, the Supreme Court widened the meaning of
State action. In [M. C. Mehta & Anr. Vs Sri Ram Fertilizers Ltd. & Ors., 1987 SCR 819] the Supreme Court stressed that the ambit of Article 12 of Constitution
of India should be enlarged in order to bring private companies under the strict
scrutiny of fundamental rights.
Furthermore, in the case of [J. P. Unni Krishnan & Ors. Vs State of A. P &
Ors., (1993) 1 SCC 645] the Supreme Court held that private educational
institutions cannot be allowed to violate Article 14 of Constitution of India as
they are performing a public function of imparting education. It is very
important for the Judiciary to enlarge the scope of Article 12 of Constitution
of India for essential public function like education.
In [Pradeep Kumar Biswas Vs Indian Institute of Chemical Biology & Ors.,
(2002) 5 SCC 111] the Supreme Court said that the tests formulated in Ajay Hasia
are not a rigid set of principles. The Supreme 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.
In the case of [Zee Telefilms Ltd. & Anr. Vs Union of India & Ors., (2005)
4 SCC 649], deliberating upon the term other authorities as appearing in
Article 12 of the Constitution of India, the Apex Court held that, the following
bodies (or authorities) shall fall under the aegis of the term other
authorities, as appearing in Article 12 of the Constitution of India:
- Corporations & Societies created by the State for carrying out trading
activities, in terms of Article 298 of the Constitution of India, where the
capital, infrastructure, initial investment & financial aid is provided by
the State (and the State exercises the necessary regulation & control
- Bodies created for, or otherwise carrying out, works in the nature of
research and development, which are, broadly speaking, in periphery of
governmental functions?, but may or may not be in the domain of
- A private body discharging a public duty or a positive
obligation of public nature, and is carrying out activities which are
otherwise in the nature of the job of the Government.
The Supreme Court further held that, in case of hybrid bodies, the relevant factors qua the determination of
State, shall be the following:
- When a body acts as a public authority, and has a public duty to perform
- When it is duty-bound to protect the human rights;
- When it monitors a profession (or vocation) qua the citizens, which
otherwise is a fundamental right
In [Lt. Governor of Delhi & Ors. Vs V. K. Sodhi & Ors., AIR 2007 SC 2885]
the issue of whether State Council of Education, Research & Training (SCERT) is
a State within the meaning of Article 12 of the Constitution of India or not,
was raised. The Supreme Court found no governmental interference or control
either financially, functionally or administratively, in the working of the
A legislation of 1989 was enacted for promoting industries in the State of
Assam including small scale industries. The 1989 Act constituted a Board for the
purpose of monitoring supplies to various departments. The Managing Director of
the Corporation was a member of the Board in terms of the provisions of the 1989
Act. Analyzing the whole functioning of the Corporation, the Supreme Court in [Assam Small Scale Ind. Dev. Corporation & Ors. Vs J. D. Pharmaceuticals & Anr.,
AIR 2006 SC 131] held that it was a statutory body and was a State? within the
meaning of Article 12 of the Constitution of India. The contract by and between
the parties being a statutory one, the Corporation was required to act fairly
However, the above said statutory bodies, corporations, government companies
or public sector undertakings are not State? within the meaning of Article 131
of Constitution of India.
It has been settled through various decisions that this Article will not be
applicable where citizens or private bodies are parties either jointly or in the
alternative with the State or the Government of India.
In [Tashi Delek Gaming
Solutions Ltd. & Anr. Vs State of Karnataka & Ors., AIR 2006 SC 661 the Supreme
Court held that the enlarged definition of State under Article 12 of
Constitution of India would not extend to Article 131 of the Constitution of
India. The Supreme Court says that it is also not in dispute that even a
statutory corporation is not a State within the meaning of the said provision.
The Courts in India continuously says that instrumentalities of State are
different from State Government, though both may answer the definition of State under Article 12 of Constitution of India for the limited purpose of
Part-III of the Constitution of India.
The Supreme Court in [Srikant Vs Vasantrao & Ors., AIR 2006 SC 918] said
that the very inclusive definition of State under Article 12 by referring to
Government of India, the Government of each of the States and the local and
other authorities, made it clear that a State Government and a local or other
authorities, are different and that they fall under a common definition only for
the purpose of Part-III of the Constitution of India.
The Court refused to apply
the enlarged definition of State given in Part - III (and Part - IV) of the
Constitution of India, for interpreting the words State’ or ‘State Government
occurring in other parts of the Constitution of India. The Supreme Court
continued to say that while the term State may include a State Government as
also statutory or other authorities for the purposes of Part - III (or Part -
IV) of the Constitution of India, the term State Government in its
ordinary sense does not encompass in its fold either a local or statutory
authority. Considering these findings, the Supreme Court held that the
Corporation or other State’s instrumentalities are not State Government for the purposes of Section
9-A (read with Section 7) of the Representation of the People Act, 1951.
Again, in [State of Assam Vs Barak Upatyaka D. U. Karmachari, AIR
2009 SC 2249] the Supreme Court held that the fact that a Corporate body or
Co-operative Society answers the definition of State does not make it the
Government nor will the employees of such a body, become holders of civil
posts or employees of the State Government. Therefore, the fact that a
Corporation may answer the definition of State does not mean that the State Government is
liable to bear and pay the salaries of its employees.
However, again the Supreme Court of India in [Indian Medical Association Vs
Union of India & Ors., AIR 2011 SC 2365] held that the rights of non-minority
educational institutions to admit students of their choice, if exercised in full
measure, that would be detrimental to the true nature of education as an
occupation, damage the environment in which our students are taught the lessons
of life, and imparted knowledge, and further also damage their ability to learn
to deal with the diversity of India, and gain access to knowledge of its
problems, so that they can appreciate how they can apply their formal knowledge
in concrete social realities they will confront.
Since education is the most important function of public importance, every
individual, body or entity performing such public function should be considered
as State action within the meaning of Article 12 of the Constitution of India.
The liberal interpretation of State action is the only way to protect
individuals’ fundamental right to education in India.
The National Commission to Review The Working Of The Constitution 2002, had
recommended that in Article 12 of the Constitution of India, the following
explanation should be added;
In this Article, the expression other authorities shall include any person in
relation to such as it functions which are of a public nature.
Currently, traditional functions of a Welfare State are being dealt and
performed by the private entities and private individuals. Where these private
entities violate individuals’ fundamental rights, for instance if private
employers terminate LGBTs’ employment or discriminate on any other
unconstitutional ground, the limited interpretation of other authority under
Article 12 of Constitution of India would be a wrong law. The individuals should
be empowered to enforce their fundamental rights against private entities too.
The definition of State was initially treated to be exhaustive,
confined to the authorities stipulated under Article 12 of the
Constitution of India and those which could be read ejusdem generis with
the authorities mentioned in Article 12 itself because till about the year
1967 the Courts had taken the view that even statutory bodies,
Universities, Section Committee for admission to Government Colleges were
not other authorities for the purpose of Article 12 of the Constitution of
But, the definition of State has been expanded by judicial
interpretation. The National Commission to Review the Working of the
Constitution, set up vide Government Resolution dated 22 February, 2000,
recommended to add an explanation in Article 12 of the Constitution as:
‘Explanation – In this Article, the expression other authorities
shall include any person in relation to such of its functions which are of
a public nature.’
Written By: Dinesh Singh Chauhan, Advocate, High Court of Judicature,
Email: [email protected]; [email protected]