CONSTITUTIONAL LAW 1

PROJECT
ON
DEFINATION OF STATE UNDER ARTICLE
12

BY : TO:
Porush Jain Dr. Shruti Bedi
Roll No. : 209/19
B.Com.LL.B(Hons)-D
Sem. : 3rd

1
 Acknowledgment

I would like to express my gratitude to my Constitution teacher, Dr. Shruti Bedi

, and to the Director , Dr. Rajinder Kaur , for providing me with the opportunity
to do this project and to do research on the topic – State Under Article 12 .
This project has helped me a lot in doing research and I got to learn many new
things from it about the topic and the subject. I also want to thank my teacher ,
friends and family to help in doing this project .

I hope this project serves it purpose and is worthwhile to all the readers

Porush Jain

2
 CERTIFICATE

This is to certify that the content of this project entitled, Definition Of State
Under Article 12 , by Porush is the bona fide work of him submitted to Prof
Dr Shruti Bedi in the partial fulfilment of the course of B.Com.LL.B.[Hons.]
by University Institute Of Legal Studies, Panjab University, Chandigarh.
The original research project work was being carried out by me in the academic
year 2020-2021 .

Porush Jain

3
 Table of Cases

Ajay Hasia Khalid V. Mujib 13

Bank Of India V. O.P Swaranakar 14
Chander Mohan Khanna V. National Council of Research and Training 16
Evans V. Newton 12
Gurmukh Singh V. Union Of India 08
I.R Coelha V. State Of Tamil Nadu 06
Kul Bhushan V. PNB 14
Lal Sanga V. P.G.I 14
Masthan Sahib V. Chief Commissioner Pondicherry 16
Minneapolis R. Co. V. Beckwith 19
Naresh Shirdhar Mirajkar V. State Of Maharashtra 17
Pradeep Kumar Biswas V. Indian Institute of Chemical Technology 13
Rajasthan State Electricity Board V. Mohan Lal 11
Raman Dayaram Sheety V. Inrernational Airport Authority 11
Rupa Ashoka Hurra V. Ashoka Hurra 17
Sanjaya Bahel V. Union Of India 17
Satish Kumar V. Punjab State Co-operative Bank 14
Smt. Sujata Kumar V. State Of Meghalaya 16
Som Prakash V. Union Of India 11
Sukhdev Singh V. Bhagatram 11
Tekraj Vasandi V. Union Of India 15
Ujjambai V. Sate of Uttar Pradesh 10
Union Of India V. R.C Jain 09
University of Madras V. Shantha Bai 10
Unni Krishnan V. State of Andhra Pradesh 16
Uttar Pradesh Co-operative land development bank V. Chandrabhan Dubey 15
Zee Telefilms Ltd. V. Union of India 15

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 Index

Particular Page No.

Introduction ………………………………………………06
Historical Constitutional Background……………………07
Definition and Nature Of State Under Article 12………...08
Legislature and executive under Central and state
Government …………………………………………...08
Authority ………………………………………………08
Local Authority……………………………………09 to 10
Other Authority……………………………………10 to 17
Judiciary……………………………………………….17 to 18
Position of State in United States Of America…………….19
Conclusion………………………………………………….20
Bibliography………………………………………………..21

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 Introduction

Fundamental Rights are groups of rights which are guaranteed to all citizenship
of nation by Constitution against the STATE. These Fundamental rights are
mentioned in Part III of Indian constitution . The Fundamental rights
represent the basic values cherished by the people of India since the Vedic
times and they are calculated to protect the rights and dignity of the individual
against the state . Fundamental rights of India is followed from American
constitution . Part III contain the bill of rights for people of India . these rights
are similar to the Bills of Right of America . In case I.R Coelha VS State of Tamil
Nadu 1 Supreme court observed that the rights were not limited , narrow rights
but provide a broad check against violations and excesses by the state of the
Fundamental rights provided to the citizens are claimed against the Most State
and its instrumentalities and not against the private bodies. Article 12 gives an
extended significance to the term ‘state’. It is very important to determine
what bodies fall under the definition of a state so as to determine on whom
the responsibility has to be placed. The definition of the term State under
Article 12 is inclusive and not exhaustive. The language of Article contains two
important flexibility terms to cope up with the challenges posed by the society.
The first one is the “inclusive nature” of the definition, which is evident through
the use of the expression “includes” which can be used to accommodate new
entities within the scope of Article 12. Therefore, authorities not specified in the
Article may also fall within it if they otherwise satisfy the characteristic of the
‘State’ or if they perform any functions ordinarily performed by the
Government. The second is use of the expression “unless the context otherwise”
that allows the use of the concept of State in different situations in different
manner and context.

1
AIR 2007 SC 861

6
 Historical Constitutional Background Of Article 12

A perusal of the Constitution Assembly Debates of India (CAD) itself will

reveal that the Constitution makers wanted fundamental rights to be at a high
pedestal than that of other rights. Under the draft constitution state was defined
under article 7. The objective behind defining state was to provide an impetus to
the effective enforcement of fundamental rights. Dr. B.R. Ambedkar said that
fundamental rights could be claimed against anybody or authority exercising
power over the people. By ‘authority’ he meant every authority which has got
either power to make law or an authority on which discretionary power is
vested. Besides a closer look at the Article reveals that the words have been
added in such a manner as to help the law givers to interpret the term with the
changing needs of the society .

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 Definition and Nature of Article 12

Article 12 of the Indian Constitution states that,

“ 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 Government of
Indian .2 Article 12 gives an inclusive definition of The State , so it includes the
following : (a) The Government and the Parliament of India;
(b) The Government and Legislature of each of the States;
(c) All local or other authorities within the territory of India ; and
(d) All local or other authorities under the control of the
Government of India
The first two category include the Legislative and the Executive organ of the
Union as well as the States . The term Government stands to include a
department of Government or any institution under the control of government
like The income tax department , and etc .3
Whether President come under state ?

In the Case of Gurmukh Singh vs Union Of India 4 , it was held that the state
in article 12 includes the Government and Parliament of india and according to
the article 53 , the executive power of Union of india vested in the president and
it is execised by him. Then an act of President is deemed to be an act of
Government or the state . The acts of president are officals act. So the President
of india while acting in his official capacity must be included in the term
Government and be regarded as “the state” for the purpose to be included in
Part III.

Authorities

“Authority” means a public administrative agency or corporation having quasi-

governmental powers and authorized to administer a revenue producing public
enterprise. It is wide enough to include all bodies created by a statute on which
powers are conferred to carry out governmental or quasi-governmental
functions.
2
The constitution of India
3
Kumar Narender , Constitutional Law Of India 84( Allahabad Law Agency, Faridabad , 10th edn., 2020).
4
AIR 1952 Punjab 143

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Under article 12, STATE is classified as two authority : 1. Local Authority

2. Other Authority

Local Authority

The expression “local authority” refers to the unit of self government .

According to Ss 3(31) of general clauses act, 1897 defines local authority as a
Municipal committee , District Board , body of port commissioners or other
authority legally entitled. 5

The distinctive attributes and charactertics of an authority to be local authority

was notices down in UNION OF INDIA V. R.C JAIN6 the five conditions
were laid down .

1. The authority must have separate legal existence , they must have a separate
legal entity as a cooperate bodies .

2. They must perform the function in defined area and must ordinarily ,
wholly ,or partly directed or indirected be elected.

3. Authority must enjoy some a certain degree of freedom , freedom to decide ,

and policies and etc.

4. They must perform the government functions which are for the public .

5. They must have the power to raise funds . like by collecting taxes, fines, rates
and etc . It may be additional to money provided by Government

After taking into the consideration these characteristics the supreme court held
that the Delhi Authority Authority for development of delhi was a local
authority and it cover under Article 12 State .
5
Supra note 3 at 84
6
AIR 1981 SC 951

9
 Other Authority

It refers to authorities other than those of local self- government, who have the
power to make rules, regulations, etc. having the force of law. In these
authority cover a person or a body, exercising power or command , power to
make laws , order, regulation and etc. Other authority therefore shall include
those authorities which have power to make law , bye laws . 7 Later on after
different decision of courts the final taken into consideration that the other
authorities will be seen that what is the control of Government in that authority

The expression other authority came to be interpreted for first time by Madras
High Court in case of University of Madras V. Shantha Bai 8. In this case the
Madras University was constituted under the Madras University Act , 1923 .
Though it was state aided but it didn’t maintain by government . So the madras
high court held that the words “ other authority” must be construed “ejusdem
generis” and it was maid rule for construed the other authority . The maxim
“ejusdem generis” means those authority which are of nature like named in
article 12 that are The Government of india , Union Parliament ,the government
of each state and legislature of each state. 9 We should consider the state in same
sense like the first two points of article 12 . It was held that the Madras
University will not cover under the state as it is not maintained by the state .

In case of Ujjambai v. State of Uttar Pradesh10 the Supreme Court held that

the Sales Tax Officer , an authority constituted under Sales Tax Act , 1956 for

assessing the tax would be considered as a State under Article 12 . The supreme
court rejected the Interpretation of “ejusdem generis”. The question as to
interpretation of expression “other authority” , was considered in detail by
supreme court in Rajasthan State Electricity Board V. Mohan Lal 11 The
7
.Pandey,J.N, Constitutional Law Of India 60 (Central Law Agency, Allahabad, 51st edn., 2014).
8
AIR 1954 Mad. 67
9
Supra note 3 at 86
10
AIR 1962 SC 1621
11
AIR 1967 SC 1857

10
board was constituted under electricity supply act, 1948 as a body corporate , by
transferring 2 department and supreme court held that the Rajasthan State
Electricity Board cover under the state under article 12 . They rejecting the rule
which was held in case if University of Madras V. Shantha Bai 12 “ ejusdem
generis” and they observed that the State under Article 12 is wider concept to
include within it every authority created by a statue and functioning within the
territory of India or under the control of Government of India and also stated
that there is no common genus running through the specifically named bodies
like executive or legislature of union and state government . 13 It would include
all constitutional or statutory authorities on whom the power or how much is the
Government control over it . Whether the government instruments and agencies
cover under state was cleared In case of Sukhdev Singh V. Bhagatram14
Supreme court held that the Oil and natural gas commission , Life insurance
Cooperation and Industries finance cooperation cover under meaning of State
under article 12 . In case of Raman Dayaram Shetty v. Internationl Airport
Authority15 , the international airport authority was incorporated under the
International Airport Authority Act , 1971 . The chairman and the member were
appointed by the central government and central government has power to
terminate any member or the chairman . It was aided by central government and
it was held that the International Airport Authority was an instrumental or
agency of central government thus it is a part of state under Article 12 .

In case of Som Prakash V. Union Of India16 the petitioner was an employee

of Burmah Shell Oil Storage Limited and got retired for a pension in 1973. The
company then in1976 vested in the Bharat Petroleum Cooperation Limited , his
pensioner rights such as he had, therefore transfer to the cooperation .
Honourable Supreme court held that Bharat Petroleum Cooperation registered
under the company act , 1956 will be cover under State under Article 12 .

12
Supra Note 8
13
Supra note 3 at 87
14
AIR 1975 SC 1331
15
AIR 1979 SC 1628
16
AIR 1981 SC 212

11
The proposition developed in R.D Shetty V. Union Of India 17 and Som Prakash
V. Union Of India18 were culled out in forms of tests to determine as to when
cooperation is subject to come under State . The tests were as follows

1. Entire share capital of cooperation is held by the Government .

2. Existence of deep and pervasive control of state

3. Whether cooperation enjoys the monopoly status which is protected by state

4. The functions performed by the cooperation are public importance or

function are public functions. In case Evans v. Newton19 it was held that Where
private individuals or groups exercise powers or carry on functions
governmental in nature, they become agencies or instrumentalities of the State.
The services rendered by a park are municipal in nature , so it will cover under
state.

5. When the department of Government is transferred to the cooperation, it

would be a strong factor supporting this inference of the cooperation being an
instrumentality or agency of state.

In Som Prakash V. Union Of India20 it would not include not only a statutory
body but also a non statutory body like a government company if it was found
that the body or authority was an agency or instrumentality of state .

The question regarding whether the non statutory body come under State under
Article 12 or not was discussed in detailed in case of Ajay Hasia V. Khalid
Mujib21 , question arises in this case was whether the Regional Engineering
Collage , Srinagar registered under the Registration Of Societies Act, 1898
which was Sponsored partially by Center and State Government . In case of any
misconduct the state government approval is required and the management of
collage is appointed by the State Government . Supreme Court held that the
17
Supra note 15
18
Supra note 16
19
1966 US 296
20
Supra note 16
21
AIR 1981 SC 487

12
Regional Engineering Collage , Srinagar will under the State under Article 12 .
The test of “deep and persuasive” control of government was seen ad according
to which states will be held.

The court also observed that the concept of instrumentality and agencies of
Government created by Statue but was equally applicable to a company or
society which are registered and in each case it would have to be decided on the
consideration of facts of cases.22

Other Authorities included under the term STATE under Article

12

There are large number of number of bodies, statutory and non statutory have
been held to be State under article 12

In case of Pradeep Kumar Biswas v. Indian Institute of Chemical

Technology23 In this case it was held that Council of Scientific and Industrial
Research(CSIR) is consider state under article 12 . The picture that ultimately
emerges is that the tests formulated in Ajay Hasia are not a rigid set of
principles so that if a body falls within any one of them it must, ex
hypothesis, be considered to be a State within the meaning of Article 12. 24

The Food Coperation set up under the Food Coperation Act, 1964 for purpose
of trading in foodgrains , partly funded by Central and State Government will
cover under the State under Article 1225.

22
Supra note 3 at 90
23
AIR 2002 SCC 111
24
https://www.delhilawacademy.com/pradeep-kumar-biswas-v-indian-institute-of-chemical-biology/
25
State of Punjab V. Raja Ram, AIR 1981 SC1694

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In case of Lal Sanga V. P.G.I26 , as The Post Graduate Institute of Medicial
Educational and Research Chandigarh was set up the PGI act ,1966 and it
funded by Central Government and Chandigarh Admiration , it was held that it
will cover the state under Article 12 .

All Nationalised Banks and Insurance Companies are under the State under the
Article 12 . Like in case of Ratul Das V. Oriental Insurance Co. Ltd. 27 It was
held that the nationalized insurance company registered under the General
Insurance Business (Nationalisation) Act, 1972 will cover the state under
Article 12 .

In case of Kul Bhushan V. Punjab National Bank and Ors28 it was held that
the Punjab national bank which is nationalised bank will cover under the state
under article 12 . In case of Bank of India V. O.P Swaranakar29, it was held
that the State Bank of India and its subsidiaries, being corporation have been
held to be an Authority of State under Article 12.

Applying the test discussed earlier , it was held that a Cooperative Bank
constituted and registered under the State Cooperative Societies Act is not the
instrumentality or agency of the state . Like in case of Satish Kumar V.
Punjab State Co-operative Bank Ltd.30 In this case Punjab and Haryana court
held that the test to determine whether the other authority is state or not
discussed in R.D Shetty V. International Airport Authority 31 were not followed
as the share capital of government only include 80 lakh out of 240croce
subscribed capital . There was no monopoly , they perform the banking function
like giving credit facilities . The board of director were appointed from member
of co-operative society only . Thus the Punjab State Co-operative bank ,
Ludhiana Central Co-operative bank and etc are not covered under Other
Authority under Article 12 .

A Co-operative society by itself is not a State until a government Officer

appointed by Central Government as an administrator or any other officer
26
AIR 1991 P&H
27
AIR 2008 Gau.180
28
(1979) IILLJ 86 Del
29
AIR 2005 SC 411
30
AIR 1981 P&H 282
31
Supra Note 15

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replacing the Managing Committee of society , then that cooperative will be
held as State

The National Agriculture Cooperative Federation of India is a cooperative

society registered under the Delhi Cooperative Societies Act , 1972 with the
object to develop the agriculture market or promote agriculture activates in
India. Which is managed by a Board Of Directors consisting of nominees of
Central Government or State Government was held to be state .

In case of U.P. State Coop. Land Development Bank Ltd. V. Chandra Bhan
Dubey32 , the Court held that, U.P. State Cooperative land development Bank
Ltd. was a cooperative society and registered under the Cooperative societies
act but it was under the control of the State Government and was an extended
arm of the government which lead this cooperative to be State under Article 12 .

In Zee Telefilms Ltd. V. Union of India 33 , a five-judges bench of the

Supreme Court examined the question whether BCCI comes under the
definition of the State or not. It was contended before the Court that the BCCI
should be treated as “State” because it controlled and regulated cricketers right
guaranted under article 19 (1) (g). Rejecting the contention outright, the Court
held that this right could be claimed only against the State. Article 19(1) (g)
applied only when it was established that the regulating authority in question
fell within the scope of ‘State’ under article 12 .

In case of Tekraj Vasandi V. Union Of India34 , the Supreme Court has held
the Institute of Constitutional and Parliamentary Studies as not being an
‘authority’ under Article12. The institute was receiving grants from the Central
Government and has the President of India, Vice-President and the Prime
Minister among its honorary member . 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.”

32
AIR 1999 SC 753
33
AIR 2005 SC 2677
34
AIR 1988 SC 469

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In Chander Mohan Khanna V. National Council Of Educational Research
And Training35 , it was held that the NCERT is not cover under State under
Article 12 .

In case of Unni Krishnan V. State of Andhra Pradesh36 , it was held by the

supreme court that the Private Aided educational institute either by recognition
or affilation to the University could not ever be called a State under Article 12 .

In case of SMT Sujata Gupta V. State Of Meghalaya37, it was held that

educational institute established by a linguistic miniority,even getting grants in
aid from government , didn’t come under meaning of state under article 12 as
government didn’t have deep and pervasive control over the working of such
school .

All the companies which are registered under Companies Act and in which the
government hold the 51% of share capital and under the control of Government
will be held as State . Companies like Indian Telephone Industries Ltd , Bharat
Earth Movers Ltd .

Local and Other Authorities outside India but under the Control of
Government of India

The words by Dr B.R Ambedkar, “ India would not discriminate, so far as the
fundamental rights of individuals were concerned between its own nationals and
those of other countries , which might come under the administration of india
under some international agreements .

In case of Masthan Sahib V. Chief Commissioner , Pondicherry38 , it was

held by the supreme court that the control envisaged by Article 12 was possible
only in case of a purely executive or administrative authority and not in case of
judicial or quasi judicial authority . The relief will of Fundamental Rights will

35
AIR 1992 SC 76
36
AIR 1993 SC 2178
37
AIR 2015 (NOC) 808 (MEG)
38
AIR 1963 SC 533

16
be against the executive order of authority working outside the territory of India
but under the control of Government of India .

In case of Sanjaya Bahel vs Union Of India & Ors39, it was held that the
Government of India has no control over the United Nation so United Nation is
not over the under the State under the article 12 .

Whether the 3rd organ will cover under the State ?

The definition of State under Article 12 of the Constitution does not explicitly
mention the Judiciary. Hence, a significant amount of controversy surrounds its
status vis-a-vis Part III of the Constitution. Bringing the Judiciary within the
scope of Article 12 would mean that it is deemed capable of acting in
contravention of Fundamental Rights. It is well established that in its non-
judicial functions, the Judiciary does come within the meaning of State.
However, challenging a judicial decision which has achieved finality, under the
writ jurisdiction of superior courts on the basis of a violation of fundamental
rights, remains open to debate . 40

In case of Naresh Shridhar Mirajkar V. State Of Maharashtra 41 , during the

trial the learned judge orally directed the petitioner that the evidence of witness
should not be published in the “Blitz” . The petitioner felt aggrieved and then
filed the case of infringement of his fundamental right of Freedom Of Speech
and Expression under Article 19(a) of Indian Counstitution . The Court held
that the fundamental right is not infringed by the order of the Court and no writ
39
AIR 2019 Del 981
40
https://www.lawctopus.com/
41
AIR 1967 SC 1

17
can be issued to High Court. So the Judiciary will not cover under the State
under Article 12 .

In case of Rupa Ashok Hurra V. Ashok Hurra42 , in this case the bench of 5
judges of Supreme Court has observed that no judicial proceeding could be said
to violative of Fundamental Rights . They also that the re-examination of the
case only where the judicial order was passed without jurisdiction, in violation
of the principles of natural justice, in violation of fundamental rights or where
there had been a gross injustice, under the inherent jurisdiction of the Court.

In may thus be stated that “Judiciary” while exercising its rule making power
conferred under the Article 145 would be considered state under article 12 43 .
But while performing its judicial function like giving judgements of cases it is
not so included in state .

The scope of article 32 and article 226 in reference to Authority . Article 226
has wider concept then of article 32 It is because Article 12 is relevant only for
the purpose of enforcement of fundamental rights under Article 32 whereas
Article 226 confers power on the High Courts to issue writs for the enforcement
of fundamental rights as well as non-fundamental rights

42
AIR 2002 SC 1771
43
Prem Chand Garg V. Execise Commissioner H.P AIR 1963 SC 996

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 Position of State In United States .

In United State constitution protects rights and liberties of the individuals

against the governmental actions. A State acts by its legislative, its executive, or
its judicial authorities. It can act in no other way. The constitutional provision,
therefore, must mean that no agency of the State, or of the officers or agents by
whom its powers are exerted, shall deny to any person within its jurisdiction the
equal protection of the laws. Whoever, by virtue of public position under a State
government, deprives another of property, life, or liberty, without due process
of law, or denies or takes away the equal protection of the laws, violates the
constitutional inhibition; and as he acts in the name and for the State and is
clothed with the State’s power, his act is that of the State. 44 . But the 13th
amendment of US constitution gives an exception . The 13 th amendment of US
constitution prohibits slavery and it could be enforced not only against the
governmental action but also against the private actions . In United States v
Cruikshank45, the United States Supreme Court recognized the state action
doctrine in dictum and stated that the fourteenth amendment prohibits a state
action only and not that of the private citizen. But this lead to increase in racial
discrimination in United States . However they enact many laws in protection of
civil rights but all were struck down and situation of racial discrimination
remains same . So the Court gradually expanded the definition of state action
and brought many private actions within its ambit. 46 However the doctrine of
state action needed to be expanded as the age of globalisation and privatisation,
the private individuals or entities deal with the liberties of the people. If the
courts take limited meaning of state action, it would become difficult for the
individuals to enforce their liberties against the private individuals or entities.
So that the Bills Of Rights are protected .

44
Minneapolis R. Co. v. Beckwith 129 US 26 (1889, Supreme Court of the United States)
45
92 U.S. 542 (1876)
46
http://epgp.inflibnet.ac.in/

19
 Conclusion

There have been many interpretation of state under Local authority and Other
Authority under Article 12 . Local Authority was cleared by court and test to
d00etermine was concluded under case of Union Of India V. R.C Jain . The
concept of other authority was determined in many cases like the cases of
University Of Madras where the test of “ejusdem generis” which was stuck
down in case of Rajasthan Electricity board and then the control of government
is seen while determining the state . Late in case of R.D Sheety V.
Internnational Airport Authority in which the court was observed several test to
determine whether the instrument or agency will come under state or not . At
many instances, courts have also contravened the fundamental rights and it is
also widely recognized that certain fundamental rights are more prone to be
violated by the Judiciary. So as US, India should also include the judiciary in
the State under Article 12 . However the test to determine the other authority as
state is dynamic in nature . It changed according to the facts of case .

20
 BIBLIOGRAPHY

1. Kumar, Narender, Constitutional Law of India ( Allahabad Law Agency,

Faridabad , 10th Edition,2020)
2. Pandey, J.N., The Constitutional Law of India ( Central Law Agency,
Allahabad , 51st Edition,2014)
3. www.delhilawacdemy.com
4.. http://epgp.inflibnet.ac.in
5. https://www.lawctopus.com

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