JUDICIAL EXPANSION OF

STATE UNDER ARTICLE 12

CONSTITUTIONAL LAW - NEW CHALLENGES 
MEANING OF STATE
• John Locke says that the purpose of state is for common good or good
of mankind. 
• A state is defined in international law as an independent political
entity occupying a define territory, the members of which are united
together for the purpose of resisting external force and preservation
of internal order.
• Maintaining the life and upholds the dignity of its individual
• Most of the fundamental rights are claimed against the state and its
instrumentalities and not against private bodies. Article13(2) bars the
state from making any laws infringing any fundamental rights. 
STATE UNDER ART 12
• Definition 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.
• Other Authorities under, Article 12 is defined neither in the Constitution nor in the
general clauses Act, 1897
• Is ambiguous in nature
• It is necessary to note that, the concept of State Action has been enlarged to bring
within its domain acts done by private persons or bodies exercising statutory
powers or, acts supported by the State, with or without legislative authority or in
abuse of such authority, or even where the State has become involved in private
action
TEST FOR DETERMINATION OF STATE

Principle of Ejusdem Generis 

• In University of Madras v Shantabai, Madras High Court evolved this principle
meaning, of the like nature. The authorities that performed government or
sovereign function can be included under Article 12.

• In Rajasthan State Electricity Board v. Mohan Lal, the court ruled that the
principle of  ejusdem generis cannot be applied to interpret this expression Body
created under a statue by the government will be considered as other
authorities under Article 12. The Supreme Court ruled that a state electricity
board, set up by a statute, having some commercial functions or discharge. This
is because under article 298 the government is empowered to carry trade and
commerce. 
TEST FOR DETERMINATION OF
STATE
2. Doctrine of Instrumentality 
• The Supreme Court in case of Ramana Dayaram Shetty v, International Airport Authority of India pointed out that,
The corporation acting as an instrumentality or agency of government is state under Art 12. 
• In the case of Ajay Hasia v. Khalid Mujib it was held that society registered under societies Act is state per se under
Art 12. 
1. If the entire share-capital of the body is held by the government, it goes a long way indicating that the body is an
instrumentality of the government;
2. If the body enjoys monopoly status which is State conferred or State protected, it is indicative of the fact that the
body is within the periphery of Article 12;
3. Where the financial assistance rendered by the government is so substantial, so as to meet almost the entire
expenditure of the body, it is indicative of the fact that the body is impregnated with governmental character;
4. Existence of deep and pervasive control of the government, qua the functioning of the body, affords an indication
that the body is State instrumentality;
5. If the functions performed by the body are of public nature, public character or public importance, and are closely
related to governmental functions, it is a relevant factor to treat the body as an instrumentality of the State.
TEST FOR DETERMINATION OF
STATE
• In the case of, Pradeep Biswas v. Indian Institute of Chemical Biology, a Seven-
Judges Bench of the Apex Court laid down the following test for the determination of
State:
• The test formulated in the case of Ajay Hasia v. Khalid Mujib, is not rigid in principle
that needs to be complied with in all cases without exception, to determine,
whether or not, a body or authority is a State;
• All cases are to be determined in the light of their respective cumulative facts, that is
to see, whether or not, a body or authority is financially, functionally and
administratively dominated by, or is under the control of, the government;
• The control should not be perfunctory, but it should rather be deep and pervasive;
• If the control is mere regulatory under a statute or otherwise, then the body or
authority cannot be termed as a State under the aegis of Article 12.
TEST FOR DETERMINATION OF
STATE
• G. Bassi Reddy v. International Crops Research Institute, held that,
the International Crops Research Institute (ICRI) is not a State within
the meaning of Article 12 of the Constitution of India as it has been
set up as a non-profit research and training centre to help developing
countries to alleviate rural poverty
• ICRI is neither set up by the government, nor is controlled or is
accountable to the government, and hence it is outside the sweep of
Article 12 of the Constitution of India, 1950.
 
TEST FOR DETERMINATION OF
STATE
3. Functional, Deep and Pervasive control
• The court in Som Prakash v. Union of India, it was held that,
determination in regards to whether or not a body corporate is a
State does not depends on the origin qua such body corporate in
statutory sense of the term, but on the basis of functional aspects vis-
à-vis such body corporate, thus it was held that the test is that of
brooding presence of the State behind the operations of the body,
whether statutory or not.
TEST FOR DETERMINATION OF
STATE
In the case of Zee Telefilms Ltd. v. Union of India,
• The capital, infrastructure, initial investment and financial aid is
provided by the State
• Works in the nature of research and development, in periphery of
governmental functions, but may or may not be in the domain of
sovereign functions
• A private body discharging a public duty
CONTI..
• The 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 under the Constitution; When
it regulates the right of a citizen as contained in Article 19(1) (a) of the Constitution of
India, 1950, available to the general public, viewers of the game of cricket in particular;
When it exercises de facto or de jure monopoly; When to a body or authority, the
State outsources its legislative power; and When a body is obliged with a positive
obligation of public nature.
TEST FOR DETERMINATION OF
STATE
• The Supreme Court of India in the case of, Board of Control for
Cricket in India v. Cricket Association of Bihar, These tests are of an
independent standing. In this case, the Apex Court held that BCCI
(Board of Control for Cricket in India) is not a State under the aegis of
Article 12 of the Constitution of India, 1950, for the control exercised
by the government over BCCI was merely regulatory in nature and not
pervasive. The court stated with affirmation that, if a private body
chooses to discharge functions or duties which are State functions or
public duties, which are not prohibited under law, then such a private
body may be considered as an instrumentality of the State. (2015) 3
SCC 251
TEST FOR DETERMINATION OF
STATE
• The court speaking through the bench of Justice T.S. Thakur and
Justice F.M. Ibrahim Kalifulla, held that, BCCI is amenable to the writ
jurisdiction of Article 226 of the Constitution of India, 1950, even
though admittedly, it is not a State within the meaning of Article 12 of
the Constitution of India. It was held that, BCCI is neither created by a
statute, nor any part of its share capital is held by the Government; no
financial assistance is given to the BCCI by the Government; and it is
not created by transfer of a government owned corporation.
TEST FOR DETERMINATION OF
STATE
4. Nationalized banks
•In the case of Indian Bank’s Association, Bombay v. Devkala Consultancy Service, the Supreme Court
of India held that, Indian Banks‟ Association and Banks which are created under the respective
Parliamentary Acts or are nationalised in terms of the Banking Companies (Acquisition and Transfer of
Undertakings) Acts, 1970 and 1980 are “State” within the meaning of Article 12 of the Constitution of
India, 1950.
•In State Bank of India, Canara Bank v. Ganesan, Madras High Court held that nationalised banks are
falling within the ambit of other other trees, the right to get salary is the right to property and the
nationalised banks should not act arbitrary and illegally with holding the salary of their employees for a
period during which they had worked. However private banks do not fall under the ambit of Article 12.
 
TEST FOR DETERMINATION OF
STATE
5. Registered societies
• In Sindhi Education Society v. Chief Secretary, Government of NCT of
Delhi, it was held that unless all the three aspects of state control-
financial control, managerial control, administrative control or
exercised by the state over any authority, society, organisation or
private body it will not be permissible to term that society,
organisation or body state. Does it can be seen that in case of
registered societies extensive state control is mandatory. The
functional test, only granting eight cannot play a prominent role.
TEST FOR DETERMINATION OF
STATE
6. Public Corporation
• In Sukhdev v. Bhagatram, where it was held that Life Insurance Corporation, Oil and
Natural Gas Commission and the Finance Corporation are statutory bodies within the
meaning of Article 12 of the Constitution of India. In R.D. Shetty v. International
Airport Authority of India, it was held that International Airport Authority of India is a
statutory body within the purport of Article 12 of the Constitution of India.
• In Som Prakash Rekhi v. Union of India, where it was held that, determination in
regards to whether or not a body corporate is a State does not depends on the origin
qua such body corporate in statutory sense of the term, but on the basis of functional
aspects vis-à-vis such body corporate, thus it was held that the test is that of brooding
presence of the State behind the operations of the body, whether statutory or not‟.
TEST FOR DETERMINATION OF
STATE
• CIWTC v. Brojo Nath Ganguly, cannot be lost track of. In this case, the
Supreme Court held as follows: “If there is an instrumentality or
agency of the State which has assumed the garb of a government
company as defined under Section 617 of the Companies Act, it does
not follow that it thereby ceases to be an instrumentality or agency of
the State. For the purposes of Article 12, one must necessarily see
through the corporate veil to ascertain whether behind that veil is the
face of an instrumentality or agency of the State.”
AUTHORITIES SITUATED OUTSIDE
INDIA:
• in the case of Lena Khan v. Union of India, it was held that, an
instrumentality or agency of the State having operations outside India cannot
comply with the municipal law as prevailing abroad, which is, in violation of
the provisions of the Constitution of India, 1950.
• In this case, the age of superannuation of air hostesses employed by Air India
in India was fixed at 35 years with extension till 45 years of age, however, air
hostesses employed outside India were allowed to continue beyond the age
of 45 years. It was held that, such discrimination should not be sustained
merely because it complies with the local law abroad (Section 6(4), the U.K.
Sex Discrimination Act, 1975). Air-India’s submission to maintain the same
age of retirement everywhere in future was sustained by the Apex Court
QUASI-JUDICIAL AUTHORITIES:
• In the case of, Kamala Mills v. State of Bombay, the Apex Court held that, if a
quasi-judicial body acts under an ultra-vires law or, outside its jurisdiction or,
ignores the mandatory rules of procedure prescribed under the relevant law for
time being in force or infringes the principles of natural justice and thereby affects
the fundamental rights, then its action can be quashed by the Court of Law.
• Deliberating further, the Constitution Bench of the Supreme Court of India, In the
case of, Sitaram v. Union of India, purposively held that, an act of the repository
of power, whether legislative or administrative or quasi-judicial, is open to
challenge if: it is in conflict with the Suprema Lex (the Constitution) or, the
Governing Act or the general principles of the law of the land.Thus, quasi-judicial
authorities come within the ambit of Article 12 of the Constitution of India, 1950,