ARTICLE 12 OF

THE INDIAN CONSTITUTION

PART III

In what state is the “state”?

WHAT DOES ARTICLE
12 SAY?
 “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.”
 KEY TERMS IN THE ARTICLE
1.Government (Union and state)
2.Parliament and state legislature
3.Local authorities
4.Other authorities
5.Territory of India
6.Control of the government of India
 DEFINITION OF THE TERMS
 Parliament: The parliament comprises of the President of India, the lower house of the
parliament that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya
Sabha.
 Executive: It is that organ which implements the laws passed by the legislature and the policies
of the government. The rise of the welfare state has tremendously increased the functions of the
state, and in reality, of the executive. In common usage, people tend to identify the executive with
the government. The executive includes the President, Governor, Cabinet Ministers,
Police, bureaucrats, etc.
• Legislature: The legislature is the government's organ that enacts the government's laws. The
agency has the responsibility to formulate the will of the state and vest it with legal authority and
force. In simple words, the legislature is that organ of the government which formulates laws.
Legislature enjoys a very special and important role in every democratic state. It is the assembly
of the elected representatives of the people and represents the national public opinion and the
power of the people.
• Government: The law-making or legislative branch and administrative or executive branch and
law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house)
and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the
state and exercises his or her power directly or through officers subordinate to him. The Judiciary
is formed by the Supreme Court, High Courts, and many civil, criminal, and family courts at the
district level.
• State Legislature: The legislative body at the state level is the State Legislature. It comprises the
state legislative assembly and the state legislative council.
 Local Authority: “Local Authority shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the Government within the
control or management of a municipal or local fund.
 Other Authorities
 The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution
nor in the General Clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation
has caused a good deal of difficulty, and judicial opinion has undergone changes over time.
 The functions of a government can be performed either by the governmental departments and
officials or through autonomous bodies which exist outside the departmental structure. Such
autonomous bodies may include companies, corporations, etc.
 So, for the purpose of determining what ‘other authorities’ fall under the scope of the State, the
judiciary has given several judgments as per the facts and circumstances of different cases.
 ARTICLE 12 & RELATED
CASES
 Rajasthan Electricity Board v/s Mohanlal & Ors 1967

 ZEE Telefilms V. Union Of India 2005e

lefilms Ltd v. Union of India
 Board Of Control For Cricket vs Cricket Association Of Bihar & Ors 2016
 RAJASTHAN ELECTRICITY BOARD V/S MOHANLAL & ORS

Facts Of The Case

 Mohanlal and the other 10 workers were all provisionally placed at the disposal of the Electricity
Board of Rajasthan, Jaipur by a notification issued by the Government on 12th February 1958,
purporting to exercise its powers under section 78A of the Electricity (Supply) Act, 1948. Previously
all of them were permanent employees of the State Government holding posts of Foremen in the
Electrical and Mechanical Departments. A direction was included in the notification that new grades
and service conditions were to be framed for those employees whose services were transferred to the
Board under its regulation.
 Employees were to be given the option of accepting these new grades and service conditions,
continuing in their existing grades and service conditions, except in regard to conduct and disciplinary
rules, or obtaining relief from Government service by claiming pension or gratuity as may be
admissible under the Rajasthan Service Rules on the abolition of posts. The Board did not create any
additional grades or service criteria until the present lawsuit arose.
 Mohanlal worked under the Board for a period of 2 years and was then deputed by the State
Government by its order dated 27th January, 1960, to the Public Works Department of the
Government. The Government issued an order to the Secretary of the Board on August 10, 1960,
suggesting that Mohanlal and 10 other workers would be considered as on deputation to the
Board. The Public Works Department issued an order on November 24, 1962, restoring Mohanlal
to his parent department with effect from December 1, 1962, although the deputation time was
later extended.
 He was returned to the Board from the Public Works Department on July 11, 1963, posting him
as a Foreman. While working in the Public Works Department, the Board had promoted the other
10 employees to Assistant Engineers, while he was promoted to Assistant Engineer in the Public
Works Department. Mohanlal raised a request to the Board as well as the Government for his
promotion as Assistant Engineer under the Board, which was turned down.
 Mohanlal then filed a petition in the Rajasthan High Court under Articles 226 and 227 of the
Constitution. Mohanlal argued that he was entitled to equal treatment with the other 10 workers
and that the Board had acted in contravention of Articles 14 and 16 of the Constitution by not
considering him for promotion alongside them. The High Court acknowledged Mohanlal’s
argument, overturned the decision promoting the other 10 workers and ordered the Board to
reconsider the promotions after considering Mohanlal’s arguments.
ISSUES BEFORE THE COURT

1. Whether The Electricity Board be considered under the definition of “State” under Article

12 of the Indian Constitution?
2. Whether the Board violated the provisions of Article 14 & 16 of the Indian Constitution as
raised by the Respondents?
3. Whether Respondent Mohanlal was an employee of the Electricity Board?
PROVISIONS IN THIS CASE

• Article 14 of the Indian Constitution provides Equality before the Law & Equal Protection of
Law. It states that every person is equal before the law and should get equal protection of the law,
no person shall be discriminated on the basis of religion, race, caste, sex or place of birth.
• Article 16 of the Indian Constitution provides Equal Opportunity in aspects of Public
Employment. It provides that there shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State. Also, No citizen shall, on
grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be
discriminated against in respect to any employment or office under the State
• Articles 226 & 227 of the Indian Constitution defines the powers of the High Courts. It states
that every High Court shall have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction (except a court formed under a law related
to armed forces).
Also, it empowers the high courts to issue, to any person or authority, including the government
(in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto, certiorari or any of them.
JUDGEMENT
 The Supreme Court held that the term “other authorities” under Article 12 should include all authorities
created by the Constitution and other statutes which are empowered by law. The statutory authority does not
need to be engaged in performing governmental or sovereign functions, the court also observed that the
Rajasthan Electricity Board, in the instant case had the power to give directions, the disobedience of which
was punishable as an offense.
 The lien of Mohanlal was on a post under the Board, according to a Government order dated January 27,
1960. Even according to the Board, the phrase “reversion” in the order plainly meant that Mohanlal was
being transferred back to his parent Department from a Department where he had been on deputation or
temporarily.
 Also, there is no evidence that any order was made permanently transferring the other employees to the
Board after their services were provisionally put at the disposal of the Board by the notification of February
12, 1958, and yet they were recognized as permanent employees of the Board and were promoted to the
position of Assistant Engineer from the position of Foremen on that basis.
 Hence, it is found that there were no errors committed by the High Court in holding that Mohanlal was in
service of the board as others and were being governed by identical rules. It is clear that Mohanlal was
entitled to be considered for promotion under the Board on the basis of equality with other employees.
 The fact that the Board is obligated to engage in some trade or commerce operations
under the Electricity Supply Act does not imply that the Board should be excluded
from the meaning of the term “State” as used in Article 12. Also, there are clauses in
the Electricity Supply Act that clearly establish that the Board’s powers include the
ability to issue instructions and that non-compliance is a criminal offense.
 The term “other authorities” is broad enough to embrace any authority established
by legislation and operating inside India’s territory or under the supervision of the
Indian government. There was no need to limit this interpretation in the context
of Article 12 of the Constitution when the words “other authorities” are used. Hence,
the Board was clearly an authority under the definition of ‘State’ in Article 12 of the
Indian Constitution.
 ZEE TELEFILMS V. UNION OF INDIA 2005

 The Board of Control for Cricket in India is a society registered under the Tamil Nadu Societies Registration Act which is said to be

recognized by the Union of India. The ministry of youth affairs and sports in the year 2004 floated a notice inviting tender for the
grant of exclusive television rights for a period of four years pursuant to which several entertaining groups including Zee telefilms
Limited and ESPN Star Sports gave their offers.  The board accepted the offer of Zee telefilms after holding some negotiations.
However, this was challenged by ESPN Star Sports Before the Bombay High Court under article 226 of the Indian Constitution. 
Later on the 21st of September, the board stated that it purported to have canceled the entire tender process on the premise that no
concluded contract was reached between the parties as no letter of intent has therefore been issued. Owing to the cancellation of
the tender, ESPN Star Sports withdrew its petition from the Bombay High Court and Zee telefilms filed a writ of mandamus under
article 32 of the constitution to direct the board to act as per the terms and conditions of the tender.  They also stated that such a
withdrawal of the tender notice by the board was an arbitrary act and stands against the principles of article 14 of the constitution.
ISSUES OF THE CASE
• Is BCCI a “state” within the ambit of Article 12 of the Indian constitution?

• Does the arbitrary action of BCCI violate the fundamental rights of Zee?
JUDGEMENT
 The Board of Control for Cricket in India (BCCI) ,a society registered under the provisions of Tamil Nadu Registration
of Societies Act,1975 is not a State within the meaning of Article 12 of the Constitution of India but it is amenable to
the writ jurisdiction of Article 226 of the Constitution in view of duties and functions performed by BCCI of public
nature. The functions of the Board are clearly public functions till such time, the State intervenes to take over the same.
Also, the Government of India has granted de-facto recognition to the Board and continues to so recognize the Board
as the Apex National Body for regulating the game of Cricket in India. The  recognition granted by the Government of
India made the Board able to represent itself as the Indian cricket team and  the team could not be able to present as the
Indian cricket team in the international cricket arena if the board does not have got the recognition. The Board has to
seek prior permission and approval from the Government of India whenever it has to travel outside the country to
represent the country. Also,  in the year 2002 the Government had refused permission to the Board to play cricket in
Pakistan.
 Thus, in the above view of the matter, Board cannot be held to be a State for the purpose of Article 12. Consequently,
this writ petition filed under Article 32 of the Constitution is not maintainable and the same is dismissed.
 The majority view  held that Board cannot be held to be a State for the purpose of Article 12 . Thus, the Writ filed
under article 32 of Constitution is not maintainable. Hence, the petition is dismissed.
BOARD OF CONTROL FOR CRICKET VS CRICKET ASSOCIATION OF BIHAR & ORS

  After looking at a number of judgments and decisions of various benches, the Learned Bench observed that even
though the Board performed important public functions that were akin to State functions, (para 29 of the
judgment), they can come under provisions of Article 226 and not Article 32. In BCCI, the Learned Bench
formulated a "nature of duties and functions" test which could be the Indicia for determining criteria for
categorizing an institute as a "State". As seen from para 30 of the judgment, the Court detailed the number of
functions that the Board performed and concluded that these functions were being carried out with the tacit
concurrence of the State Government/Central Government who were supportive of the activities of the Board. The
functions of the Board, therefore, are clearly in the public domain, which can be taken over by the State at any
time, despite the fact that they are ostensibly a private body. Therefore, the Courts concluded keeping in mind all
the public functions that although BCCI can be covered under Article 226, it may not be considered to be "State"
for the purposes of Article 12. All sports federations and other institutions having a similar mode of operations
have, therefore, been covered by the instant judgment.
 This while liberalizing Sports Administration within the Indian sub-continent, is nevertheless an effective
arrangement till future determinations finally hold Sports federations to be "State". It is not in dispute that the
jurisprudence of "State" has shifted from holding that the sports federations are not "State" to stating that "while
they may not be stated, they are nevertheless amenable to Article 226." It is now, but a short step to holding that
sports federation can be considered to be "State" in the years to come.
PROVISIONS IN THE CASE
 Under Article 32 of the Indian constitution, every citizen of India has been given the right to
seek constitutional remedy from the Supreme Court if they have been deprived of their
fundamental rights. The Supreme Court is responsible for the administration of justice and
also acts as the guardian of the constitution and the protector of fundamental rights. It would
be meaningless to grant fundamental rights but not provide remedies for the enforcement of
the rights if they are violated. 
 IS JUDICIARY A STATE?
 Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial authorities
the power to pronounce decisions that may be contravening the Fundamental Rights of an individual. If it
was taken into the head of ‘State’, then as per the article, it would be by the obligation that the
fundamental rights of the citizens should not be violated. Accordingly, the judgments pronounced by the
courts cannot be challenged on the ground that they violate the fundamental rights of a person. On the
other hand, it has been observed that orders passed by the courts in their administrative capacity
(including by the Supreme Court) have regularly been challenged as being violative of fundamental
rights. In Rupa Ashok Hurra v. Ashok Hurra Case, SC reaffirmed that Fundamental Rights cannot be
violated by any judicial proceedings and also that Superior Courts of Justice do not fall under the ambit
of Article 12.
 The answer to this question lies in the distinction between the judicial and non-judicial functions of the
courts. When the courts perform their non-judicial functions, they fall within the definition of the ‘State’.
When the courts perform their judicial functions, they would not fall within the scope of the ‘State’.
 So, it can be noted that the judicial decision of a court cannot be challenged as being violative of
fundamental rights. But, an administrative decision or a rule made by the judiciary can be challenged
as being violative of fundamental rights, if that is supported by facts. This is because of the distinction
between the judicial and non-judicial functions of the courts.
CONCLUSION
 The Constitution of India not only gives a fundamental right to the citizens but also imposes the duty on

the state to ensure that fundamental rights are protected. The court through its interpretations has widened
the scope of the term State to include a variety of statutory and non-statutory bodies under its umbrella.

 The need to determine what falls within the meaning of state is, to assign the party on whom the duty to

implement such right is placed upon. Not only that, the definition of state under Article 12 has several
words which may not have definite meanings, words such as local authorities, control of the government,
other authorities, etc. and as seen in the above sections, the courts have, through the course of their
judgments,  described the extent of the article by laying down a test and discussing the meaning of the
terms.