October 19, 2021

Article 12 of The Constitution – Case Laws

Constitution of India

Naresh Sridhar Mirajkar v. the State of Maharashtra (1966), the issue rose before the court was whether a judicial order could be held in violation of fundamental rights enshrined in our Constitution and if such judicial order amenable to writ? The court, in this case, held that

It is inappropriate to assume that a judicial decision pronounced by a court of competent jurisdiction can affect the fundamental rights of the citizens. What the judicial decisions purports to do is to decide the controversy between the parties brought before the court and nothing more.”

Therefore, the judiciary for discharge of its judicial functions cannot come under the definition of ‘state’ and is not amenable to the writ.

  • In the case of Rajasthan Electricity Board v. Mohan Lal (1967), The Supreme Courtlaid down the test for determining whether the bodies would come under the ambit of ‘other authorities’. The court held that if an authority:
  • has the power to issue directions and any offense that is against them is punishable by law
  • has the power to make rules that shall have a statutory effect
  • is an agency or instrumentality of state for carrying out such business or trade which otherwise would have been carried out by the state departments, such authorities would come within the ambit of ‘other authorities’ and hence would be considered ‘state’.

In this case there was a dispute regarding the promotion between the Rajasthan State Electricity Board and some of the workmen during which Article 14 and Article 16 claims were raised. The lead-in question that was raised was if the Board fell under the purview of Part III of the Constitution and if it can be referred to as “State” under Article 12.

 In the case of Sukhdev Singh v. Bhagatram (1975), the court had to decide whether ONGC (Oil and Natural Gas Corporation), LIC (Life Insurance Corporation of India) and IFC (International Finance Corporation) would come within the ambit of ‘state’ under Article 12.’ The bench was led by 5 judges bench. It was found that a huge financial support was given to these agencies by the Government and also that the Government had a high degree of control in the working of these organizations.

The court, in this case, followed the test laid down by the court in the case of Rajasthan Electricity Board and held these authorities to be ‘state’ as they came within the meaning of ‘other authorities’ under Article 12.

 Another case, Sabhajit Tewary v. Union of India (1975) was decided by the same bench and on the same day on which Sukhdev Singh’s case was decided.

In this case, the question before the court was whether the Council of Industrial and Scientific Research(CISR), which is registered under the Societies Registration Act, 1898 would fall within the definition of ‘state’ under Article 12. The Supreme Court observed that a body would be ‘state’:

  • When it is discharging essential state functions and
  • When it is under the pervasive and high degree control of the Government.

The court held CISR not to be ‘state’ as per the above said requirement.

 In R.D Shetty v. Airport Authority of India (1979) the bench was headed by Justice P.N Bhagwati who gave 5 Point test to determine if a body is an agency of the state or not. The following points are the grounds for the test:–

  1. The Financial resources of the State (where State is the main funding source i.e. the government holds the entire share capital, if yes then the agency falls under the ambit of Article 12 of the Constitution).
  2. If the State has a deep and pervasive control in the working of the agency
  3. The function of such agency should have public importance and hence has a governmental character.  
  4. A department of the Government when transferred into a corporation.
  5. When the State confers a ‘monopoly status’ to the agency and is therefore protected by it

These grounds of the test are only illustrative and not conclusive in its nature and hence are to be approached with great care and caution.

In Som Prakash v. Union of India (1980), the Supreme Court held that a Government company (Bharat Petroleum Corporation) fell within the meaning of the expression ‘the State’ used in Article 12.

The expression ‘other authorities’ will include all constitutional or statutory authorities on whom powers are conferred for the purpose of promoting economic activities. It is not only confined to statutory corporations alone but may include a government company, a registered society, or bodies which have some nexus with the government.

However, the important question that was raised before the Court was whether a private corporation fell within the ambit of Article 12. Unfortunately, the answer is yet to be decided.

 In A.R.Antulay v. R.S.Naik (1988), the court held that

If incidentally or indirectly, the judicial order of a competent court affects the fundamental rights of a person, then the remedy against such a mistake is not to allege a violation of the fundamental  rights and approach the courts under Article 32 or 226, but to allege that the decision of the court is not consistent with the fundamental rights and approach the appropriate court with such allegations in appeal or review.”

Considering these factors, court held that judiciary in exercise of its judicial functions does not come within the definition of ‘state’ under Article 12.

 In Rupa Ashok Hurra v. Ashok Hurra (2002) the Supreme Court reaffirmed and thereafter ruled that no judicial proceeding is said to be violative of any of the Fundamental rights and that it is a settled fact that the superior courts of justice does not fall in the category of ‘state’ or ‘other authorities’ under Article 12.


This gave the thesis that a Superior Judicial body would not fall within the definition of State under Article 12 of the Constitution when it is acting judicially. But when the superior judicial body performs any administrative functions like conducting examination, it will then fall within the definition of “state” under Article 12 and that remedy against it would only be available in case any of the Fundamental Rights are violated.

 In Pradeep Kumar Biswas v. the Indian Institute of Chemical Biology(2002), the question was whether CISR was an instrumentality of the state or comes within ‘other authorities’ under Article 12 or not.

It was held that actually there is no stern rule that every registered society has to have any connections with the government in order to be declared as ‘state’. If any of the objective tests which were laid down in the case of Ajay Hasia, if not fulfilled, then the ground must be whether the body in question is functionally, financially, and administratively held by the government. If this condition is fulfilled, then also the body would come under ‘other authority’ and hence would be ‘state’ under Article 12.

The case of Pradeep Kumar Biswas acts as a precedent for all further cases related to the interpretation of ‘other authorities’.

 Zee Telefilms v. Union of India (2005), when the issue came before the court if Board for Control of Cricket (BCCI) is a state or not, the court again applied the tests laid down in Ajay Hasia and Pradeep Kumar’s case. That the board was not formed having the share capital held by the government not it was created under any statute. Also the board did not perform any function of the government which shall help public at large. Hence it was held BCCI does not fall within the ambit of Article 12 of the Indian Constitution.

The Delhi High Court in its judgment in Sanjaya Bahel v. Union of India & Others (2019) case, that the United Nations cannot be referred to as a “State” within the ambit of Article 12 of the Constitution of India and it is not amenable to the jurisdiction of the Court underneath Article 226 of the Indian Constitution. The case was led by a single judge bench of Justice Suresh Kumar Kait before whom a petition came regarding the protection that is enjoyed Under the United Nations (Privileges and Immunities) Act, 1947. The above petition was filed by a former UNO employee who was held guilty of misconduct and was awarded imprisonment and probation. 

The petitioner in his defense wrote to the Ministry of External Affairs to initiate a legal proceeding against the United Nations Organization. The court held that the petitioner’s claim is not maintainable as the Organization does not fall within the ambit of Article 12 of the Indian Constitution.

  • The court in its judgment says that the United Nations Organization which is an international body cannot be treated as “instrumentality” and or an “agency” of the Government.”
  • In our constitution, under Part III from Article 12 to Article 35, there is a list of Fundamental Rights given. The same is enshrined in our constitution to ensure a just society which is ruled by law; not tyrant. These Fundamental Rights prevent the abuse of powers by Authorities. Hence, the citizens need protection from the acts of the State.
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