State under Article 12 and the meaning of 'other authorities'

1. The text

Article 12 provides that unless the context otherwise requires, “the State” includes the Government and Parliament of India, 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.

Four categories, then, and the fourth is where the litigation is:

• the Union government and Parliament;
• State governments and State legislatures;
• local authorities — municipalities, panchayats, port trusts, improvement trusts, and similar bodies with local self-government functions;
• other authorities.

Two smaller points to note. The definition is inclusive, not exhaustive, so it is capable of expansion. And it applies “unless the context otherwise requires”, which leaves room for a different reading where an Article demands one.

2. The judiciary: is a court “State”?

Partly. In its rule-making and administrative capacity a court is State, and its rules can be tested against fundamental rights. In its judicial capacity the settled view is that a judicial decision of a competent court does not ordinarily violate fundamental rights, and cannot be challenged as State action on that footing. Keep the distinction ready; it is a common short note.

3. “Other authorities”: the line of cases

This is the heart of the topic, and it is best learned as a movement in three stages — narrow, then wide, then disciplined.

Stage one: statutory power

In Rajasthan State Electricity Board v. Mohan Lal, 1967 INSC 82, AIR 1967 SC 1857, the Court rejected the earlier suggestion that “other authorities” should be read ejusdem generis with the preceding words, that is, as limited to bodies performing governmental functions. It held that a body created by statute and clothed with power to make rules and regulations having the force of law is an authority within Article 12, whether or not it performs a commercial function. The Electricity Board was therefore State.

Stage two: the instrumentality test

In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, 1975 INSC 44, (1975) 1 SCC 421, statutory corporations — the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation — were held to be State, on the reasoning that they were instrumentalities or agencies of government.

The test was then stated in the form usually reproduced in answers. In Ajay Hasia v. Khalid Mujib Sehravardi, 1980 INSC 218, (1981) 1 SCC 722, a society registered under the Societies Registration Act, running an engineering college, was held to be State. The Court set out indicators: whether the entire share capital is held by government; whether financial assistance from the State meets almost the whole of the expenditure; whether the body enjoys a monopoly conferred or protected by the State; whether there is deep and pervasive State control; whether the functions are of public importance and closely related to governmental functions; and whether a government department has been transferred to the body. What matters is not the form of the body but whether it is an instrumentality or agency of the State.

Stage three: discipline

The expansion could not continue indefinitely, and a seven-judge Bench drew the line in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 INSC 202, (2002) 5 SCC 111. The question was whether the Council of Scientific and Industrial Research is State. The Court held that the Ajay Hasia indicators are not a rigid formula to be mechanically applied; the true test is whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, and that such control must be particular to the body and pervasive. Control that is merely regulatory, of the kind government exercises over many private bodies, is not enough. CSIR was held to be State on the facts.

The limit was then illustrated in Zee Telefilms Ltd. v. Union of India, 2005 INSC 59, (2005) 4 SCC 649, where the Board of Control for Cricket in India was held not to be State. The BCCI is not created by statute, no share capital is held by government, and there is no financial or administrative domination, even though the Board exercises enormous power over the sport. The Court noted that a remedy may still lie under Article 226 against a body discharging public duties — a useful sentence, because it shows the consequence of a body falling outside Article 12 is narrower than students often assume.

4. Putting the tests together

For an answer, the sequence is:

• Is the body created by or under a statute, and does it have power to make binding rules? (Rajasthan SEB)
• If not, is it an instrumentality or agency of the State on the Ajay Hasia indicators?
• Applying Pradeep Kumar Biswas, is there financial, functional and administrative domination by government, particular to this body and pervasive rather than merely regulatory?
• If the answer is no, the body is not State — but Article 226 may still reach it if it discharges a public duty. (Zee Telefilms)

How this is examined

Extremely often, because it suits both formats. As a short note: definition of State under Article 12, or “other authorities”, or whether the judiciary is State. As an essay: trace the judicial interpretation of “other authorities” under Article 12. As a problem: a given body — a university, a co-operative society, a company with government shareholding — and whether a writ lies against it.

For the essay, the marks are in the movement, not the list. Show the narrow statutory test giving way to the instrumentality test, the instrumentality test becoming too elastic, and the seven-judge Bench in Pradeep Kumar Biswas restoring discipline. Then close with Zee Telefilms as the worked example of a body that fails the test yet is not beyond all judicial control.

Now go and read the questions themselves: Constitutional Law I past question papers.