Constitution of India (Cases related to the Concept of State Article 12)

Constitution of India (Cases related to the Concept of State Article 12). Cases related to the Concept of State

Cases related to the Concept of State

Prepared by Assist. Professor Rekha Khandelwal

Part – III Fundamental Rights ( General)

Cases related to the other authorities ( The Concept of State Article 12)

Constitution of India

Fundamental Rights ( An Introduction)

The Concept of State ( Article 12)

Question- Whether the University is a State or not?

Question – Whether Judiciary is State or not ?

Question – Whether BCCI is State or not?

Cases related to the Concept of State Article 12

In University of Madras v. Santa bai,[1] AIR 1954 Mad. 67 :

Restricted Interpretation. It is held that authorities exercising governmental or sovereign function would only be covered under other authorities. It could not include persons, natural or juristic, such as , a University unless ‘ maintained by the State’. The decision was on the basis of the principle of ejusdem generis or things of like nature

In Ujjambai v. State of U.P [2]AIR 1962 SC 1621

Liberal interpretation – The Court rejected the interpretation of the expression ‘ other authorities’ given by Madras High Court on the basis of ejusdem generis and held that no restriction can be assigned to the interpretation of the term.

 In Electricity Board v. Mohan lal[3] AIR 1967 SC 1857,

It was held that it is not necessary for an authority to be engaged in sovereign or governmental function. So, the expression ‘other authorities’ will include Rajasthan Electricity Board, Cochin Devasom Board, Co – operative Society.

Sukhdev Singh v. Bhagatram[4] AIR 1975 SC 1331

The Supreme Court followed the same test given in Electricity Board Rajasthan’s case and held that The Oil and Natural Gas Commission (ONGC), Life Insurance Corporation, (LIC), and Industrial Finance Corporation (IFC)  are authorities within the meaning of Article 12 of the Constitution and therefore , they are ‘State’.

Most Imp. Case

In R.D Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 [5]

More broad and Liberal Interpretation-

The Court held that If a body is an agency or instrumentality of government it may be an ‘ authority’ within the meaning of Article 12.

In the case the Court laid down the following five tests for determining whether a body is an agency or instrumentality of the Government:-

  1. Financial resources of the State is the Chief funding source, i.e. the entire share capital of the corporation is held by Government,
  2. Existence of deep and pervasive State control,
  3. Functional character being Governmental in its essence, i.e., the functions of the corporation are of public importance and closely related to governmental functions.
  4. A department of Government is transferred to a corporation,
  5. Whether the corporation, enjoys monopoly status which is State conferred or State protected.

However, the Court held these not conclusive but illustrative only and would have to be used with care and caution.

Som Prakash v. Union of India,[6] AIR 1981 SC 212

The Court held that a government company ( Bharat Petroleum Corporation) comes within the meaning of the expresssion ‘ the State’ used in Article 12.The expression ‘ other authorities’would include all constitutional or statutory authorities on whom powers were conferred for the purpose of carrying commercial activities or bodies created for the purpose of promoting economic activities.The expression ‘other authorities’ was not confined only to statutory corporations alone but would include a government company, a registered society, or bodies which had some nexus with government.

In U.P. Warehousing Corporation v. Vijay Narain[7] (1980) 3 SCC 459

It was held that the U.P. Warehousing Corporation constituted under a statute and owned and controlled by the Govrnment is an agency or instrumentality of the Government and therefore, “ the State” within the meaning of Article 12.

Imp. Case

 In Ajay Hasia v. Khalid Mujib Sehravardi[8] AIR 1981 SC 487

It is held that a Society registered under the Societies Registration Act, 1898, is an agency or ‘instrumentality of the State’ and hence a ‘State’  within the meaning of Article 12.The test is not as to how the juristic person is created but why it has been brought into existence. A Corporation may be statutory corporation created by a statute or a government company formed under the Companies Act , 1956 or a Society registered under the Society registered under the Societies Registration Act, 1860, or any other similar statute.


In B. S. Minhas v. Indian Statistical Institute,[9]
( 1983) 4 SCC 582

It is held that the Indian Statistical Society, a society registered under the Societies Registration Act, 1860 being under the complete control of the Government of India is an instrumentality of the Central Government and therefore, an authority within the meaning of article 12 of the constitution.

In S.M. IIyas v. ICAR,[10](1993) 1 SCC 182

 It is held that the Indian Council of Agricultural Research is a state within the meaning of article 12 of the Constitution.

In Central Inland Water Transport Corporation v. Brojo Nath Ganguly[11] (1986) 3 SCC 156

The Court applied the test and held that the Central Inland Water Transport Corporation, a government company which was wholly owned by the Central Government and managed by Chairman and Board of Directors, appointed and removable by Central Government,  was the “state” within the meaning of article 12. 

In Sheela Barse v. Secretary, Children’s Aid Society,[12] (1987) 3 SCC 50.

The court held that the Children’s Aid Society, Bombay registered under the Societies Registration Act, 1860 was an instrumentality of the State and fell within the expression ‘the state’ within the meaning of article 12.

In MC Mehta v. Union of India[13] (1987)1SCC 395

The important question which was raised before the court was whether a private Corporation fell within the ambit of article 12.Although it was not finally decided by the court but it stressed the need to do so in future.  

In Tekraj Vasandi v. Union of India [14](1988) 1SCC 236

It has been held that the “Institute of Constitutional and Parliamentary Studies”, A society registered under the Societies Registration Act, 1860, it is not a State within the meaning of article 12. it is a voluntary organisation not an agency or an instrumentality of the State.

In Shri Kona Seema Co-operative Central Bank Limited v. N. Seetharam Raju,[15] AIR 1990 AP 171

 It is held that the Co-operative Bank registered under the A.P. Co-operative Societies Act is not a “state” within the meaning of article 12 as the functions of the bank was not of public importance and not closely related to governmental function. The bank’s main object was to raise funds to finance its members.

In Chandra Mohan Khanna v. NCERT[16] AIR 1992 SC 76

 It is held that National Council of Educational Research and Training is not a State within the meaning of article 12 of the Constitution. It is a society registered under the Societies Registration Act. The object of the NCERT is to assist and advise the  Ministry of Education and Social Welfare in the implementation of the governmental policies and major programmes in the field of education particularly School Education. These activities are not whooly related to governmental functions. The governmental control is confined only to proper utilisation of the grant. It is an autonomous body.

Most Imp. Case

In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[17] (2002) 5 SCC 111

A Seven judge bench of the Supreme Court by a majority of 5:2 has overruled the decision in Sabhajit Tewari’s Case and held The Council of Scientific and Industrial Research (CSIR) is an instrumentality of the State within the meaning of article 12 of the Constitution. The majority held that even though it was formed under the Registration of Societies Act, 1860, yet it is a ‘state’ because the government had overriding control over the organisation. The object incorporated in Memorandum of Association of CSIR “manifestly demonstrates that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned development in the country.”

 The Government of India has a dominant role in the governing body of the CSIR. All the members of the governing body, except ex- officio members, are nominated by the President and their membership can also be terminated by him. The Prime Minister is the ex-officio President. The governing body also has the powers to make rules, amend or repeal the by-laws of CSIR but only with the sanction of Government of India.

In G. Bassi Reddy v. International crops Research Institute[18] AIR 2003 SC 1764

 It has been held that the International Crops Research Institute is an international organisation and has been set up as nonprofit Research and Training Centre to help developing countries to alleviate rural poverty and hunger in various ways is therefore, not a ‘state’ within the meaning of article 12 of the constitution. It is not set up,not controlled by the government and gives the service to a large number of countries voluntarily.

In V.K. Srivastava v. U.P. Rajya Karmachari Kalyan Nigam[19] AIR 2005 SC 411

It is held that the U.P. Rajya Karmchari Kalyan Nigam is an agency and instrumentality of State and therefore, is a State within the meaning of article 12 of the constitution.

In Assam Small Scale Industries Development Corporation Limited v. J. D. Pharma – ceuticals,[20] AIR 2006 SC 131

It is held that the Assam Small Scale Industries Development Corporation Limited is a statutory body and is State within the meaning of article 12 of the constitution.

In Punjab Water Supply and Sewerage Board v. Ranjodh Singh[21]  AIR 2007 SC 1082

It is held that an autonomous body is a State within the meaning of article 12 of the constitution. The statutory bodies are bound to apply the rules of recruitment laid down under statutory rules. 

In Lt. Governor of Delhi v. K.Sodhi [22]AIR 2007 SC 2885.

The supreme court held that the State of Council of Educational Research and Training SCERT is not a State within the meaning of article 12 of the constitution. The Court discussed the Bench decision of Pradeep Kumar Biswas, where it had held that each case would be decided in the light of cumulative facts to determine if a body is financially, functionally and administratively dominated by or under the control of the Government.  The Supreme Court observed that the SCERT was fully funded by the Government and is an autovomous in its administration and had control over finances and, therefore, held that it was not covered by article 12 of the Constitution. 

In state of Assam v. Barak Upatyaka  D.V. Karmchari Sansthan[23] AIR 2009 SC 2249 

The Supreme Court has held that the financial assistance provided by the State Government in the form of grant in aid Assam Cooperative Society continuously for some years does not make the society a State within the definition of State under article 12 of the Constitution and therefore, the State would not be responsible to bear and pay salaries and allowances of its employees by extending aid forever.

Satimbla Sharma v. Saint Paul’s Senior Secondary School,[24]AIR 2011 SC 2926

 Unaided minority Schools over which the Government has no administrative control are not “State” due to their authority under article 30 (1) of the Constitution within the definition of  article 12 of the Constitution. The right cannot be claimed against unaided minority schools to equality which is available against the State and in the absence of any statutory provision or administrative instruction, unaided minority Institutions are under no obligation to pay equal pay for equal work to their teachers.

Janet Jeyapaul ( Dr.) v. SRM University,[25]AIR  2016 SC 73 at page no.79 

Private University- S.R.M. University Madras, declared  “Deemed University” by the Central Government under Section 3 of the UGC Act, the Management of which was in the private trust was held to be an authority provided under article 12 of the Constitution and amenable to the writ jurisdiction because :

1. It imparted education in higher studies to the students at large.  

2. It discharged public functions by way of imparting education.

3. It was notified as a deemed university under Section 3 of the UGC Act.

4. being a deemed University by the Central Government under section 3 of the UGC Act, all the provisions of the UGC Act were made applicable to it which, inter-alia, provided for effective discharge of public function, namely, education for benefit of public.

5. Once it was declared as “deemed university” whose all functions and activities were governed by the UGC Act, like other universities, it was “other authority” within the meaning of article 12 of the Constitution.

6. Once it was held to be an authority as provided in article 12 then as a necessary consequence it was unable to reach the jurisdiction of high court under article 226 of the constitution.

Janet Jeyapaul ( Dr.) v. SRM UniversityAIR 2005 SC 2677[26]

Whether the Board of Cricket for Control in India was a ‘State’ within the meaning of article 12. The Board was not created by any statute, nor was a part of the share capital held by the Government.  There was practically no financial assistance given to the Board by the Government and even then the Board did enjoy in monopoly status in the field of cricket. The control, if any, was only regulatory in nature as applicable to other similar bodies. All functions of the Board were not public functions nor were they closely related to governmental functions. The Board was not created by transfer of a Government owned Corporation and was an autonomous body. The Board was not financially, functionally or administratively  dominated by or under the control of Government so as to bring it within the expression ‘State’ in article 12.

The Supreme Court did not accept the argument that since the Board was discharging  functions of public nature, It was ‘State’ within the meaning of article 12.

Ramkrishna Mission v.  Kago Kunya,[27]AIR 2019 SC 5570

Ramkrishna Mission, in receipt of some element of grant which covered only part of the expenditure was held to be not an “authority”. The Mission did not discharge a public function. The terms of the grant did not indicate any form of Government Control in the management or day to day functioning of the hospital. The nature of the work rendered by the Mission in general including in relation to its activities concerning the hospital was purely voluntary. The Mission did not discharge a public function, which must be of a character closely related with the functions performed by the State in its sovereign capacity. 

All areas outside Indian territory but which are under or may come under the control of the Government of India, comes into the definition of State. Such a  territory may come under India’s control by international agreement.Thus even such areas will be the subject to Part III and the residents of such areas may also claim the benefit of Fundamental Rights guaranteed in Part III.

Question. Whether the Judiciary was included within the definition of the State in article 12.

The Judiciary is not expressly mentioned in Article 12 and a great amount of dissenting opinions exist on the same matter. Bringing judiciary entirely under Article 12 causes a great deal of confusion as it comes with an attached inference that the very guardian of our fundamental rights is himself capable of infringing them.

Naresh v. State of Maharashtra,[28] AIR 1967 SC 1

The question arose first time in the case, Whether the Judiciary was included within the definition of the State in article 12.

It was held that even if a Court is the State a writ under article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights.

At the time of rulemaking power or when a judiciary is exercising any of its administrative power, then the judiciary can be liable as State and one can claim breach of his fundamental right but judiciary is not a state when it is exercising its judicial power. Therefore, in this case, it depends on the nature of function which the body is exercising.

A.R.Antulay v. R.S. Nayak,[29] AIR 1988 1531

 in view of the judgement of 7 judge bench of the supreme court it has been held that the court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens it can be said that the expression is state as defined in article of the function includes Judiciary also.

So, judiciary is not a state when it is exercising its judicial power. when a judiciary is exercising any of its administrative power or rulemaking power, then the judiciary can be liable as State and one can claim breach of his fundamental right.

In Rupa Ashok Hurra v. Ashok Hurra,[30] AIR 1999 SC 2870 

 The Apex Court reaffirmed and ruled that no judicial proceeding could be said to violate any of the Fundamental rights and that it is a settled position of law that superior courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12. This gave the rationale that a Superior Judicial body when acting “Judicially” would not fall under the definition of State but when it performs any administrative or similar functions e.g conducting examination, it will fall under the definition of “state” and that remedy could be sought in that context only in case of violation of fundamental rights.

So, it is impossible to make a close-ended category of entities which would be considered to be a State within the meaning of Article 12 of the Constitution in considring  in considering various views and tests recommended by Supreme Court.


[1] In University of Madras v. Santa bai,AIR 1954 Mad. 67

[2] In Ujjambai v. State of U.P,AIR 1962 SC 1621

[3] In Electricity Board v. Mohan lal,AIR 1967 SC 1857

[4] Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331

[5] In R.D Shetty v. The International Airport Authority of India, AIR 1979 SC 1628

[6] Som Prakash v. Union of India, AIR 1981 SC 212

[7] In U.P. Warehousing Corporation v. Vijay Narain, (1980) 3 SCC 459

[8]  In Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487

[9] In B. S. Minhas v. Indian Statistical Institute, (1983) 4 SCC 582

[10]In S.M. IIyas v. ICAR, (1993) 1 SCC 182

[11] In Central Inland Water Transport Corporation v. Brojo Nath Ganguly, (1986) 3 SCC 156

[12] In Sheela Barse v. Secretary, Children’s Aid Society, (1987) 3 SCC 50

[13] In MC Mehta v. Union of India, (1987)1SCC 395

[14]In Tekraj Vasandi v. Union of India, (1988) 1 SCC 236

[15] In Shri Kona Seema Co-operative Central Bank Limited v. N. Seetharam Raju, AIR 1990 AP 171

[16] In Chandra Mohan Khanna v. NCERT, AIR 1992 SC 76

[17] In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111

[18] In G. Bassi Reddy v. International crops Research Institute, AIR 2003 SC 1764

[19] In V.K. Srivastava v. U.P. Rajya Karmachari Kalyan Nigam, AIR 2005 SC 411

[20] In Assam Small Scale Industries Development Corporation Limited v. J. D. Pharma – ceuticals,, AIR 2006 SC 131

[21] In Punjab Water Supply and Sewerage Board v. Ranjodh Singh, AIR 2007 SC 1082

[22] In Lt. Governor of Delhi v. K.Sodhi, AIR 2007 SC 2885.

[23] In state of Assam v. Barak Upatyaka  D.V. Karmchari Sansthan, AIR 2009 SC 2249 

[24] Satimbla Sharma v. Saint Paul’s Senior Secondary School, AIR 2011 SC 2926

[25] Janet Jeyapaul ( Dr.) v. SRM University, AIR  2016 SC 73 at page no.79 

[26] Janet Jeyapaul ( Dr.) v. SRM UniversityAIR, AIR 2005 SC 2677

[27] Ramkrishna Mission v.  Kago KunyaAIR 2019 SC 5570

[28] Naresh v. State of Maharashtra,, AIR 1967 SC 1

[29] A.R.Antulay v. R.S. Nayak,, AIR 1988 1531

[30] In Rupa Ashok Hurra v. Ashok Hurra,AIR 1999 SC 2870 

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