100

CHAPTER-3

THE SCOPE OF
THESTA: E
DE~INITION OF

The main concern of Political Scien e is the State, the greatest of all
human associations. The word has often een erroneously employed as a
synonym for "nation", "country", "society' and "the government." There is
so great a diversity of the uses of the word "State" that it creates confusion.
There are diverse notions about the word 'State" in Political Science. The
word has often been used indiscriminately t express a general tendency or an
1

idea. While in common usage we speak of e 'State' of a man's health, of his

mind or of his economic conditions. In poli ·cal science also it has been used
in different shades. It has commonly been e ployed to express the idea of the
collective action of community as distinguished from individual action . The
term has also been erroneously employed as a synonym of the word
'government'.

In Political science by the word "State" we mean a "politically organised

people of a definite territory." If we closely analyse, we shall find that the
United State of America or India possesses all the four essential elements of
the "State" i.e population, territory, government, and sovereignty. But the
constituent units of these countries possess population, government but not
sovereignty. Therefore, they cannot be called States.

I. Definitions by Political Thinkers

It is very much impmtant to know about the ideas given by the Political
thinkers about the word State. The term "State" has been defmed by a number
of political thinkers who tried their best to let us know what they meant by the
term "State". A few popular defmitions are given below:
 101

Aristotle defined the State as :

"a union of families and villages having for its end a perfect
and self-sufficing life by which we mean a happy and
honourable life". 1

Cicero defmed the States as:

"a numerous society united by a common sense of right and a
mutual participation in advantages." 2

In 1576 Bodin defmed the State as:

"an association of families and their common possessions,
governed by supreme power and by reason. " 3

The English writer Holland defmes the "State" as :

"a numerous assemblage of human beings generally occupying
a ce1tain territory amongst whom the will of the majmity or
class made to prevail against any of their number who oppose
it. "4

Burges defmes the State as:

"a particular portion of mankind viewed as an organised unit" 5

According to Bluntschli,:
6
"The State is politically organised people of a definite territory."

Phillimore goes to the extent of saying that a State for all purposes of
international laws is :
"a people prominently occupying a fixed territory, bound

l. Aristotle : "Politics", Jowell's Translation.

2. Cicero: "De Republica", Bk I. at 25
3. Bodin : "Six liner de Ia repubhque", Bk. I. Ch. I
4. Holland : "Elements of Jurisprudence" (6th ed.), at 40
5. Burgess: "Political Science and Constitutional Law", Vol I, at24.
6. Bluntschli : "Allegemcine Staatslchve", Vol. I, at 24
 102

together by common laws , habits and customs into one body

politic, exercising through the medium of an organised
government, independent sovereignty and through the
medium of an organised government, indepdent sovereignty
and control over all persons and things within its boundaries,
capable of making war and peace and of -entering into all
international relations with the communities of the globe." 7

According to Woodrow Wilson, :

"The State is people organised for law within a definite
territory."

Professor Laski defmed State as :

"a territorial society devided into government and subjects
claiming within its allotted physical area, a supremacy over
~11 other institutions."

Hall, viewing the State primarily as :

"a concept of international law says, "the marks of an
independent state are that the community constitUting it, is
permanently established for a political end, that it possesses a
defined territory and that it is independent of externa:l
control. " 8

Professor Gilchrist defines the State as :

"The State is a concept ofPolitical Science and a moral reality

which exists where a number of people living on a defmite
territory, are unified under a Government which in internal
matters is the organ for expressing their sovereignty and in
external matters is independent of other Governments". 9

7. Phillimore: "International Law", 3rd ed. at 81.

8. Hall: "International Law", 3rd ed. at 18.
9. Prof. Gilchrist : "Principles ofpolitical science". at 17, 1957.
 103

Modem Conception of the State, Views of Gabriel Almond and Robert Dahl:

Gabriel Almond used the term "Political System" instead of the State.
According to him Political System is the system of interactions to be found in
all independent societies which perform the functions of integration and
10
adaptation (both internally and vis-a-vis other societies) by means of the
employment, or threat of employment of more or less legitimate physical
compulsion". "The political System", he explains "is the legitimate, order
maintaining or transforming system in the society". 11

Pennock and Smith define the State as a political system comprising

all the people in a defmed territmy and possessing an organisation (government)
with the power and authotity to enforce its will upon its members, by resort, if
necessary, to physical sanctions, and not subject in the like manner to the
12
power and authority of another polity.

Robet1 A. Dahl defmes the State as:

"the political system made up of the residents of the territorial

area is a state". 13

Aristotle's defmition of the State is incomplete. There are fom· essential

elements of the modem state. But Aristotle regarded the state as " a union of
families and villages, which aims at doing good to human being and making
human life happy". It does not include the two essential elements, i.e territory
and sovereignty. Indirectly, it gives hint to the political organisation and deals
with population in detail. It is clear that his defmition is incomplete and fails
to give an idea of the modem State. Therefore, Cicero's defmition fails to
include the three essential elements of the State, i.e government, territory and
sovereignty. Bodin's defmition also fails to include the two essential elements

10. Gabriel, A. Almond and James S. Coleman: "The Politics of Developing Areas", at7.
11. Ibid., at 7
12. J. Donald Pennock and David G. Smith : "Political Science", at 126.
13. Robert A. Dahl: ''Modern Political Analysis", at 12.
 104

of the state i.e territmy and sovereignty. It refers to the government and
population only. Holland's definition refers to the territory and population but
it does not include the other two essential elements of the modem State, i.e the
government and sovereignty. The definition given by Burgess deals in detail
with population and the political organisation and does not make any reference
to territmy and sovereignty. Therefore, this definition also remains incomplete
and fails to give us the idea of the modem state. Likewise the definition given
by Bluntschli is also incomplete and unsatisfactory as it does not refer to
sovereignty. It deals only with territmy and politically organised people.

The definition given by Phillimore seems to be complete and it is

satisfactory to a very great extent. His definition deals with all the four essential
constituents of the modem state i.e., population, territory, government and
sovereignty. Woodrow Wilson's defmition deals with population and territory
and gives indirect hints to peaceful political organisation but does not make
any reference to sovereignty. Therefore, it also remains incomplete. Laski's
defmition deals with almost all the four essential elements of the state, i.e
population, territory , government and so,vereignty. But it refers to the internal
sovereignty and does not make any mention of external sovereignty. Therefore
it is also not complete. Hall's defmition deals with territmy, population and
sovereignty and indirectly refers iri brief to all the four constitutent elements
of the modem state, i.e territmy, population, government and sovereignty. In
his definition Maclaver makes reference to sovereignty. Among all the
defmitions of the State given above, the definition of Professor Gilchrist and
Dr. Gamer seem to be complete and satisfactory as they deal in detail with all
the four constituent elements of the modem state. They deal with population,
territory, government and sovereignty.

The defmitions given by Phillimore and Oppenheim also serve the

purpose but the defmitions given by Professor Gilchrist and Dr. Gamer seem
to be better.

The modetn State is constituted of the following four constituent elements :

·(1) Population or the number of people.
 105

(2) Fixed territmy or a definite place of residence

(3) Government or an organisation for uniting the people.
(4) Sovereignty or supremacy in internal matters and independence of
external control.

Of these four constituent elements of the modem state, the frrst two are
physical elements, the third is political and the fourth is spiritual.

There is no denying the fact that the state is a human institution and is
the highest of all human associations. Obviously, there can be no state without
human beings. A population of some kind is necessary for the existence of the
State. No state can exist in an uninhabited land nor can a definite piece of
land without human habitations be called a state. The State, being a human
institution, can never exist without human beings. Nor can living beings other
than human constitute the State.

Indeed, there cannot be a lower or upper limit for the number of citizens
of a state, nor can a dozen of people or so living in defmite place form a state.
Their number should neither be too small to be self- sufficient nor too large to
be well-governed. What should be the desirable number of the people and
what should be the suitable size of population for an ideal state are the problems
with which a number of political thinkers attempted to deal. For example,
Plato, the famous Greek Philosopher fixed the number at 5,050 citizens,
whereas his disciple - Aristotle - was not willing to be bound by any set figur.
He was clearly of the opinion that there ought to be a limit and he laid down
the general principle that "the number should be neither too small nor too
large; it should be large enough to be self-sufficient and small enough to be
well -governed. " 14 He believed that ten persons would be too small a figure
but a hundred thousand would be too large a figure to be well-governed. Both
were the extremes. He stuck a via media between too small a figure and too
large a number. While giving his opinion in this regard Aristotle h~d in his
view the city-states of Greece which according to him, were self-sufficient

14. Aristotle: "Politics". Bk. VII 4 (Jowett's ed., at. 267), "Laws" V 737.
 106

and well-governed. These city-states of Greece had a very small size of

population and direct democracy was popular in these city-states. The voters
or the citizens used to go to the Assembly Hall and pass the laws . In a populous
city state direct democracy could not function. This is the reason why Aristotle
had not recommended too large a number of people to be well - govemed.

Many centuries after Aristotle, Rousseau the French Philosopher who

belonged to eighteenth century when the populous states existed wrote his
famous book "Social contract", published in 1762, that ten thousand should
be the ideal figure of population for an ideal state. According to modem
scholars, it is well-nigh impossible to fix a definite figure of population of a
modem state. These days there are many states, the figures of which can be
counted in crores.

On the other hand, there are small states like San Marino. The population
of San Marino was twentythree thousand only in 1985. It does not go beyond
five figures. This it is quite clear that the states of today va1.y greatly in respect
of population.

The modern state gives preference to the big size of population because
bigger the size of population, greater will be its manpower. They can fight for
a big longer period of time dming the war period.

The second essential constituent of the State is territory which is an

important and essential constituent ofthe State as many other. The word tenitmy
"covers the surface of the land within well -defined boundaries, the sub-soil,
lakes and rivers and also air space above the land. Jellinck believes that none
of the definitions of the state given prior to nineteenth century mentioned
territory as an essential element. He rema1.·ks that lever in 1817 was the first
writer to define the state as a society of citizens "having a determinate
territmy" .15

All the modem thinkers and writers are of the opinion that territmy

15. Jellink: "Richt des Modernen States", (1905), Bk III Ch. III, at 19
 107

forms an essential element of the State. Bluntschi believes that "as the state
has its personal basis in the people, so it has its material basis in theland. The
people do not become state until they have acquired a teni.tmy." 16 Owing to
this reason, the State is different from other human Institutions.

The· third essential constituent of the State is the government. Like

othe:r essential constituent of the State the government is also indispensable
element of the State because no state can exist in the absence of the government.
For the existence of a State, Government is indispensable.

Government is the political organisation throught which the collective

will of the people is formulated, expressed and executed. As a matter of fact,
the states operates through the governmental machinery. It is the agency through
which society is politically organised, common policies are determined and
by which common affairs are regulated and common interests are promoted.

The 4th essential constituent of the State is sovereignty which is regarded

as the life and soul of the State. There can be no state in absence of sovereignty.
The term sovereignty has been derived from the Latin workd "Superanus"
which means supreme, sovereignty, therefore is the supreme element of
statehood. It is the power which differentiates the state from all other social
organisation. Other existing social organisations can claim a number of people
with separate territory and a governmental organisation that the state is the
only human institution that has all the essential elements including sovereignty.

Sovereignty means supremacy of the State. The State rules supreme in

the intetnal and external matters. The sovereignty of the state is expressed
through the government which rules supreme in internal and external matters.
Since the State is supreme in internal and external sovereignty. Sovereignty
means the authority of some other country ruling supreme in the country.

The terms State and Governments have indiscriminately and erroneously

used for each other. They have often been inter-changeably employed as if
there is no difference between the two. The Stuart in England never

16. Bluntschli : "Theory of the State", at 231.

 108

differentiated the State from the government. They did so in order to justify
their absolute authority. King Louis XIV used to say," I am the State". Some.
political thinkers have also gone to the extent of using these two terms inter-
changeably. Hobbes employed the tetms the State and the govetnment as if
they meant the same thing. It was John Locke who ftrst of all attempted to
differentiate the State from the government in nineteenth centmy.

Political thinkers like Harold J. K Laski and G.D.H Cole also fmd little
or no difference between the two. According to Cole, the State "is nothing
more or less than the political machinery of government in a community" _17
Laski also observes, "for the state is for the purposes of practical administration,
the government". This indentiftcation of the State and government misses an
important fact. "While the government is a body of some citizens, the State
consists of all the citizens, however, inactive and inarticulate their will may be
in the governance of the country." 18 In this connection Professor W.w.
Willoughby Organisation of the State -the machinery through which its purpose
are formulated and executed" .19

The term sodety and State have often been inter-changeably used. For
example, Aristotle saw no difference between the State and society. That is
why the Greek City-states were said to be co-existensive with society. These
two terms-society and State are usually employed as synonyms but they differ
from each other in several respects. Society is a social organisation whereas
the State is a political organisation. "By society", says Laski, "I mean a group
of human beings living together for the satisfaction of their mutual wants". 20
Society deals with the social order whereas the State deals with the political
order. In this connection Maciver has very aptly remarked. "To identify the
social with the political is to be guilty of the grossest of all confusions which
completely bars any understanding of either society or State". 21 "Social relations

17. G.D.H. Cole: "Self Government and Industry", revised ed. Londo 1919, at 119.
18. C.C. Field: "Guild Socialism -A critical Examination", at 106.
19. W.W. Willoughby: "The Nature of the State", at 8.
20. Laski: "The State in Theory and Practice", (1967), at 20.
21. Maciver: "The Modern State".
 109

an threads of life" and social institutions "fmm the loom on which the threads
are woven into a cloth or garment". Leacock has pointed out that the term
"Society" suggests "not only the political relations by which men are bound
together but the whole range of human relations and collective activities G.D.H.
Cole has defmed Society as "the complex organised association and institutions
within the community". 22 Maciver believes that, "Society exists for a number
of purpose", some great and some small but all in their aggregate deep as well
as broad, "The State is not a social organisation". Maclver has pointed out that
"the ends for which the state stands are not all the ends which humanity seeks
and quite obviously the ways in which the state pursues its objects are only
some of the ways in which within society, men strive for the objects of their
desires". 23 Thus, it is quite clear that society and States are different
organisations. They are different in their modes and structure.

Ancient political thinkers like Atistotle and Plato, did not see any
disctinction between the State and society. The reason is that when they dealt
with the te1m "State" they had the idea of city-states in mind. But now the
city-states do not exist. Like Plato and Aristotle, Hegel, Hitler and Mussolini
also saw no difference between the State and society. They considered the
State all powerful with its sovereignty over its population living in a fixed
territory. But gone are the days of Hegel, Hitler and Mussolini. Maclver, an
eminent American political thinker, fails to accept the opinion ofHegal, Hitler
and Mussolini. He says "In this first place we must distinguish the State fi:om
Society. To identify the social with the political is to be guilty of the grossest
of all confusions which completely bars any understanding of either society
or the State". 24

Though the State is regarded as the highest of all human associations,

yet there is a marked distinction between the State and other associations. An
associations is defmed by Maciver, an eminent political thinker of America,

22. G.D.H. Cole: "Social Theory", III ed. London, 1923, at 29.
23. Maciver: "The Modern State".
24. Maciver : "Modern State", at 5-6.
 110

as "A group of persons or members who are associated and organised into
unity of will or a common end".Z 5 Cole defmes it like this, any group of person
pursuing a common purpose or system or aggregation of purposes by a course
or cooperative action extended beyond a single act and for the purpose agreeing
together upon certain methods of procedure and laying down in, however
rudimentary a form, rules for common action". 26 State is also a group of human
beings. Like other groups it also exists to satisfy human needs through the
concerted action of the government. Despite this close affinity between the
State and other associations, there are marked differences between the State
and other associations.

II. The State in Part III of the Constitution of India

The guarantee of Fundamental Rights is sought to be made as complete

and certain as possible by a very comprehensive definition of the term "State"
in Art 12 for the purposes of Part III of the Constitution. Article 12 says:-

In this part, unless the context otherwise requires " the state" includes
i) The Government and Parliament of India and
ii) The Government and the Legislature of each of the States and
iii) All local authorities or
iv) Other authorities within the territory of India or under the control of
the Government of India.
Article 12 gives an extended meaning to the words ' the state' wherever
they occur in Part III of the constitution. Unless the context otherwise requires,
"the state" will include not only the Executive and Legislative27 organs of the
Union and the States, but also local bodies 28 (such as municipal authorities) as
well as 'other authorities ' 29 , which include the 'instrumentalities' or agencies'

25. Ibid., at 6
26. Cole: "Social Theory", at 37.
27. Kochunni K.Kv. state ofMadras, AIR 1959 SC 725.
28. Railway Boards v. observer Publications, A.I.R. 1972 S.C. 1792.
29. Basheshar Nath v. I.T Commr., AIR 1959 SC 149 (158).
 111

of the State, or bodies or institutions which discharge public functions of the

governmental character. 30

(i) The Scope of Article 12

The term 'State' has been vety widely defmed with a view to seeming
the guarantee of fundamental rights in respect of all possible institutions. The
scope of this wide de~inition has been further expanded by judicial
interpretation of the tetm 'other authorities' occuring in Art. 12. This expansive
interpretation promotes the expansion of administrative law as more bodies
are covered under its scope. It helps in the expansion of judicial review as
many more bodies become subject to the writ jurisdiction, and it also makes
bodies amenable to the resttictions of fundamental rights.

This definition is only for the pm-pose of the provisions contained in

Part IIP 1 Hence, even though a body of persons may not constitute' the state'
within the instant definition, a writ under Article 226 may lie against it on
non-constitutional grounds or on the ground of contravention of some provision
of the Constitution outside Part III e.g., where such body has a public duty to
perform or where its acts are supported by the State or Public Officials. 32

Under Article 12 the word 'includes' indicates that the definition of

'the State' is not confmed to a Government Department and the legislature
but extends to any administrative33 action (whether statutory or non-statutory),
judcial or quasi-judicial, which can be brought within the fold of the 'State
action' ,34 which violates a fundamental right. 35 Therefore, the scope of the
word 'the state' has been widened through interpreting each and every words

30. Ramana Dayaram Shettyv. !.A.A.!., AIR 1979 SC 1628 (1638); State ofPunjab v.
Raja Ram, AIR 1981 SC 1694.
31. Rama Rao Gazula Dasarathav. State ofA.P., AIR 1961 SC 564 (570).
32. Kartik Chandra Nandi v. W.B.S.I. corpn., AIR 1967 Cal, 231 (234).
33. GulamAbbas v. State ofU.P, AIR 1981 SC 2198.
34. Ramana Dayaram Shetty v. !.A.A.!., AIR 1979 SC 1628 (1638); State ofPunjab v.
Raja Ram, AIR 1981 SC 1694.
35. Sam Prakash Rekhi v. Union ofIndia, AIR 1981 SC 212.
 112

used in Article 12. The Supreme comt has shown the vital role for widening
the scope of this Article 50 that the Fundamental Rights of the citizen can be
better protected against the arbitrmy practices of the Govemment Departments,
legislature as well as administrative actions.

(ii) Local A11thorities

The expression Local Authorities includes a 'Panchayat; 36 a Port Trust' 37

or other bodies coming within the definition of 'local authority' ins. 3 (31) of
the General Clauses Act, 1897_3 8

A local authority is a representative body. Merely because the Housing

Board, constituted underS. 3 ofHaryanaHousingBoardAct, 1971, is authority
39
under Art. 12, it cannot be treated as a local authority; so also are Calcutta
State Transport Corporation 40 and U.P Forest Corporation. 41

(iii) Other Authorities

The expression "authoritt" has a definite cannotation. It has different

dimensions and, thus, must receive a liberal interpretation. To arrive at a
conclusion, as to which "other authorities" could come within the purview of
Article 12, we may notice the meaning of the word "authority".

36. Ajit Singh v. State ofPubjab, AIR 1967 SC 856 (866): Bhagat Ram v. State ofPunjab,
AIR 1967 SC 927.
37. Madras Pinjrapole Management v. Labour Court, AIR 1961 Mad, 234 (23 9).
38. Madras Pinjrapole Management v.labour Court, AIR 1961 Mad, 234 (239);
Dinesh (Dr.) Kumar v. MNM College AIR 1986 SC 1877 (a Municipal Corpn. and
educational institution run by it )
39. Housing Board ofHaryana v. Haryana Housing Board Employees Union, AIR 1996
sc 434.
40. Calcutta State Transport Corporation v. Commissioner ofIncome Tax, W.B. (1996) 8
sse 758.
41. Commissioner ofIncome Tax, Lucknow v. UP Forest Corportation, AIR 1998 SC
1125.
 113

In Concise Oxford English Dictionary42 the word 'authority has been

defmed as under :

"1, the power or right to give orders and enforce obedience.

2, a person or organization exerting control in a patticular
political or administrative sphere. 3, the power to influence
others based on recognized knowledge or expertise."

Broadly, there are three different concepts which exist for determining
the question which fall within the expression 'other authorities":

(i) The Corporations and the Societies created by the State for carry-
ing on its trading activities in tetms of Article 298 of the Consti-
tution wherefor the capital infrastucture, initial investment and
fmancial aid etc. are provided by the State and it also exercises
regulation and control thereover.

(ii) Bodies created for reseat·ch and other developmental works which
is otherwise a governmental function but may or may not be a
part of the sovereign function.

(iii) A private body is allowed to discharge public duty or positive

obligation of public nature and furthermore is allowed to perform
regulatory and controlling functions and activities which were
otherwise the job of the government.

The rule of ejusdem generis cannot be applied to interpret this expres-

sion in as much as there is no common feature running through the natned
bodies. 43 •

42. Concise Oxford English Dictionary, lOth Edition.

43. Rajasthan State Electricity Bd. v. Mohan Lal, AIR 1967 SC 1857 (1861-63); Railway .
Board v. Observer Publications Pvt. Ltd., AIR 1972 SC 1792;
 114

The expression 'other authorities' refers to -

i) Instrumentalities44 or agencies, 45 of the Government and Government
Departments. 46 But evety instrumentality of the Government is not
necessarily a 'Government Department, 47 The instrumentalities or agencies,
even though perfoming some of the functions of the State, cannot be
equated with a govet:mnent department, if they have an independent status
distinct from the State e.g. goverment companies and public undertakings
though for the purpose of enforcing fundamental rights, they could be
held to be State. 48
ii) Every type of public authority, exercising statutory powers, 49 whether such
powers are governmental or quasi-governmental 50 or non-governmental51
and whether such authority is under the control of the Government or
not, 52 and even thought it may be engaged in carrying on some activities in
the nature of trade or commerce 53 e.g.,
44. Ramana Deyaram Shetty v. IA.A.l, AIR 1979 SC 1628 (1638); State of Punjab v.
Raja Ram, AIR 1981 SC 1694.
45. Ramana Dayaram ShetfJ' v.IA.A.l, AIR 1979 SC 1628 (1638,); State of Pubjab v.
Raja Ram, AIR 1981 SC 1694; Som Prakash Rekhi v. Union of India, AIR 1981 SC
212; Tejender Singh v. B.PC., AIR 1987 SC 51; Dwarkadas Mmfatia and Sons v.
Board ofTrustee of the Port ofBomba)J, AIR 1989 SC 1642.
46. Bidi Supply Co. v. Union ofIndia, AIR 1956 SC 479.
47. State of Punjab v. Raja Ram, AIR 1981 SC 1694, Not a Govt. Department, Steel
AuthorifJ' of India Ltd. v. Shri Ambica Mills Ltd, AIR 1998 SC 418, following SL.
Agarwal (D1:) v. G.M Hindustan Steel Ltd., AIR 1970 SC 1150 and Western Coalfields
Ltd. Special Area Development Authorif)J, AIR 1982 SC 697.
48. Mohd. Hadi Raza v. State ofBihar, (1998) 5 SCC 91.
49. Rajasthan State ElectricifJ' Bd. v.Mohan La!, AIR 1967 SC 1857 (1861-63); Railway
Board v. Observer Publications Pvt. Ltd., AIR 1972 SC 1792; Bidi Supply Co. v. Union
ofIndia, AIR 1956 SC 479; Sukhdev Singh v. Bhagatram Sardar Raghuvanshi, AIR
1975 sc 1331 (1342).
50. Rajasthan State Electricit;; Bd. v. MohanLal, AIR 1967 SC 1857 (1861-63); Railway
Board Observer Publications Pvt. Ltd, AIR 1972 SC 1792.
51. Rajasthan State Electricity Bd. v. Mohan Lal, AIR 1967 SC 1857 (1861-63); Railway
Board v. Observer Publications Pvt. Ltd, AIR 1972 SC 1792.
52. Ramamurthy Reddim; KS. v. ChiefCommr. Pondicherr)J, AIR 1963 SC 1464.
53. Rajasthan State Electricity Bd. v. Mohan Lal, AIR 1967 SC 1857 (1861-63); Railway
Board Observer Publications Pvt Ltd., AIR 1972 SC 1792.
 115

A Board, 54 a University, 55 the Chief Justice of High Comt, 56 having the

power to issue rules, bye laws or regulations having the force of law 57 or
the power to make statutmy appointments 58 i.e The High court on the
administrative side, 59 a public corporation60 .

(iii) An authority set up under a statute 61 for the purpose of adninstering a law
enacted by the Legislature, including those vested with the duty to make
decisions in order toimplement them. 62 U.P State Cooperative Land
Development Bank Ltd. is an authority63 .
A non-statutory body, exercising no statutory powers 64 is not 'State', e.g.,
65
(i) A company.
(ii) Private bodies, having no statutory power, 66not being supported by a State
act. 67
54. Rajasthan State Electricity Bd. v. Mohan La/, AIR 1967 SC 1857 (1861-63); Railway
Board v. Observer Publications Pvt. Ltd., AIR 1972 SC 1792.
55. Umesh v. Singh, AIR 1967 Pat. 3 (9) F.B.
56. Paramatma Sharan v. ChiefJustice Rajasthan High Court, AIR 1964 Raj 13.
57. Rajasthan State Electricity Bd. v. Mohan La!, AIR 1967 SC 1857 (1861-63); Railway
Board. v. Observer Publications Pvt. Ltd., AIR 1972 SC 1792.
58. Paramatma Sharan v. ChiefJustice Rajasthan High Court, AIR 1964 Raj. 13.
59. State ofBiharv. Ba/Mukund Sah, (2000) 4 SCC 640.
60. D.T.C. v.MazdoorCongress, D.T.C., AIR 1991 SC 101.
61. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331 (1342);
Sabhajit Tewary v. Union ofIndia, AIR 1975 SC 1329; Premji Bhai Parmar v. D.D.A.,
AIR 1980 SC 738.
62. Ujjam Bai v. State of U.P, AIR 1962 SC 1621; Masthan Sahib v. Chief Commr.
Pondicheny, AIR 1963 SC 533; Ramamurthy Reddiar KS. v. ChiefCommr. Pondichery,
AIR 1963 SC 1464.
63. U.P State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR
1999 sc 753.
64. Devdas v. KE. College, AIR 1964 Raj. 6 (11).
65. S.K Mukherjee v. Chemicals Allied Products, AIR 1962 Cal. 10 (12);MC. Mehtav.
U.O.l, AIR 1987 SC 1086.
66. Naresh Shridhar Mirajkar v. State ofMaharashtra, AIR 1967 SC 1 (11); Parbhani
T.C.S. v. R.T.., AIR 1960 (3) SCR 177; Tekraj Vasandi v. Union oflndia, AIR 1988 SC
469.
67. Kochunni KK v. State ofMadras, AIR 1959 SC 725 (730).
 116

(iii)A society, registered under the Societ~es Registration Act, 68

unless it can
I

be held that the Society was an instrumentality or agency of the State 69 or

- exercised statutory power to make. rules, bye-laws or regulations having
70
statutory force.

(iv) An autonomous body which is controlled by the Government only as to

71
the proper utilisation of its fmancial grant. •

Even a private body or a corporation 72 or an aided private school 73 may,

however, be included within the definition of' State' if it acts as an 'agency'
of the Government. 74 •
75
In determining whether a corporation or a Government company or a

68. Tiwari J (Smt) v. Jwala Devi (Smt), AIR 1981 SC 122; Dhanoa S.S. v. Municipal
Corpn., AIR 1981 SC 1395; Sheela Barse v. Children's Aid Society, AIR 1987 SC 656.
69. Som Prakash Rekhi v. Union ofIndia, AIR 1981 SC 212; Sabhajit Tewmy v. Union of
India, AIR 1975 SC 1329; Minhas B.S. v. Indian Statistical Inst. AIR 1984 SC 363;
Ramchand Iyer, P.K v. Union of India, AIR 1984 SC 541; Sheela Barse v. Secy.,
Children's Aid Society, AIR 1987 SC 656.
70. Ramana Dayaram Shetty. v.lA.A.I, AIR 1979 SC 1628 (1638); State of Pubjab v.
Raja Ram, AIR 1981 SC 1694.
71. Chander Mohan Khannav. NC.E.R.T, AIR 1992 SC 76.
72. Central Inland water Corpn. v. Brojo Nath Ganguly, AIR 1986, SC 1571; Bhandari
O.P. v.lTD.C., AIR 1987 SC 111;AjayHasiav. KhalidMujib Sehravardi, AIR 1981
SC 487 (496); LIC v. Escorts, AIR 1986 SC 1370; Gujarat State Financial Coprn.v.
Lotus Hotels Pvt. Ltd, AIR 1983 SC 848; Kalra A.L. V. P & E Corpn.,AIR 1984 SC
13 61; Food Corpn. ofIndia Worker's Union v. Food corporation ofIndia, AIR 1996
sc 2412.
73. Monmohan Singh v. Conum: UT Chandigarh, AIR 1985 SC 364; Workmen Food
Corpn. v. Food Corpn.oflndia, AIR 1985 SC 670.
74. SukhdevSingh v. Bhagatram SardarSingh, AIR 1975 SC 1331 (1335, 1359-60) ;A.I.
Sainik Schools Employees v., Sainik Schools Sociel)J, AIR 1989 SC 88; Star Enterprises
v. C.! D.C. Maharashtra Ltd (1990) 3 SCC 280; Mahabir Auto Stores v. Indian Oil,
AIR 1990 SC 1031.
75. Central Inland Water C01pn. v. Brojo Nath Ganguly, AIR 1986 SC 1571, 24, 69;
Bhandari O.Pv.lTD.C.,AIR 1987 SC 111.
 117

private body is an instrumentality or agency of the state, the following

tests would be applicable: 76 .
(i) Whether the entire share capital is held by the Government.
(ii) Whether the corporation enjoys monopoly status conferred by the
State.
(iii) Whether the functions of the corporation are governmental functions
or functions closely related thereto.
(iv) If a department of the Govemmenthas been transfen-ed to the corporation.
(v) The volume offmancial assistance received from the State. 77
(vi) The quantum of State control. 78
(vii) Whether any statutory duties are imposed upon the corporation. 79 .
(viii) The character of the corporation may change with respect to its dif
ferent functions. 80
A private educational institution does not become an instrumentality of
the State because of the mere fact that it has received recognition or
affiliation from the State. 81

76. Central Inland Water Corpn. v. Brojo Nath Ganguly, AIR 1986 SC 1571; Bhandari
O.P v. J.TD.C., AIR 1987 SC 111; AjayHasia v. KhalidMujib Sehravardi, AIR 1981
SC 487 (496); LIC v, Escorts, AIR 1986 SC 1370; Gujarat State Financial Cmpn. v.
Lotus Hotels Pvt. Ltd., AIR 1983 SC 848; Kalra A.L.v. P & E Corpn, AIR 1984 SC
1361.
77. ManmohanSinghv. Commr. U.T Chandigarh,AIR 1985 SC 364workmenFoodCorpn.
v. Food Corpn. ofIndia, AIR 1985 SC 670 Ganapathi National Middle School v. M
Durai Kannan, AIR 1996 SC 2803.

78. ManmohanSinghv. Comm1: U.T Chandigarh, AIR i985 SC 364;WorkmenFoodCorpn.

v. Food Corpn. ofIndia AIR 1985 SC 670.

79. Ajay Hasia v. Kalid Mujib Sehravardi, AIR 1981 SC 487 (496); LIC v. Escorts, AIR
1986 SC 1370; Gujarat State Financial Cmpn. v. Lotus Hotels Pvt. Ltd; AIR 1983 SC
848; Kalra A.L. v. P & E. Corpn. AIR 1984 SC 1361.

80. Mehta MC. v. Union of India, AIR 1987 SC 1086; L.J.C. v. Escorts, AIR 1986 SC
1370.

81. Unnikrishnan J.P v. State ofA.P, AIR 1993 SC 2178.

 118

Haryana State Electricity Board awarded a contract to a contractor who

was found to be only a name lender, there being no genuine contract with him.
he employed Safai Karamcharis whose services he terminated after they had
I
worked for more than 240 days. The High Court lifted the veil and held that
the Safai Karmacharis were employees of be said Electricity Board, an agency
of the Govt. and hence they were entitled 1o be reinstated. 82 The District Rural
Development Agencies 83 and U.P State Cooperative Land Development Bank
Ltd. 84 held to be instrumentalities of the State.

In Zee Tele Films Ltd v. Union oflndia85 • The question for consideration
in this petition is whether the Board falls within the definition of 'the State' as
contemplated under Article 12 of the Constitution.

It was the argument· of the Board that it did not come under the term
"other authorities", hence was not a State for the purpose of Article 12. While
the petitioner contended to the contrary on the ground that the va.tious activities
of the Board were in the nature of public duties. A literal reading of the
definition of State under Article 12 would not bring the Board under the Term
"other authorities '' for the purpose of Article 12. However, the process of
judicial interpretation has expanded the scope of the term "other authorities"
in its various judgments. It is on this basis that the petitioners contended that
the Boa.t·d would come under the expanded meaning of the term "other
authorities" in Atticle 12 because of its activities which was that of a public
body discharging public function.

Therefore, to understand the expanded meaning of the term "other

authorities" in Article 12, it is necessary to trace the origin and scop of Article
12 in the Indian Constitution. Present Atticle 12 was introduced in the Draft
Constitution as Article 7. The Court quoted with approval the observation of

82. Secretary, H.S.E.B. v. Suresh, AIR 1999 SC 1160.

83. Rajendra v. State ofRajasthan, AIR 1999 SC 923.
84. UP State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey, AIR
1999 sc 753.
85. AIR 2005 SC 2677.
, 119

Dr. Ambedkar in the Constituent Assembly. While initiating a debate on this

.· Artcle in the Draft Constitution in the Constituent Assembly, Dr. Ambedkar
described the scope of this Article and the reasons why this Article was placed
in the Chapter on fundamental rights as follows:
"The object of the fundamental rights is twofold. First, that
every citizen must be in a position to claim those rights.
Secondly, they must be binding upon every authority. I shall
presently explain what the word 'authority' means- upon every
authority which has got either the power to make laws or the
power to have discretion vested in it. Therefore, it is quite
clem· that if the fundamental rights are to be clear, then they
must be binding not only upon the Central Government, they
must not only be binding upon the Provincial Government,
they must not only be binding upon the Governments
established in the Indian States, they must also be binding
upon District Local Boards Municipalities, even village
panchayats and taluk boards, in fact, every authority which
has been created by ·law and which has got certain power to
make laws, to make rules or make bye-laws.

... .... there are two ways of doing it. One way is to use a
composite phrase such as 'the State', as we have done in
Article 7; or, to keep on repeating every time, the Central
Government, the Provincial ·Government, the State
Government, the Municipality, the Local Board, the Port Trust,
or any other authority. It seems to me not only most
cumbersome but stupid to keep on repeating this phraseology
every time we have to make a referecne to some authority.
The wisest course is to have this comprehensive phrase and
to economise in words. " 86

86. Constituent Assembly Debates, Vol. VII 1948 at 610, Quoted in Zee Tele Films Ltd. v.
Union ofIndia, AIR 2005 SC 2677 at 2685.
 120

Till about the year 1967 the courts in India had taken the view that
even statutmy bodies like Universities, Selection Committee for admission to
Government Colleges were not "other authorities" for the purpose of Article
12 87 . In the year 1967 the case of Rajasthan State Electricity Board V. Mohan
Lal & Ors. 88, the Court held that the expression "other authorities" is wide
enough to include within it every authority created by a Statute on which
powers are conferred to carry out governmental or quasi-governmental
functions and functioning within the territoy of India or under the control of
the Government of India. Even while holding so Shah, J. in a separate but
concuningjudgement observed that every constitutional or statutory authmity
on whome powers are conferred by law was not "other authority" within the
meaning of Artcle 12. He also observed further that it is only those authorities
which are invested with sovereign powers, that is power to make rules or
regulations and to administer or enforce them to the detriment of citizens and
others that fall within the definition of 'State' in Article 12: if constitutional
or statutmy bodies invested with power but not sharing the sovereign power
of the State are not "State" within the meaning of the Article.

Almost a decade later another Constitution Bench of this Court

somewhat expanded this concept of"other authority" in the case of Sukhdev
Singh & Ors, V. Bhagatram Sardar Singh Raghuvanshi & Anr. 89 In this case
the Court held, the bodies like Oil and Natural Gas Commission, Indusnial
Finance Corporation and Life Insurance Corporation which were created by
statutes because of the nature of their activities do come within the term 'other
authorities ' in Article 12. Even though in reality they were realy constituted
for commercial purposes while so holding Mathew- J. gave the following
reasons for necessitating to expand the definition of the term "other a,uthorities"

87. See The University of Madras V Shantha Bai & Am: (AIR 1954 Madras 67) :
B. W.Devadas V The Selection Committee for Admission ofStudents to the Karnataka
Enginneering College and Ors. AIR 1964 Mysore 6.

88. AIR 1967 SC 1857.

89. AIR 1975 SC 1331.
 121

in the following words:

"The concept of State has undergone drastic changes in recent

years ...... It can only act through the instrumentality or agency
or natural or juridical persons. There is nothing strange in the
notion of the state acting through a Corporation and making
it an agency or instrumentality of the State. With the advent
of a welfare State the frame work of civil service
administration became increasingly insufficient for handling
the new tasks which were often of a specialised and highly
technical character. ....... The Public Corporation, therefore,
became a third arm of the Government. The employees of
public Corporation are not civil servents. In so far as public
Corporations fulfil public tasks on behalf ofGovemment they
are public authorities and as such subject to control by
Govemment The public Corporation being a creation of the
State is subject to the constitutional limitation as the State
itself. 90

In Sabhajit Tewary v. U 0.1 & Ors. 91 the judgment was delivered by the
very same Constitution Bench which delivered the judgment in Sukhdev Singh
case. In this judgment the court noticing its judgment in Sukhdev Singh &
Ors. 92 , rejected the contention of the petitioner therein that Council for Scientific
and Industrial Research the respondent body in the said writ petition which
was only registered under the Societies Registration Act would come under
the term "other authorities" in Article 12.

This distinction to be noticed between the two judgments referred to

hereinabove namely Sukhdev Singh & Ors, and Sabhajit Tewary9 3 , is that, in

90. Sukhdev Sing v. Bhagatram, AIR 1975 SC 1331, Quoted in Zee Tele Films Ltd., v
Union ofIndia, AIR 2005 SC 2677 at 2686.
91. AIR 1975 SC 1329.
92. AIR 1975 SC 1331.
93. AIR 1975 SC 1329.
 122

the former the Court held that bodies which were creatures of the statutes
having important State functions and where State had pervasive control of
activities of those bodies would be State for the purpose of Article 12. While
in Sabhajit Tewary scase the Court held, a body which was registered under a
statute and not performing impottant State functions and not functioning under
the pervasive control of the Government would not be a State for the purpose
of Article 12.

Subsequent to the above judgments of the Constitution Bench a three-

Judges Bench of this Court in the case of Ramana Dayaram She tty v. The
International Airport Authority of India & Ors. 94 placing reliance on the
judgment of this Court in Sukhdev Singh95 held that the International Airport
Authority which was an authority created by the International Airpmt Authority
Act, 1971 was an instrumentality of the State, hence, came within the term
"other authorities" in Article 12. While doing so this Court held :

To-day the Government, in a welfare State, is the regulator .

and dispenser of special services and provider of a large
number on benefits. The valuables dispensed by Government
take many forms, but they all share one characteristic. They
are steadily taking the place of traditional forms of which.
These valuables which derive from relationships to
Government are of many kinds :leases, licenses, contracts and
so forth. With the increasing magnitude and range of
governmental functions as we move closer to a welfare State,
more and more of our wealth consists of these new forms.
·Some of these forms of wealth may be in the nature of legal
rights but the large majority of them are in the nature of
privileges. But on that account, it cannot be said that they do
not enjoy any legal protection nor can they be regarded as
that they do not enjoy any legal protection nor can they be

94. AIR 1979 SC 1628.

95. AIR 1975 SC 1331.
 123

regard as gratuity furnished by the State so that the State may

withhold, grant or revoke it at its pleasure96 •

The law has not been slow to recognize the impmtance of this new
kind of wealth and the need to protect individual interest in it and with that
end in view, it has developed new forms of protection. Some interest in
Government larges, formerly regarded as privileges, have been recognized as
rights while others have been given legal protection not only by forging
procedural safeguards but also by confining or structuring and checking
Government discretion in the matter of grant of such larges. The discretion of
the government has been held to be not unlimited in that the Government
cannot give or withhold largess in its arbitary discretion or its sweet will.

It is in the above context that the Bench in Ramana Dayaram She tty s97
case laid down the parameters or the guidelines for identifying a body as coming
within the definition of "other authorities" in Article 12, they are as follows:

1) One thing is clear that if the entire share capital of the corporation is held
by Goverment it would go a long way towards indicating that the
corporation is an instrumentality of Goverment98 •

(2) Where the fmancial assistance of the State is so much as to meet.. almost
entire expenditure of the corporation. It would afford some indication of
the corporation being impregnated with governmental character99 •

3) It may also be a relevant factor whether the corporation enjoys monopoly

status which is State-conferred or State-protected100 •

96. Ramana Dayaram Shetty v. The International Airport Authority ofIndia & Ors., AIR
1979 SC 1628, quoted in Zee Tele Films Ltd v. Union ofIndia, AIR 2005 SC 2677 at
2687.
97. AIR 1979 SC 1628.
98. Ramana Dayaram She tty v. The International Airport Authority ofIndia & Ors., AIR
1979 SC 1628, quoted in Zee Tele Films Ltd v. Union ofIndia, AIR 2005 SC 2677 at
2688.
99. Ibid
lOO.lbid
 124

(4) Existence of deep and pervasive State control may afford an indication
that the corporation is a state agency or instrumentality101 •

(5) If the functions of the corporation are of public importance and closely
related to governmental functions, it would be a relevant factor classifying
the corporation as an instrumentality or agency of Government102 .

(6) Specifically, if a department of Government is transferred to a corporation,

it would be a strong factor supportive of this inference of the corporation
being an instrumentality or agency of Government103 .

The above tests propounded for determining as to when Corporation

can be said to be an instrumentality or agency of the Government was
subsequently accepted by a Constitution Bench of this Court in the case of
Ajay Hasia & Ors. v. KhalidMujib Sehravardi & Ors 104 • But in the said case
ofAjay H asid 05 the court went one step further-and held that a society registered
under the Societies Registration Act could also be an instrument of State for
the purpose of the term "other authorities" in Article 12. This part of the
judgment of the Constitution Bench Ajay Hasid 06 was in direct conflict or
was seen as being in direct conflict with the earlier Constitution Bench of this
court in Subhajit Tewary s101 case which had held that a body registered under
a statute and which was not performing important State function or which was
not under the pervasive control of the State cannot be considered as an
instrumentality of the State for the purpose of Article 12.

The above conflict in the judgments of Sabhajit Tewary 108 and Ajay
H asid 09 of two co-ordinate Benches was noticed by this Court in the case of

· 101. Ibid.
102. Ibid.
103. Ibid.
104. AIR 1981 SC 487.
105. Ibid.
106. Ibid.
107. AIR 1975 SC 1329.
108. Ibid
109. AIR 1981 SC 487
 125

Pradeep Kumar Biswas and hence the said case of Pradeep Kumar Biswas 110
came to be referred to a larger Bench of seven Judges and the said Bench,
speaker through Ruma Pal, J. held that the judgment in Sabhajit Tewarym
was delivered on the facts of that case, hence could not be considered as having
laid down any principle in Law. The said larger Bench while accepting the
ratio laid down in Ajay Hasia s112 case though cautiously had to say the
following in regard to the said judgment of this Court inAjay Hasia:

"perhaps this rather overenthusiastic application of the broad

limits set by Ajay Hasia may have persuaded this Court to
curb the tendency in Chander Mohan Khanna '~ National
Council of Educational Reserch and Training113 • The court
referred to the tests formulated in Sukhdev Singh 114,
Ramana 115 , Ajay Hasia 116 and Sam Prakash Rekhi 117 but
striking a note of caution said that "these are merely indicative
indicia and are by no means conclusive or clinching in any
case". In that case, the question arose whether the National
Council of Educational Reserch (NCERT) was a "State" as
defmed under Article 12 of the Constitution. NCERT is a
society registered under the Societies Registration Act. After
considering the provisions of its memorandum of association
as well as the rules of NCERT, this Comt came to the
conclusion that NCERT was largely an autonomous body and
the activities of NCERT were not wholly related to
governmental functions and that the governmental control was
confined only to the proper utilisation of the grant and since

110. (2002) 5 sec 111.

111. AIR 1975 SC 1329.
112. AIR 198.1 SC 487.
113. AIR 1992 SC 76
114. AIR 1975 SC 1331
115. AIR 1997 SC 1628
116. AIR 1981 SC 487
117. AIR 1981 SC 212
 126

its funding was not entirely from government resource, the

case did not satisfy the requirements of the State under Article
12 of the Constitution. The Court relied principally on the
decision in Tekraj Vasandi v. Union of india118 • However, as
far as the decision in Sabhajit Tewary v. Union of Jndia 119
was concerned. It was noted that the "decision has been
distinguished and watered down in the subsequent
decisions' 120

Thereafter the larger Bench of this Court in Pradeep Kumar Biswas 121
after discussing the various case laws laid down the following parameters for
gauging whether a particular body could be termed as State for the purpose of
Artcle 12:

The picture that ultimately emerges is that the tests formulated

in Ajay Rasia are not a rigid set of principles so that if a body
falls within any one of them it must, exhypothesi, be
considered to be a State within the meaning of Artcle 12. The
question in each case would be - whether in the light of the
cumulative facts as established, the body is financially,
functionally and administratively dominated by or under the
control of the Government. Such control must be particular
to the body in question and must be pervasive. If this is found
then the body is a State within Article 12. On the other hand,
when the control is merely regulatory whether under statute
or otherwise, it would not serve to make the body a State. 122

118. AIR 1988 SC 469.

119. AIR 1975 SC 1329.
120. AjayHasiav. KhalidMujib, AIR 1981 SC 487, quotedinZee Tele Films Ltd. v. Union
ofIndia, AIR 2005 SC 2677 at 2688.
121. (2002) 5 sec 111.
122. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111,
quoted in Zee Tele Films Ltd. v. Union ofIndia, AIR 2005 SC 2677 at 2689.
 127

Above is the ratio decidendi laid down by a seven Judges Bench of

this Court which is binding on this Bench. The facts of the touchstone of the
parameters laid down in Pradeep Kumar Biswas s123 case. Before doing so it
would be worthwhile once again to recapitulate what are the guidlines laid
down in Pradeep Kumar Biswas s124 case for a body to be a state under Article
12. They are:

1) Principles laid down inAjay Hasial 25 are not a rigid set of principles so
that if a body falls within any one of them it must ex hypothesi, be
considered to be a State within the meaning of Article 12.

2) The question in each case will have to be considered on the bases of facts
available as to whether in the light of the cumulative facts as established,
the body is fmancially, functionally, administratively dominated, by or
under the control of the Government.

3) Such control must be particular to the body in question and must be

pervastve.

4) Mere regulatory control whether under statute or otherwise would not

serve to make a body a State.

The facts established in this case shows the following:

1) Board is not created by a statute.

2) No part of the share capital of the Board is held by the Govemment

3) Practically no fmancial assistance is given by the Government to meet the

whole or entire expenditure of the Board.

4) The Board does enjoy a monopoly status in the field of Cricket but such
Status is not State conferred or State protected.

5) There is no existence of a deep and pervasive State control. The control if

123. (2002) 5 sec 111.
124. Ibid.
125. AIR 1981 SC 487.
 128

any is only regulatory in nature as applicable to other similar bodies. This

control is not specifically exercised under any special statute applicable
to the Board. All functions of the Board are not public functions nor are
they closely related to governmental functions.

6) The Board is not created by transfer of a Government owned corporation.

It is an autonomous body.

In Atticle12, the 'State' has not been defmed, it is merely an inclusive

defmition. It includes all other authorities within the territory of India or under
the control of the Government of India. It does not say that such other authorities
must be under the control of the Government oflndia. The word or is disjunctive
and not conjunctive.

What is necessruy is to notice the functions of the Body concerned. A

'State' has different meaning in different context. In a trditional sense. It can
be a body politic but in modem international practice a State is an organization
which receives the general recognition accorded to it by the existing group of
other States. Union of India recognizes the Board as its representative. The
expression "other authorities in Article 12 of the Constitution of India is State
within the territory of India as contradistinguished from a State within the
control of the Government of India. The concept of State under Article 12 is
in relation. to the fundrunental rights guaranteed by part III of the Constitution
and Directive Principles of the State Policy contained in part IV thereof. The
contents of these two parts mainfest that Article 12 is not confined to its ordinruy
or constitutional sense of an independent or sovereign meaning so as to include
within its fold whatever comes within the purview thereof so as to instill the
public confidence in it.

Article 12 must receive a purposive interpretation as by reason of Part

III of the Constitution a Charter of Liberties against oppression and arbitrariness
of all kinds of repositories of power have been conferred the object being to
limit and control power wherever it is found. A body exercising significant
functions of public importance would be an authoritr in respect of these
functions. In those respects it would be srune as is executive government
, 129

established under the Constitution and the establishments of organizations

funded or controlled by the Government. A trafic constable remains an authority
even if his salary is paid from the parking charges in as much as he still would
have the right to control the trafic and anybody violating the trafic tules may
be prosecuted at his instance.

Criticism of too broad a view taken of the scope of the State under
Article 12 in Ramana case 126 invited some criticism which was noticed in
Som Prakash Rekhi case 127 . It was pointed out that the observations in Ramana
case 128 spill over beyond the requirments of the case and must be dismissed as
obiter; that International Airport Authority is a corporation created by a statute
and there was no occasion to go beyond the narrow needs of the situation and
expand the theme of the State in Article12 vis-a-vis government companies,
registered society, and what not; and that there was contradiction between
Sukhdev Singh case 120 and Ramana case 130 •

(iv) Authorities under the control of the Government of India

These words extend the application of the fundamental rights to areas

outside the tenitory oflndia, which may be under the control of the Govemment
of India for the time being, e.g. mandatory and trust territories which might be
placed by international organisations under the control of the Government of
India. This article explains that India would not discriminate, so far as the
fundamental rights of individuals are concerned, between its own nationals
and the people of other countries, which might come under the administration

126. Ramana Dayaram ShetfJ' v. International Airport AuthorifJ' of India, AIR 1979 SC
1628.
127. SomPrakash Rekhi v. Union ofIndia, AIR 1981 SC 212.
128. Ramana Dayaram Shetty v. International Ai1port Authority of India, AIR 1979 SC
1628.
129. Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331.
130. Ramana Dayaram Shetf)' v. International Ai1port AuthorifJ' of India, AIR 1979 SC
1628.
 130

of India under some international anangement, agreement or the like. 131

The Supreme Court132 has, however, given to the above words a meaning
different from that given in the Constituent Assembly. According to the
Supreme Court the words under the control of the Government oflndia control
the word authorities and not the word territory, so that the expression would
read thus:

"all local or other authorities within the territmy of India or

all local or other authorities under the control of the
Government of India".

The result of this interpretations is that in respect of an authority situated

outside India, an additional test has to be satisfied before it can be brought
within Art. 12 namely, whether it is under the control of the Government of
India'. According to this interpretation, Art. 12 will apply to two categories of
'authorities' :

(a) Authorities situate within the territory of India; these need not be un
der the control of India in order to be deemed 'State' under Art. 12.

(b) Authorities situate outside the territmy of India (e. g., territories ad
ministered by India under the Foreign Jurisdiction Act, 1947); these
will come within the purview of Art. 12 only if they are under the
control of India.

Proceeding from the view, it has been held133 that since a judicial or
quasi-judicial authority cannot be said to be under the control of the
Government, in respect of its function, the superior Courts in India will have
no power of judicial review over the decisions of a judicial or quasi -judicial
authority if it is situated in a tenitmy outside India, even though such territory
is under the control of the Government of India.

131. Dr. Ambedkar, constituent Assembly Debates, Vol VI at. 607.

132. Ramamurthyv. ChiefCommr., AIR. 1963 S.C. 1464 (1461-S);Masthan Sahib v. Chief
Commr., AIR. 1963 S.C. 533 (537)
133. Masthan Sahib v. ChiefCommr., AIR. 1963 S.C. 533 (537).
 131

It is conceded by the Supreme Comt in both the cases 134 that where the
control of the Government of India extends over a territory which is outside
India, the superior courts in India can exercise their constitutional jurisdiction
over the acts of the administrative authorities situated in such territory by
'passing suitable orders' against the Government of India. Does it make any
difference if such administrative authority is endowed with quasi-judicial
authority by the law? So far as quasi-judicial bodies located in India are
concerned, there is no doubt that their decisions may, in proper circumstances,
be quashed by certiorari. In such cases, it is the decision which is struck down
arid the Supreme Court does not compel the inferior tribunal to exercise its
functions in any pruticular manner. Where the quas-judicial authority violates
the-decision of the Court, the Supreme Court cannot directly enforce its decision
against such authority and will be obliged to take the aid of the Government
of India; but then the Government of India shall be competent to see that the
quasi-judicial body complies with the orders of the Supreme Court in the same
manner as it can do in the case of a pm·ely administrative body. In so doing,
the Government would not be compelling the quasi-judicial tribunal to decide
a question in a pruticular manner, but only enforcing the decision of the highest
Comt of India against the inferior tribunal.

It is submitted that much anomally will be created if the word 'control'

is interpreted in the sense of 'functional' 135 as distinguished from
'administrative' control.

'Under the control of the Government of India' means An authority

which is located outside India may still come under the definition of 'State
under Art 12 if it is under the control of the Government of India.

134. Ramamurthyv. ChiefCommr., AIR. 1963 S.C. 1464 (1467-8);Masthan Sahib v. Chief
Comm1:, AIR. 1963 S.C. 533 (537).
135. Ramamurthy v. ChiefCommr., AIR. 1963 S.C. 1464 (1467-8).
 132

(v) Fundamental Rights- a guarantee against State action

The rights which are guaranteed by Arts. 19, 136 21 and 3137 are guaranteed
against State action as distinguished from violation of such rights by private
individuals. In case of violation of such tights by ptivate individuals, the person
aggtieved must seek his remedies under the general law.
But where the claim of a private person is supported by a State act,
executive or legislative, 138 the person aggrieved may challenge the
constitutionally of the State act which supports the private claim. 139

While a right created by statute may be taken away by another statute,

a fundamental right guaranteed by the Constitution cannot be taken away by a
statute. 140

(vi) Judiciary

While the inclusive definition of 'State' in Art. 12 includes the

Judiciary, 141 in some earlier cases, it was observed that (i) a judicial order
could not possibly violate fundamental right; 142 and (ii) no remedy under Art.
32 was available on the ground that a judicial order violated a fundamental
right.143

(vii) Industry

The State while discharging a public welfare function is not an

"industry" under the Industrial Disputes Act. 144

136. Samdasani P.D. v. Central Bank, AIR 1952SC 59.

137. Vidya Verma v. Shivnarain (Dr.), 1956 (2) SCR 108.
138. Kochunni KK v. State ofMadras (1), AIR 1959 SC 725 (730).
139. Ibid.
140. Panna/a! Binj Raj v. Union ofIndia, AIR 1956 SC 397.
141. Budhan Choudhuryv. State ofBihm; AIR 1955 SC 191.
142. Amirabbas Abbasi Sehabzada Saiyed Muhammed v. State ofMB., AIR 1960 SC
768; Parbhani Transport Co-operative Societyv. R.TA .. , AIR 1960 SC 801; Naresh
Shridhar Mirajkar v. State ofMaharashtra, AIR 1967 SC 1.
143. Ujjam Bia v. State of UP AIR 1962 SC 1621; Antulay A.R. v. Nayak R.S. AIR 1988
sc 1531.
144. Executive Engineer (State ofKarnataka) v. K Somaself)~ (1997) 5 SCC 434.
 133

There has however, been a change of judicial climate since th minority

opinion ofHidayatullah, J., inNaresh's case 145 • The propositions so far asserted
in these subsequent cases are -

(a) A judicial decision or order which violates a fundamental right is void, 146
even though it will be binding on the patties so long as it is not set aside
in appropriate proceedings. 147

(b) Though the remedy under Art. 32 is not available where teh offending
Court is the Supreme Court itself, the court in the exercise of its inherent
jurisdiction (para 105)1 48 would review and set aside a previous direction
given by the court which offended against a fundamental right, e.g. the
natural justice, an ingredient of Art. 14 or 21 (paras 60-61, 77, 80-82). 149

The literatures available on the definition of the State are not sufficient.
The subject has been discussed in the constitutional law commentaries and
ru.ticles published in the law journals. Over and above one has to depend mainly
on the judicial decisions.

Seervai has pointed out that "our constitution should exist on the exercise
of power by the State; but the essential problem of liberty and equality was
freedom from ru.ibutary restrictions. The constitution should be so interpreted
that the governing power, wherever located, must be subjected to fundamental
constitutional limitations". He raises a question "when can a corporation be
looked upon as an agency of the State for subjecting it to constitutional
limitation? No easy answer is possible". 150

In the Airport151 Case the doctrine of agency and State instrumentality

145. Budhan Choudhuryv. State oJBihm; AIR 1955 SC 191.

146. U;jam Bia v. State ofU.P AIR 1962 SC 1621; Antulay A.R. v. Nayak R.S., AIR 1988
SC 1531; NawabkhanAbbas Khan v. State ofGujarat, AIR 1974 SC 1471.
147. AntulayA.R. v.NayakR.S. AIR 1988 SC 1531.
148. Antulay A.R. v. Nayak R.S, AIR 1988 SC 1531.
149. Ibid.
150. Seervai, H.M, Constitutional law oflndia (1991).
151. AIR 1979 SC 1628.
 134

was adopted by Bhagwati J. The problem to be solved in that case was thus
stated by Bhagwati J.:

This appeal by special leave raises interesting questions of

law in the area of public law. What are the constitutional
obligations on the State when it takes action in exercise of
its statutory or executive power? Is the State entitled to deal
with its property in any manner it likes or award a contract to
any person it chooses without any constitutional limitations
upon it? What are the paramaters of the statutory or executive
power in the matter of awarding a contract ordealing with its
property? These questions fall in the sphere of both
Administrative Law and Constitutional law and they assume
special significance in a modern welfare state which is
committed to egalitarian values and dedicated to the rule of
law. But these questions cannot be decided in the abstract.
They can be determined only against the background of facts
and hence we shall proceed to state the facts giving rise to
the appeal.

In Hasia s152Case the question for detennination arose out of writ

petitions filed under Article 32 challenging the validity of admissions to the
Regional Engineering College, Srinagar ("the College") which was one of 15
Engineering Colleges ·in India sponsored by the Govt. of India. The college
was run by a Society ("The society") registered under the Jammu and Kashmir
Registration of Societies Act 1893. The question was whether the society was
"the State" under Article 12, for only if it was the State could the admissions
to the college be challenged as violating Article 14, Bhagwat:i J. delivering the
unanimous judgements of a constitution Bench scrutinized the Memorandum
of Association and the Ru1es of the Society and held that the Society was an
instrumentality or agency of the State and Central Governments and the Society
was an authority under Article 12.

152. AIR 1981 SC 487

 135

Bhagwati J. formulated that relevent tests for determining whether a

corporation was an agency or instumentality of govt. as follows: 153

(a) One thing is clear that if the entire share capital of the
corporation is held by Govt., it would go a long way towards
indicating that the corporation is an instrumentality or agency
ofGovt;

(b) Where the fmancial assistance of the State is so much as to

meet almost (the) entire expenditure of the corporation, it
would afford some indication of the corporation being
impregnated with goverment character,

(c) It may also be a relevant factor ..... whether the corporation

enjoys monopoly status which is the (sic) State conferred or
state protected;

(d) Existence of 'deep and pervasive State control ma:y afforde

an indication that the Corporation is a State agency or
instrumentality;

(e) if the functions of the Corporation are of public impmtance

and closely related to government functions, it would be a
relevant factor in classifying the corporation as an
instrumentality or agency of Government.

The fundamental rights may be violated by the State as much directly

as indirectly. While in the former case its officials or agencies violate them, in
the latter it may let them be violated by others either through its inaction or
active connivance. The latter violation may be as injorious as the former. In
such cases State cannot escape its responsibility or liablity towards the
protection of fundamental tights on the plea that they are the actions of private
individuals and not of the State. 154

153. Ibid.
154. Shukla, V.N. The Constitution ofIndia (2001)
 136

The 'judiciary', though an organ of the State like the executive and
legislature, is not specifically mentioned in Article 12. Does it mean that the
'judiciary' is notmeantto be included in the concept of'the state'? The answer
depends on the distinction between the judicial and non-judicial functions of ·
the courts. In the exercise of non-judicial functions the courts fall within the
definition of 'the State'.

Article 12, while defining the word 'State' used in the Constitution,.
points to fact that the word 'State' includes the Government and Parliament of
India, the Government and legislature of each of the State and all·local and
other authmities within the teiTitmy of India or under the Control of the
Govemment of India. With regard to scope of this article. Dr. Ambedkar said
that it encompasses within its ambit "every authority which has been created
by law and which has got certain powers to make laws, to make tules and to
make by laws" 155

Any attempt of the State to abridge a fundamental right, directly or

indirectly is unconstitutional, unless permitted by some provision of the
Constitution itself. Even in the granting of privilege, the State cannot impose
conditions which require the 'relinquishment of constitutional rights'. On the
same principle, the right to continue the exercise of a privilege granted by the
Govemment cannot be made to depend upon the grantee's submission to a
condition, prescribed by the Govemment, which is hostile to the Constitution. 156

Where a body exercises power, confetTed by a statute, it is obvious that

it is exercising governmental power in its ordinmy sense. There is the authority
of the State behind its acts (assuming them to be intra vires). This is why even
a Board of Trustees constituted by a Statute has been, in the U.S.A. taken to
be an agency of the State.

An instance of judicial creativity is to be found in the expanding

connotation being given to the term 'authmity' in Article 12. 157 After the famous

155. Sengupta, P.K., India: Constitutional Dynamics in a Changing Polity (1991).

156. Basu, D.D., Commentary on the Constitution ofIndia (1973)
157. Jain, MP. Indian Constitutional Law (1987)
 137

cases of International Airport Authority158 and Ajay Hasia159, it has now become
well-established that a body is an 'authority' under Article 12 if it can be
characterised as an 'instrumentality' of the Government . To be so, the
concerned body has to fulfil two basic tests, viz. : funding and control. Does
the Government foot a substantial part of the bill for the operations of the
body in questions? Does the Government exercise effective and pervasive
control over the body concerned? It does not matter what is the structure of
the body in question : it may be statutory or non-statutory : it may be set up by
or under an Act of the Legislature or even administratively; it may be a
registered society, a co-operative society, or a Government company. It does
not also matter whether the body in question has been set up initially by the
Government or private enterprise. It does not matter what functions does the
body discharge : governmental, semi-governmental, non-governmental,
educational, commercial, banking, social service. So long as a body is
characterised as an 'instrumentality' of the Government, if falls within the
purview of Article 12 as an 'authority'.

Once a body is characterised as an 'authority', three important incidents

invariably follow : (1) It becomes subject to the discipline of fundamental
rights (2) It becomes subject to the discipline of Administrative law; (3) It
falls within writ jurisdiction of the Supreme Court under Article 3 2 and of the
High Courts under Article 226. Thus, as the range of Article 12 expands, so
does the ambit of judicial review.

When granting a remedy against State action for infraction of

fundamental rights, the Supreme Court is being guided by the defmition of
the 'State' in Article 12 of the Constitution. 160

From the definition of the State in Article 12 it is clear that executive

action can be complained of where it infringes fundamental rights.

158. AIR 1979 SC 1628.

159. AIR 1981 SC 487.
160. G.C.V Subba Rao, Indian Constitutional Law (1998)
 138

It must be remembered that the Fundamental Rights are constitutional

guarantees given to the people of India and are not merely paper hopes or
fleeting promises and so long as they fmd a place in the Constitution, they
should not be allowed to be emasculated in their application by narrow and
constricted judicial interpretation. The court should be anxious to enlarge the
scope and width of the Fundamental Rights by bringing within their sweep
evety authority which is an instrumentality or agency of the government or
through the corporate personality of which an instrumentality or agency of
the govemment or through the corporate personality of which the government
is acting, so as to subject the government in all its myriad activies, whether
through natural persons or through corporate entities, to the basic obligation
of the fundamental Rights. 161

Expansion of the Defmition of the 'State' to include the Judiciary for

greater judicial accountability. The judiciaty which imparts justice is not
accountable to the people of India. Some exercise has to be done to consider
the question of naming "judiciaty" as part of state under Article 12 of the
Constitution. 162

There is no reason why the expression 'other authorities' in Article 12

should be confmed only to statutmy or constitutional bodies. 163 Political patties,
for example, even though they are not statutory organisations, and are in fmm
private clubs, are to be with in this category. So also ru·e labour unions on
which statutes confer the right of collective bargaining. It is hoped that in the
years to come the courts will go a step forwru·d and interpret the expression
'other authorities' in Article 12 should be confined only to statutmy or
constitutional bodies. Political patties, for example, even though they are not

161. C.K. Takwani, "other authorities" within the meaning ofArticle 12 ofthe Constitution,
(1986) 4 sec (J).
162. G.B Reddy, Fifty years oflndian Constitution -A Constitutional imperative to Review
its working, IBR 2000.
163. Y.R. Haragopal Reddy, Article 12 of the Constitution and the new Horizons offonda
mental rights, IBR 1984.
 139

statutory organisations, and are in form plivate clubs, are to be within this
category. So also are labour unions on which statutes confer the light of
collective bargaining. It is hoped that in the years to come the courts will go a
step forward and interpret the expression 'other autholities' in Article 12 in
such a way that it will include within its fold bodies plivate in character but
dealing with public rights to make them accountable to patt III of the
Constitution as is being done in the United States of Amelica. The Courts can
fully utilise the new trend set by Airports Authority164 to expand the constituency
of fundamental tights to a greater extent so as to prohibit arbitrariness and
disclimination and to extent so as to prohibit arbitrariness and disclimination
and to extend the blessings ofliberty and equality proclaimed in the preamble
to the constitution and transformed into the body of the Constitution in terms
of Fundamental lights and directive plinciples to one and all.

Fundamental Rights are enforceable against the State and writ

jurisdiction of the supelior courts is also available mainly against the State.
The definition of the word "State" has been given in Article 12 and usually
the threshold objection to the maintainability of a wlit petition is that the
respondent is not State within the meaning of Article 12. 165

The Supreme Court by an imaginative and innovative interpretation

has given an expansive meaning to the term "other authority" and has held
that it included corporations, government companies and even registered
societies which functioned as mere surrogates of the government, even though
in law they might have a sepat·ate and independent existence. The logic applied
has been that the directive plinciples visualised a welfare state with increased
and manifold functions and the State could perform these additional functions
either departmentally or by creating independent entities and the government
could not be allowed to cheat the people of their fundamental rights by merely
transferring its functions to other bodies. These other bodies were merely
agencies or instrumentalities of the government and as such they were subject

164. AIR 1979 SC 1628.

165. S.P Sathe, Constitutional Law- I (Fundamental Rights), ASIL (1992).
 140

to the fundamental rights to the same extent and in the same manner as the
government. 166

In the recent past a number of decisions have come up at the Supreme

Comt as well as at the High Courts level which shall be thoroughly surveyed
and analysed in the present research work. There are some of the articles which
appeared in the law Journals and the reports dealing with the various aspects
of the matter. The subject has been dealth with in the Constitutional law
commentaries by the authors. However, there is a research gap in evolving the
·clear picture so as to make a constitutional lawyer to understand about the
clear test of instrumentality and the enforcement of Fundamental Rights. There
is need of research in this area. The present work will make an attempt to fill
up this gap.

In the present study it may be noted that the expression "other

authorities" under Article 12 of the Indian Constitution is not free from
ambiguity. And because of this ambiguous nature of expression the
investigation is needed to fmd out the clear picture of the said term. This
investigation leads to the finding of new facts by searching and analysing the
existing facts which may be collected from various books, first rate law journals,
opinions of the academicians and judicial decisions delivered by the Supreme
Court and High Courts.

A good number of decisions have come up since the last quarter of the
20th Century. The issue of interpretation of the expression "other authorities
specifically started from its interpretation by the Supreme Court in Sukhdev
Singh s 167 case. This interpretation was further developed and institutionalized
168
in Ajay Hasia s case by evolvirig the test for determining the agency or
instrumentality of the State. The issue however, has been subjected to further
scrutiny by the Apex Court as to the evolution of the parameters of the agency

166. Udai Raj Rai, Reach ofFundamental Rights, Vol. 36 JILl (1994) at 292.
167. AIR 1975 SC 1331.
168. AIR 1981 SC 487.
 141

169
or instrumentality test. A significant question arose in the MC Mehta case
as to the inclusion of the private corporation into the expression other authorities
within the definition of the State under Article 12. This question although not
finally decided by the Supreme Court and left for future occasion to be
determined, gave ample scope for academicians to infer a positive assertion.
Another significant question in this respect is whether it is necessary to include
any authority within the expression "other authorities" so as to make it amenable
to the limitation of the Fundamental Rights. This was subject to further
elaboration by the Supreme Court in Unni Krishnan s 17° Case. Further in the
matter of public interest litigation the Supreme Court has extensively interpreted
the definition of the State for the enforcement of Fundamental Rights.

169. AIR 1987 SC 1086.

170. AIR 1993 SC 2178.