Article 12

Abovementioned Article 12 of the Indian Constitution is the foundation of the part III of the Constitution, which deals with Fundamental Rights provided to the citizens by the Constitution. The provided Fundamental Rights are enforced against the state (arbitrary action of the state).

​To understand the word state, or to ensure what comes under the purview of the state, it is very necessary to correctly interpret Article 12. This Article was subjected to litigation many times, and with the course of time, the Hon’ble Apex Court has broadened the interpretation of Article 12.

​People usually seek to enforce their rights against the arbitrary action of the state;most of the time, there are ambiguities regarding which institution must be considered as “the State”. The phrase “other authorities” in the abovementioned article adds to these ambiguities; this phrase is one of the most litigated phrases of the Constitution.

​Madras High Court in University of Madras v. Shanta Bai, reported in AIR 1954 Mad 67, adopted the restrictive interpretation of the phrase “other authorities” by applying the rule of Ejusdem generis. This rule states that when a general word follows specific words, then the general word must be interpreted as belonging to the same class.

​As Article 12 says, Government and Parliament of India, Government and Legislature of States, and other authorities... So, the Court interpreted that the specific words (Government, Parliament, Legislature) refer to sovereign or governmental authorities. Therefore, “other authorities” must also mean authorities exercising sovereign governmental functions.

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Later, Hon’ble Apex Court in many decisions expanded the scope of the phrase “other authorities”. The turning point was the decision of Rajasthan Electricity Board v. Mohan Lal, reported in (1967) 3 SCR 377, in this decision Hon’ble Supreme Court held that Ejusdem generis does not apply to the Article 12, and the phrase “other authorities” is wider expression and this expression includes all authorities created by statute on whom powers are conferred by law, not just sovereign bodies. So, entities like Life Insurance Corporation(LIC), Oil and Natural Gas Corporation (ONGC) could also be treated as states in the scope of other authorities.

​In Sukhdev Singh v. Bhagatram, reported in (1975) 1 SCC 421, Justice Mathews gave a concurring opinion that the concept of the state should not be confined to traditional government departments. Modern welfare state functions are discharged through corporation, and the real test is functional and financial control, not merely form. This judgment shaped the other decisions in future.

​Later in R.D. Shetty v. International Airport Authority of India, reported in (1979) 3 SCC 489 Hon’ble Supreme Court laid down the instrumentality/ agency test, which lays down the following factors, and if these factors exist, then the body is the State.

• Financial Control.

• Functional Control.

• Administrative Control.

• Government Origin.

• Public Duty.

In Ajay Hasia v. Khalid Mujib Sehravardi, reported in (1981) 1 SCC 722 Hon’ble Apex Court expanded the principles laid down in the decision of R.D. Shetty and laid down the six-factor test:

• The entire share capital is held by the government.

• Deep and Pervasive State Control

• Public importance functions.

• Monopoly status.

• Government financial assistance.

• Financial Assistance Meeting Almost Entire Expenditure.

In Zee Telefilms Ltd. v. Union of India, reported in (2005) 4 SCC 649, the Hon’ble Supreme Court held that the Board of Control for Cricket in India (BCCI) is not the State under Article 12, but a writ may lie under Article 226 if a public function is performed.