NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

CONSTITUTIONAL LAW

SCOPE OF ARTICLE 12 AS EXPANDED BY THE INDIAN JUDICIARY

Submitted by:
 ABSTRACT

It refers to authorities other than those of local self- government, who have power
to make rules, regulations, etc. having the force of law.

According to article 12, the term state includes-

The government and parliament of india

The government and the legislature
All local authorities
Other authorities within the territory of India, or under the control of the
central government.
In the case of R.D.Shetty v/s International Airport Authority1, the Court laid down

five tests to be considered other authority:

Entire share capital is owned or managed by State.

Enjoys monopoly status.
Department of Government is transferred to Corporation.
Functional character governmental in essence.
Deep and pervasive State control.
Object of Authority
So this paper deals with the above points by which we can understand that what are

other authorities and what are its main components. This research paper gives you

the full overview of article 12 other authorities, although this is very wide topic

but the author tries to give the whole idea of article 12 and its one of the

component which is others authorities very briefly.

1
1979 SCR (3)1014.
 Article 12: OTHER AUTHORITIES

While the government acting departmentally, or through officials, undoubtedly,

falls within the definition of state under Art.122doubts have been cast as regards
the character of autonomous bodies. Bodies created by a statute, bodies that whose
management has government representatives, bodies under the administrative
control of the government, bodies funded entirely by the government, bodies
performing government-outsourced tasks, and so on.

Which of these fall within Article 12, and why?

The first case involved to provide the answer to the above question was the case of
Electricity Board, Rajasthan v. Mohan Lal3.The Electricity Boar was set up by a
statute to carry out commercial activities. Thus the Board argued it could not
be brought within the ambit of Article 12. It cited decisions from the High Courts
of Madras, Mysore and Punjab to contend that Article 12 was limited to a person
or a group of persons who exercise the legislative or executive functions of a State
or through whom or through the instrumentality of whom the State exercises its
legislative or executive power.

The Supreme Court held that the expression other authorities in Art. 12 will
include all constitutional or statutory authorities on whom powers are
conferred by law. Or, in other words, they key test is a statutory connection
between the government and the body in question. Therefore the board was found
to be come under the scope of Art. 12.

2
K.A. Karim&Sons v. I.T.O.,1983 Tax. L.R. 1168.
3
(1967) 3 S.C.R. 377
Following the judgment of Electricity Board, Rajasthan v. Mohan Lal, it was held
in Sukhdev Singh v. Bhagatram4that Oil and Natural Gas Commission, Life
Insurance Corporation and Industrial Finance Corporation are authorities within
the meaning of Article 12 of the Constitution and therefore they are State.

After this in the landmark case of RamanaDayaramShetty v International Airport

Authority of India5the question raised was whether the International Airport
Authority was subject to Article 14 obligations.

It was held in this case that the State must, in some way, be closely connected with
the workings of the entity in question. The functional approach, on the other
hand, brings within Article 12 all entities that perform State-like functions. The
Court held that that there could be no cut and dried formula that would provide
the answer, and proceeded to examine a range of alternatives. Citing the American
doctrine of State action, it noted that extensive and unusual financial assistance
from the government might be a relevant consideration. The same considerations
applied to an unusual degree of [State] control over the policies and management
of the corporation.6

For the first time this case mulled over the involvement of a public function as
an important criterion to define the state under Art. 12.

In the paragraph 16, however, the Court held that the another factor which may
be regarded as having a bearing on this issue and it is whether the operation
of the corporation is an important public function. It is difficult to determine
what functions are governmental, and what are not, and noting that the

4
AIR 1967 SC 1857
5
(79) A.S.C 1628
6
(paragraph 15).Id.
answer to this question is changing continuously, as the place of the State in
society changes over the years.

Nonetheless, ultimately it seemed to settle upon a largely descriptive test: the

modern State operates a multitude of public enterprises and discharges a host of
other public functions. If the functions of the corporation are of public importance
and closely related to governmental fun ctions, it would be a relevant factor in
classifying the corporation as an instrumentality or agency of Government.7

But there is a very important problem with this: what one do when the State
retreats from functions that it used to perform as is happening under the present,
neo-liberal model? It is quite clear that a descriptive test can be of no help in such a
situation: a normative baseline of State function is essential.

Therefore in the present scenario where the public companies operated and
controlled by the government are carrying disinvestment process and converting
into private companies and also host of services are being provided by them which
are of huge public importance the scope of the definition of the Art. 12 needs to be
expanded.

Also, the subsequent cases relevant to the scope of Art. 12 talk more about the
control and governance of the govt. departments and less about the public function
carried out by the bodies(statutory and non-statutory).

The case of Ajay Hasia v. Khalid Mujib8the question was whether the Regional
Engineering College of Srinagar was State within the meaning of Article 12. The
College had been established, and its administration was carried on, by a Society
that was registered under the J&K Societies Act. Consequently, the first argument

7
(Paragraph 16)Id.
8
(81) A. S.C 487
of the Society was that it had not been set up by the government under a statute,
and so could not come within the meaning of Article 12. Following R.D. Shetty,
the Court rejected this contention.

The court focused on the six of the features of state present at various points in
the R.D. Shettyjudgment. But In R.D. Shetty, government control (which could be
financial, or administrative, or both) was treated as being equally important as the
performance of a public function. Not so in Ajay Hasia, where the judgment was
primarily about preventing the State from acting colourably via a corporate
shield.The Court paid no attention to the function performed by the Society
that of higher education in its analysis.

In the next case of Pradeep Kumar Biswas v. Indian Institute of Chemical

Biology9, a judgment delivered by a seven-judge bench held that the Council of
Scientific and Industrial Research was State within the meaning of Article 12. In
Pradeep Kumar Biswas, Justice Ruma Pal went into the history of the Supreme
Courts Article 12 jurisprudence, and distinguished between a narrow and a
broad approach to Article 12. In her judgment, the functional test is erased out of
history.

Having listed Ajay Hasias six factors, Justice Ruma Pal decided to crystallize
them further. She held, was whether in the light of the cumulative facts as
established, the bodyis 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.

9
(2002) 5 SCC 111.
Here, the entire focus is on control, and the public-function aspect has disappeared
altogether.

If Pradeep Kumar Biswas impliedly did away with the public function test, Zee
Telefilms v.Union of India10 did so expressly. In that case, the question was
whether the Board of Control for Cricket in India was State within the meaning
of Article 12. The Board argued that its autonomous nature took it out of the ambit
of Article 12, per Pradeep Kumar Biswas.

Zee Telefilms, on the other hand, pointed to the governmental functions

exercised by the Board in the area of cricket. The Court held in favour of the
Board. Following Pradeep Kumar Biswas, it noted that the Board was not created
by statute, the Government held no share capital, provided no financial assistance,
conferred no monopoly, exercised no pervasive control, and had not transferred a
government-owned corporation. Consequently, Article 12 was not applicable.
Responding to the petitioners contentions, the Court then stated: Even assuming
that there is some element of public duty involved in the discharge of the Boards
functions even then as per the judgment of this Court in Pradeep Kumar Biswas
that by itself would not suffice for bringing the Board within the net of other
authorities for the purpose of Article 12 11

The Court also rejected the contention that the control of cricket was in the nature
of a State function, holding that the State/Union has not chosen the Board to
perform these duties nor has it legally authorised the Board to carry out these
functions under any law or agreement. It has chosen to leave the activities of
cricket to be controlled by private bodies out of such bodies own volition (self-
arrogated). In such circumstances when the actions of the Board are not actions as

10
(2005) 4 SCC 649.
11
(paragraph 25)Supra.
an authorised representative of the State, can it be said that the Board is
discharging State functions? The answer should be no. In the absence of any
authorisation, if a private body chooses to discharge any such function which is not
prohibited by law then it would be incorrect to hold that such action of the body
would make it an instrumentality of the State.

But what if the State chooses to leave the function of policing or maintaining
prisons or national defence or the judicial system to private parties?

Here, the problem of descriptive baseline for State function comes again. With a
descriptive baseline, as the State retreats, the areas within which fundamental
rights operate become more and more constricted. In fact, this is precisely the
argument that the Court made at the end of Zee Telefilms. Cases such as Rajasthan
Electricity Board and Sukhdev Singh, it held, were decided in a different socio-
economic climate; now, on the other hand, the State is distancing itself from
commercial activities and concentrating on governance rather than on
business. Yet surely, this cannot be right.
CONCLUSION

Therefore, each judgment laid down above tries to define the Other Authorities
and in a way expands the scope of Art. 12. Today the modern government
functions through various statutory, non-statutory bodies and undertakes a
multitude of socio-economic functions. The todays government focuses more on
the functions of sheer importance to the country and has delegated or disinvested
most of its functions to the private bodies. In such scenario, public functions are
increasingly performed by the private co. and organizations. It is inevitably
required that the government protects the rights of the citizens which may get
violated by these private bodies. Also Bhagwati J. observed, To use the corporate
methodology is not to liberate the governments from its basic obligations to respect
the fundamental rights and not to override them. The mantle of a corporation may
be adopted in order to free the government from the inevitable constraints of red-
tapism and slow motion but by doing so, the government cannot be allowed to do
play truant with the basic human rights.12

Also, the recommendation of the national commission to review the working of the
Constitution to increase the scope of the article 12 represents the need of the day to
include the private bodies under the purview of judicial review in certain cases.
The commission has recommended that in article 12 of the Constitution, the
following explanation should be added; Explanation: - In this Article, the
expression other authorities shall include any person in relation to such as it
functions which are of a public nature.

12
AIR 1981 SC 487
BIBLOGRAPHY

MP Jain, Indian constitution law, 7th edition

Introduction to the Indian constitution by Durgadas basu, 21st edition
Manupatra.com
Scconline.com