State under Article 12 — KSLU Constitutional Law Notes

“State” under Article 12

Your Fundamental Rights are a shield — but a shield only works if you know who it protects you against. Article 12 answers exactly that. When the Supreme Court had to decide whether a cricket board (BCCI) or a government-funded research council was “the State”, crores of rupees and thousands of employees' rights turned on one definition. That is why “State” is the very first gate of Part III: no “State”, no writ.

The doorway to Fundamental Rights

Most Fundamental Rights in Part III are guaranteed against the State, not against your neighbour. So before you can complain that your right was violated, you must show the violator is “the State”. Article 12 is the definition clause that opens the door.

Think of it as the guest list for a “you can be sued for rights violations” party: Art 12 names who is on the list. It says “the State” includes four categories (the word includes signals the list is illustrative, not exhaustive):

The Government and Parliament of India — the Union executive and the Union legislature.
The Government and Legislature of each State — the state executive and the state legislature.
All local authorities — bodies like municipalities, panchayats, district boards and improvement trusts that manage local affairs.
All other authorities — within the territory of India, or under the control of the Government of India. This is the elastic phrase the courts have spent decades stretching.

“Other authorities” — the widening story

The whole examinable action is in that fourth category. The courts widened it step by step so that a government cannot escape the Constitution simply by doing its work through a company or society instead of a department.

Rajasthan Electricity Board v Mohan Lal (1967) — “other authorities” means every authority created by statute and clothed with power, not just bodies performing government functions. This buried the earlier narrow reading.
Sukhdev Singh v Bhagatram (1975) — statutory corporations such as LIC and ONGC are “State”.
R.D. Shetty v International Airport Authority (1979) — Justice Bhagwati laid down an instrumentality/agency test: look at government shareholding, deep and pervasive control, whether the functions are public/governmental, monopoly status, and whether a government department was transferred to it.
Ajay Hasia v Khalid Mujib (1981) — the test applies whatever the body’s legal form; even a society registered under the Societies Registration Act can be “State” if it is an instrumentality of government.
Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) — the settled test today is “deep and pervasive State control”: financial, functional and administrative control by the government. On this test CSIR is “State”.

🔑 The modern test in one line.

A body is “State” under Art 12 if the government holds deep and pervasive control over it — financially, functionally and administratively. Mere regulation or some funding is not enough.

⚠️ DON’T CONFUSE — “State” for a writ under Art 32 vs Art 226.

Art 32 lies only against “the State” for a Fundamental-Rights breach. A High Court under Art 226 is wider — it can issue writs against “any person or authority” for a legal right too, not only the State. So a body that is not Art-12 State may still be answerable under Art 226.

🔎 Full explanation: Why Article 226 Is Wider Than Article 32

🧩 WORKED EXAMPLE — is the writ maintainable?

Facts. An international non-profit research institute terminates an employee. He files a writ under Art 32, claiming it is “State” under Art 12.

Rule. A body is “State” only if the government exercises deep and pervasive control over it (Pradeep Kumar Biswas). Being a public-spirited or international body is not, by itself, enough.

Apply. An international institute is not created or controlled by the Government of India; there is no deep and pervasive State control, so it is not Art-12 “State”. The decoy — that it does “public good” work — does not satisfy the control test.

Conclusion. The writ under Art 32 is not maintainable; his remedy lies in ordinary/labour law (or possibly Art 226 if a public duty is shown).

The other side — when a body is NOT “State”

The widening has limits, and two situations are worth remembering:

Is the judiciary “State”? The courts, when they perform their judicial function of deciding cases, are not treated as “State” for the purpose of a Fundamental-Rights writ — a judicial order said to be wrong is corrected by appeal, not by a writ against the court (Naresh Shridhar Mirajkar v State of Maharashtra, 1967). When the judiciary acts on its administrative side (e.g. hiring staff), however, it can be “State”.
A body under mere regulation is not “State”. Government control must be deep and pervasive; ordinary statutory regulation or a bit of funding is not enough. So the BCCI — which regulates cricket but is not owned or deeply controlled by the government — was held not to be “State” under Article 12 in Zee Telefilms v Union of India (2005), though the Court noted its public functions may still attract Article 226.

Article 12, Constitution of India: “In this Part, unless the context otherwise requires, ’the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

In Simple Terms: for Fundamental Rights, “the State” means the central and state governments and legislatures, local bodies, and any other authority the government deeply controls — the word “includes” keeps the list open-ended.

flowchart TD
    ST["'The State' — Article 12"]
    ST --> G1["Govt & Parliament of India"]
    ST --> G2["Govt & Legislature of each State"]
    ST --> L["All local authorities"]
    ST --> O["Other authorities"]
    O --> T["Deep and pervasive Govt control?"]
    T --> YS["YES = is 'State' (writ lies)"]
    T --> NS["NO = not 'State'"]

Case Laws

Rajasthan Electricity Board v Mohan Lal (1967) — “other authorities” = all statutory authorities with power, not only those doing government functions.
[C-4] R.D. Shetty v International Airport Authority (1979) — laid down the instrumentality/agency test for “State”.
Ajay Hasia v Khalid Mujib (1981) — the test applies whatever the legal form; a registered society can be “State”.
Pradeep Kumar Biswas v IICB (2002) — settled test: deep and pervasive State control; CSIR is “State” (overruling Sabhajit Tewary).
Naresh Shridhar Mirajkar v State of Maharashtra (1967) — a court exercising its judicial function is not “State” for a Fundamental-Rights writ; the remedy against a wrong judicial order is appeal, not a writ.
Zee Telefilms v Union of India (2005) — the BCCI, merely regulating cricket without deep and pervasive government control, is not “State” under Article 12.

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