As mentioned in Article 21 of the Indian Constitution that “no person shall be deprived of his

life or personal liberty except according to a procedure established by law” 1 . It means that a

person can be deprived of the life of the procedure established by law made by the state. So

the question arises what is a state where the definition is given Article 12 of the Indian


Article 12 of the Indian Constitution states that, “definition 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” 2 . As mentioned in

Article 13 states that state shall not make any laws which take away the fundamental rights of

the citizens. It means citizens can protect their fundamental rights from the state. 3

In order to make sure that the state is not exhaustive in nature and can allow other authorities

to ask rights from them, Article 12 is inclusive in nature and has the word other authorities.

There is a vertical relationship between other authorities with the state.


In order to assess the limits of Article 12, it will be important to go through the Debates of the

Constituent Assembly (CAD) as to what functions the state should perform. 4 In his speech on

November 29, 1948, in reaction to Dr. Kamath, Dr. Ambedkar clearly specified that they had

to have a broader connotation of the phraseology of government. Many of the Constituent

Assembly leaders, however, are doubtful about Dr. Ambedkar's strategy. Mr. Naziruddin

Ahmad, who was not persuaded by this approach, was one such founding member. Mr.

Ahmad challenged the concept of expanding the scope of government to include taluka and

local boards in his speech on 9 November 1948. Only one government could exist for him,

one with sovereign power and he mentioned that even if the body performs no function, it

would also be regarded as the state.

Mr. Ahmad’s and Dr. Ambedkar's methods reflect two ways of seeing the state; academically

referred to as structuralist and functionalist. 5 The structuralist searches for the state

1 The Constitution Of India, art. 21, (1950).

2 The Constitution Of India, art. 12, (1950).

3 The Constitution Of India, art. 13, (1950).

4 Shant Swaroop Shant, Babasaheb Dr. B.R. Ambedkar 1137.,

structure within an entity or institution to declare it a state, whereas the functionalist looks at

the core function; if the role is a state function, it would fall within the definition of Article

12. There is a transition of nature of the state by the Apex Court from structuralism to


In initial years it was inclined towards a structural approach. In the case of Rajasthan State

Electricity Board v. Mohan Lal 6 , Justice Bhargava argued that, in order to declare a

particular body a state, that body must be created by a statute and must have the power to

punish. Two criteria can be seen from the above analysis:

1) The statutory body; and

2) The power to punish.

He rejected the principle of ejusdem generis or things of like nature which were evolved in

the case of the University of Madras v. Santa Bai 7 . Nevertheless, by the 1980s, when

Justice KK Mathew's concurrent opinion in Sukhdev Singh v. Bhagatram 8 brought in a new

dimension, this approach slowly diminished. Instead of stressing the criteria set out in RSEB,

Justice Mathew focused on the body's functions. His view opened the doors to the

functionalist; so rather than looking at the structure, the focus turned to a body's function.

Therefore, if a body discharged a high public value function, it could be a state for Justice


The Supreme Court held in the case of Som Prakash v. Union of India 9 that a government

corporation (Bharat Petroleum Corporation) falls within the meaning of the term the

Government used in Article 12. As per Justice V Krishnaiyer, the word other authorities

will include all constitutional or legislative bodies that are given powers to promote economic

activities. Not only is it confined to statutory corporations, but it can also include a

government company, a registered company, or bodies that have some connection with the

government. Nevertheless, the breakthrough came with R.D Shetty v. India's Airport

Authority 10 which gave us the 5 criteria as advocated by Justice P.N Bhagwati. This is a test

to determine if an entity is a state agency or instrumentality, which goes as follows–

5 Virtual state and Constitutionalism, , THE STATESMAN (2019), (last visited

Nov 20, 2019).

6 Rajasthan State Electricity Board v. Mohan Lal, SC. 1857, AIR (1967).

7 University of Madras v. Santa Bai, Mad. 67, AIR (1954).

8 Sukhdev Singh v. Bhagatram, SC 1331, AIR (1975).

9 Som Prakash v. Union of India, SC 212, AIR (1981).

10 R.D Shetty v. India's Airport Authority, SCR (3)1014, (1979).

1. The state's financial resources are the primary source of funding, i.e. the government holds

the entire share capital;

2. Clear and omnipresent state command;

3. Functional character is, in fact, political, meaning that its roles are of public interest or

governmental character;

4. A government department has been moved to a company; and

5. Enjoys the status of a monopoly given or secured by the state.

In Ajay Hasia v. Khalid Mujib Sehravardi 11 , it has been held that whether a statutory body

falling within the purview of the term other authorities is to be considered differently. In this

case, Justice Mathew's opinion became the majority opinion. It evolved the concept of the

juristic veil which means that the state is working behind the instrument or organization. 12 In

the opinion of the minority, the tests set out, in this case, are relevant only for the purpose of

determining whether an entity is an instrument or an agency of the State. By 2005, however,

the criteria were changed again by the Zee Telefilms v. Union of India 13 , in which the

Supreme Court adhered to the Pradeep Kumar Biswas v. Indian Institute of Chemical

Biology 14 ruling and set out three criteria for determining a state:

1) Function;

2) Finance; and

3) Administration.


The judiciary is not expressly mentioned in Article 12 and there are a large number of

dissenting views on the same subject. Bringing the judiciary completely in line with Article

12 causes a lot of ambiguity as it comes with an attached presumption that the very protector

of our fundamental rights is capable of violating them.

In Rupa Ashok Hurra v. Ashok Hurra 15 , the Apex Court reaffirmed and ruled that no

judicial action could be said to violate any of the Fundamental rights and that it is a settled

position of law that superior courts of justice did not fall within the ambit of state or other

authorities under Article 12. It leaves with us with the reasoning that a Superior Judicial body

when acting Judicially would not come under the concept of State but when it conducts some

administrative or related functions e.g. performing investigation, it will fall under the

11 Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, AIR (1981). 

12 1. Ajay_Hasia done.pdf,

(last visited Nov 20, 2019).

13 Zee Telefilms v. Union of India, SC 2677, AIR (2005).

14 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, SCC 111, 5 (2002).