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.
CHANGING NATURE OF THE DEFINITION OF 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),
https://www.thestatesman.com/supplements/law/virtual-state-constitutionalism-1502791018.html (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
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:
2) Finance; and
WHETHER JUDICIARY IS PART OF STATE
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, http://nja.nic.in/P-950_Reading_Material_5-NOV-15/1.%20Ajay_Hasia%20done.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).
15 Rupa Ashok Hurra v. Ashok Hurra, SC 1771, AIR (2002).
definition of state and that remedy could be pursued in that sense only in case of violation of
It is known that there was ambiguity regarding the nature of the state from the University of
Madras case until Pradeep Kumar case where finally the Apex Court gave three criteria for
the definition of the state. Justice Bhargava in the University case followed the structural
approach but the Justice KK Mathew followed a functional approach which means public
function test which expanded the definition of Article 12. The opinion of Justice Mathew
turned into the majority opinion in the case of Ajay Hasia. According to Article 12 of the
Constitution, the term of State does not specifically refer to the judiciary. Therefore, a
substantial amount of controversy surrounds its status in relation to Part III of the