Module 7

Foundation of Fundamental Rights & Concept of State

• Fundamental Rights are claimed mostly against the ‘state’.
• Article 12 gives an extended significance to the term ‘state’.
• Art. 12 clarifies that the term ‘state’ occurring in Art. 13(2),
or any other provision concerning Fundamental Rights, has
an expansive meaning. According to Art. 12, the term ‘state’
includes—
(i) the Government and Parliament of India:
(ii) the Government and the Legislature of a State;
(iii) all local authorities; and
(iv) other authorities within the territory of India, or under the control
of the Central Government
• The actions of any of the bodies comprised within the term
‘state’ as defined in Art. 12 can be challenged before the
courts under Art. 13(2) on the ground of violating
Fundamental Rights
“OTHER AUTHORITIES”.

• The most significant expression used in Art. 12 is “other

authorities”
• This expression is not defined in the Constitution. It is, therefore,
for the Supreme Court, as the Apex Court, to define this term.
• wider the meaning attributed to the term “other authorities” in
Art. 12, wider will be the coverage of the Fundamental
Rights
• The interpretation of the term ‘other authorities’ in Art. 12 has
caused a good deal of difficulty, and judicial opinion has
undergone changes over time
• Today’s government performs a large number of functions
through various autonomous bodies through statutory and non-
statutory body because of the prevailing philosophy of a social
welfare state
• Multiple questions have been raised whether such bodies may be
included within the coverage of Art. 12

• The Supreme Court has developed the concept of an

“instrumentality” of the state

• Any body which can be regarded as an “instrumentality” of the

state falls under Art. 12

• The reason for adopting such a broad view of Art. 12 is that the
Constitution should, whenever possible, “be so construed as to
apply to arbitrary application of power against individuals by
centres of power
Evolution of Other Authorities

1. University of Madras v Shanta Bai AIR 1954 Mad 67

Facts:
• In 1949 a new college called the Mahatma Gandhi Memorial College was founded in
the town of Udipi and affiliated to the University of Madras.
• While granting affiliation, the Syndicate gave permission for the admission of only 10
girl students in the Junior Intermediate class as a temporary measure for that year
and directed that in future no women students should be admitted without the special
sanction of the syndicate.
• On 24-7-1951, the petitioner Shantha Bai applied for admission to the Intermediate
course in this college, but her application was refused by the Principal on the ground
that girl students would not be admitted.
• Thereupon, she filed the petition out of which the present appeal arises for the issue
of a writ of mandamus against the Principal of the College to admit her to the
Intermediate course.
• The first respondent to this application was the University of Madras and the second,
the Principal of the college
• The question is whether the University can be held to be "local or other
authority" as defined in Article 12 to have a claim of violation of Article 15
against it
• Held: The University of Madras is a body corporate created by Madras Act VII of
1923. It is not charged with the execution of any Governmental functions; Its
purpose is purely to promote education. Though Section 44 of the Act provides
for financial contribution by the local Government, the University is authorized
to raise its own funds of income from fees, endowments and the like. It is a
State-aided institution, but it is not maintained by the State.
• The Court leaned on the distinction between State-maintained universities
and State-aided universities adopted in several decisions pronounced by the
State Courts in America.
• Adopting therefore the principles laid down in the American authorities, it was
held that educational institutions will be within the purview of Article 15(1), only
if they are State-maintained and not otherwise; and that the regulations of the
University of Madras, which is state-aided & not State-maintained are not within
2. Rajasthan State Electricity Board v. Mohanlal, AIR 1967 SC
1857
• The Rajasthan State Electricity Board was a corporate body that had
been constituted under an Act (the Electricity Supply Act, 1948), for the
purposes of supplying electricity within the State of Rajasthan
• The Supreme Court ruled that a State electricity board, set up by a
statute, having some commercial functions to discharge, would be an
‘authority’ under Art. 12.
• The Court emphasized that it is not material that some of the powers
conferred on the concerned authority are of commercial nature.
• This is because under Art. 298, the government is empowered to carry
on any trade or commerce.
• Thus, the Court observed: “The circumstance that the Board under
the Electricity Supply Act is required to carry on some activities
of the nature of trade or commerce does not, therefore give any
indication that the ‘Board’ must be excluded from the scope of
the word ‘state’ is used in Art. 12.”
3. Sukhdev v. Bhagatram, AIR 1975 SC 1331
• Three statutory bodies, viz., Life Insurance Corporation, Oil and
Natural Gas Commission and the Finance Corporation,
established under the Life Insurance Corporation Act, 1956, Oil
and Natural Gas Commission Act, 1959 and the Industrial
Finance Corporation Act, 1948 were held to be “authorities” and,
thus, fall within the term ‘state’ in Art. 12
• Court perused multiple provisions in the above stated statutes
and came to a conclusion that many provisions indicated at each
stage that the creation, composition of membership, the
functions and powers, the financial powers, the audit of
accounts, the returns, the capital, the borrowing powers,
the dissolution of the Commission and acquisition of and for
the purpose of the company and the powers of entry are all
authority and agency of the Central Government
• These corporations do have independent personalities in the eyes
of the law, but that does not mean that “they are not subject to
the control of the government or that they are not
4) Ramanna [Link] v. International Airport Authority, AIR 1979 SC
1628
• FACTS: A notice inviting tenders for putting up and running a second class
restaurant and two Snack bars at the International Airport Bombay was
issued by the International Airport Authority which is a corporate body
constituted under the International Airport Authority Act, 43 of 1971.
• The notice stated in the clearest terms that "Sealed tenders in the
prescribed form are here by invited from Registered IInd Class
Hoteliers having at least 5 years' experience for putting up and running a
IInd Class Restaurant and two Snack bars at this Airport for a period of 3
years“
• The only tender which was complete and fully complied with the terms and
conditions of the tender form was that of the 4th respondents and the offer
contained in that tender was also the highest amongst all the tenders.
However they did not satisfy the exact requirements as stated in the notice.
• Upon further query by the Airport Officer in this respect the respondents
manage to produce satisfactory evidences that even thought they did not
meet the essential requirements they still had a considerable experience
equivalent to IInd Class Hoteliers
• The appellant too was not a registered 2nd class hotelier with 5 years' experience
and was in the same position as the 4th respondents vis-a-vis this condition of
eligibility and he also could have submitted his tender and entered the field of
consideration for award of the contract, but he did not do so because of this
condition of eligibility which he admittedly did not satisfy.

• Such a departure from the standard or norm of eligibility had the effect of
denying equal opportunity to the appellant and others of submitting their
tenders and being considered for entering into contract for putting up and
running the restaurant and two snack bars.

• The action of the 1st respondent in accepting the tender of the 4th respondents
had, therefore the effect of denying him equality of opportunity in the matter of
consideration for award of the contract and hence it was unconstitutional as
being in violation of the equality clause
• There are several factors which may have to be considered in determining whether a

corporation is an agency or instrumentality of Government.

• We have referred to some of these factors and they may be summarized as under:

• whether there is any financial assistance given by the State, and if so, what is

the magnitude of such assistance

• whether there is any other form of assistance, given by the State, and if so,

whether it is of the usual kind or it is extraordinary,

• whether there is any control of the management and policies of the

corporation by the State and what is the nature and extent of such control,

• whether the corporation enjoys State conferred or State protected monopoly

status and

• whether the functions carried out by the corporation are public functions

closely related to governmental functions

• We may point out that it is immaterial for this
purpose whether the corporation is created by a
statute or under a statute. The test is whether it is an
instrumentality or agency of the Government and not as
to how it is created. The inquiry has to be not as to
how the juristic person is born but why it has been
brought into existence. The corporation may be a
statutory corporation created by a statute or it may be a
Government Company or a company formed under the
Companies Act, 1956 or it may be a society registered
under the Societies Registration Act, 1860 or any other
similar statute. Whatever be its genetical origin, it would
be an "authority" within the meaning of Article 12 if it is
an instrumentality or agency of the Government and that
would have to be decided on a proper assessment of the
• If a statutory corporation, body or other authority is an
instrumentality or agency of Government, it would be an
'authority' and therefore 'State' within the meaning of that
expression in Article 12.
• Multiple provisions of the International Airport Authority Act, 1971
were perused and certain features of the 1st respondent which are
eloquent and throw considerable light on the true nature of the 1st
respondent.
• These provisions clearly show that every test discussed above is
satisfied in the case of the 1st respondent and they leave no
doubt that the 1st respondent is an instrumentality or agency
of the Central Government
• The action of the 1st respondent in accepting the tender of the
4th respondents, even though they did not satisfy the
prescribed condition of eligibility, was clearly discriminatory,
since it excluded other person similarly situate from tendering
for the contract and it was plainly arbitrary and without reason
• The question regarding the status of a non-statutory body was finally answered
in Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487
• The Regional Engineering College, Srinagar (hereinafter referred to as the
College) is one of the fifteen Engineering Colleges in the country sponsored by
the Government of India. The College is established and its administration and
management are carried on by a Society registered under the Jammu
and Kashmir Registration of Societies Act, 1898
• The petitioners in the writ petitions applied for admission to the first semester of
the B.E. which required a written examination and then a viva voce test .
• The case of the petitioners was that the interview of each of them did not last for
more than 2 or 3 minutes per candidate on an average and the only questions
which were asked to them were formal questions relating to their parentage and
residence and hardly any question was asked which would be relevant to any of
the four factors for which marks were allocated at the viva voce examination.
• When the admissions were announced, the petitioners found that though they
had obtained very good marks in the qualifying examination, they had not been
able to secure admission to the college because the marks awarded to them at
the viva voce examination were very low and candidates who had much less
marks at the qualifying examination, had succeeded in obtaining very high
marks at the viva voce examination and there by managed to secure admission
in preference to the petitioners
• A society registered under the Societies Registration Act running the
regional engineering college, sponsored, supervised and financially
supported by the Government, was held to be an ‘authority’.
• Money to run the college was provided by the State and Central
Governments. The State Government could review the functioning of the
college and issue suitable instructions if considered necessary. Nominees
of the State and Central Governments were members of the society
including its Chairman.
• The Supreme Court ruled that where a corporation is an instrumentality
or agency of the government, it must be held to be an authority under Art.
12.
• “The concept of instrumentality or agency of the government is not
limited to a corporation created by a statute but is equally
applicable to a company or society….”
• Thus, a registered society was held to be an ‘authority’ for the purposes of
Art. 12.
• Ajay Hasia has initiated a new judicial trend, viz., that of expanding
the significance of the term “authority”
In Ajay Hasia, The Supreme Court laid down the following tests to adjudge
whether a body is an instrumentality of the government or not:
(1) If the entire share capital of the body is held by the government,
it goes a long way towards indicating that the body is an instrumentality of
the government.
(2) Where the financial assistance given by the government is so
large as to meet almost entire expenditure of the body, it may indicate
that the body is impregnated with governmental character.
(3) It is a relevant factor if the body enjoys monopoly status which is
conferred or protected by the state.
(4) Existence of deep and pervasive state control may afford an
indication that the body is a state instrumentality.
(5) If the functions performed by the body are of public importance
and closely related to governmental functions, it is a relevant factor
to treat the body as an instrumentality of the government.
(6) Specifically, if a department of Government is transferred to a
corporation, it would be a strong factor supportive of this inference of the
corporation being an instrumentality or agency of Government.
Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology &
Ors. (2002 5 SCC 111)
• The picture that ultimately emerges is that the tests formulated in
Ajay Hasia are not a rigid set of principles so that if a body
falls within any one of them it must, ex hypothesi, be
considered to be a State within the meaning of Article 12.
• The question in each case would be whether in the light of the
cumulative facts as established, the body is 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.
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649
BCCI is a Society registered under the Tamil Nadu Societies Registration Act which is said to
be recognized by the Union of India, Ministry of Youth Affairs and Sports. Zee Telefilms Ltd is
one of the largest vertically integrated media entertainment groups in India. The Board floated
notice inviting tenders for exclusive TV rights. Several groups bid for the rights such as Zee
Telefilms, ESPN Star Sports. After several rounds of negotiations BCCI accepted offer of Zee
Telefilms against which ESPN Star Sports filed a writ petition. This led to BCCI cancelling the
entire tender process , for which Zee file a writ under Art 32

Held:
Mere regulatory control whether under statute or otherwise would not serve to make a body a
part of the State. Hence when the facts revealed
(1) The Board of Control of Cricket in India was not created by a statute;
(2) No part of the share capital of the Board was held by the Government;
(3) Practically no financial assistance was given by the Government to meet the whole or entire
expenditure of the Board;
(4) The Board did enjoy a monopoly status in the field of cricket but such status is not State
conferred or State protected.
(5) There was no existence of a deep and pervasive State control and the control, if any, is only
regulatory in nature as applicable to other similar bodies.
(6) The Board was not created by transfer of a government owned corporation and was an
autonomous body.
• The Court noted that the Union of India has been exercising
certain control over the activities of the Board in regard to
organizing cricket matches and travel of the Indian team abroad
as also granting of permission to allow the foreign teams to come
to India
• In the absence of any authorization, if a private body chooses to
discharge any functions or duties which amount to public duties
or State functions which is not prohibited by law then it may be
considered to be an instrumentality of the State
• By a majority of 3:2 this Court ruled that respondent-BCCI was
not ‘State’ within the meaning of Article 12
• The majority view favours the view that BCCI is amenable to
the writ jurisdiction of the High Court under Article 226
even when it is not ‘State’ within the meaning of Article 12.
The rationale underlying that view if we may say with utmost
respect lies in the “nature of duties and functions” which the
BCCI performs.
• BCCI vs. Cricket Association of Bihar and Ors., (2015) 3 SCC 251
• The Court observed that all the activities of BCCI are undertaken with the
tacit concurrence of the State Government and the Government of India
who are not only fully aware but supportive of the activities of the Board.
• The State has not chosen to bring any law or taken any other step
that would either deprive or dilute the Board’s monopoly in the field
of cricket.
• On the contrary, the Government of India have allowed the Board to select
the national team which is then recognized by all concerned and applauded
by the entire nation including at times by the highest of the dignitaries
when they win tournaments and bring laurels home
• The functions of the Board are clearly public functions, which, till
such time the State intervenes to takeover the same, remain in the nature
of public functions, no matter discharged by a society registered under the
Registration of Societies Act
• BCCI may not be State under Article 12 of the Constitution but is
certainly amenable to writ jurisdiction under Article 226 of the
Constitution of India.
Is Judiciary State?
• Judiciary is not expressly mentioned in Article 12 and a great
amount of dissenting opinions exist on the same matter.
• Many Constitutional scholars such as H.M. Seervai believe that
the Indian Judiciary should be a part of the definition of State
under Article 12. The reasoning is that under various articles, it
has been granted with the powers of a state.
• Bringing judiciary entirely under Article 12 causes a great deal of
confusion as it comes with an attached inference that the very
guardian of our fundamental rights is himself capable of infringing
them.
• In Rupa Ashok Hurra v. Ashok Hurra the Apex Court reaffirmed
and ruled that no judicial proceeding 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.
• This was further reiterated in cases such as Naresh
Shridhar Mirajkar And Ors vs State Of Maharashtra and
Riju Prasad Sarmah v. the State of Assam.
• Thus, it is apparent that the Supreme Court has allowed
its administration to be under review but has prevented
all obstructions and probable challenges to its judicial
function