The State under Article 12, and Who Can Be Sued in a Writ
Chapter Six
Syllabus topic 1, "Concepts and Agencies"
Pages 17 to 20 of 430
In one line
A writ for breach of a fundamental right lies only against the State, and Article 12 tells you what the State is.
In the wording a student can write in an exam: Article 12 provides that in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India, the Government and the Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. The whole of Indian administrative law about public corporations is an argument about the words "other authorities".
The provision itself
Article 12 reads: "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."
Four things follow from the words. "Includes" means the definition is not exhaustive. "In this Part" means it is a definition for Part III, the fundamental rights, and it is extended to Part IV by Article 36. "Local authorities" covers municipalities, panchayats and boards. "Other authorities" is the open expression, and it has been construed four times in sixty years.
Why the question matters
Because everything hangs on it. If a body is the State, the fundamental rights bind it directly, an aggrieved person can petition under Article 32, and Articles 14, 16, 19 and 21 supply the grounds of review. If it is not, none of that follows, and the person is left to a contract, a statute, or Article 226 on the narrower footing of a public duty.
The four steps of the Indian law
Step one: a body created by a statute is the State. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, worked in [The Executive, Statutory Authorities and Public Corporations], held that the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation are authorities within Article 12 and that their regulations have the force of law.
Step two: the instrumentality test. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.
Facts. The Airport Authority invited tenders for a restaurant and snack bars at Bombay airport, restricting the invitation to registered second class hoteliers with at least five years of experience. Of six tenders only one was complete and it was accepted, although that tenderer did not answer the description in the notice at all. An unsuccessful person challenged the acceptance.
Held. The Authority is an instrumentality or agency of the Government and so an authority under Article 12. Where the Government or its instrumentality lays down a standard for entering into a contract it is not free to depart from it at pleasure, and accepting a tender that does not satisfy the declared eligibility is arbitrary and offends Article 14. The Court listed the indicia of an instrumentality: the entire share capital held by the Government; financial assistance from the State meeting almost the whole of the expenditure; a monopoly status conferred or protected by the State; deep and pervasive State control; functions of public importance closely related to governmental functions; and a department of Government transferred to the corporation.
The State under Article 12, and Who Can Be Sued in a Writ
Why it matters here. It is the source of every later Article 12 argument, and it did two things at once: it brought a company inside Article 12 and it brought government contracting inside Article 14.
Step three: the tests consolidated, and the veil lifted. Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487.
Facts. A Regional Engineering College registered as a society under a Societies Registration Act rejected candidates after interviews of two or three minutes, in which a third of the total marks was allotted to the viva voce and the questions were about parentage and residence. The society said it was not the State, so no writ lay.
Held. A registered society can be the State. The question is not how the body is legally born but whether it is an instrumentality or agency of Government, and here the composition was dominated by government nominees, the funds came entirely from the Governments, the rules required their approval and the accounts went to them. The corporate veil will be lifted to see the reality. On the merits, allotting a third of the marks to an interview of that kind was arbitrary, and the Court indicated that the oral component should ordinarily be about fifteen per cent.
Why it matters here. It is the case students quote for the tests, and it establishes that the legal form of the body is irrelevant.
Step four: the tests tightened. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, decided on 16 April 2002.
Facts. Employees of a laboratory of the Council of Scientific and Industrial Research, a registered society, challenged their termination by writ. An earlier Constitution Bench had held the Council not to be the State, and the question went to a larger bench.
Held. A seven-judge bench overruled the earlier decision and held the Council to be the State, but restated the test. The Ajay Hasia indicia are not a rigid formula to be mechanically applied. The question in each case is whether the body is financially, functionally and administratively dominated by, or under the control of, the Government, and that control must be particular to the body and pervasive. Where the control is merely regulatory, whether under a statute or otherwise, the body is not the State.
The State under Article 12, and Who Can Be Sued in a Writ
Why it matters here. It is the current test, and the word that decides most modern cases is "pervasive".
Where the line now falls
Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005.
Facts. The Board of Control for Cricket in India terminated a contract for the telecast rights of cricket matches. The broadcaster petitioned under Article 32, arguing that a body which selects the national team and controls the game in India must be the State.
Held. By majority the Board is not the State. It is an autonomous society, not created by statute, not financially or administratively dominated by the Government, and enjoying no State conferred monopoly; discharging functions of public importance and holding a de facto monopoly do not by themselves satisfy the Pradeep Kumar Biswas test. The Court added that although Article 32 was not available, an aggrieved party could seek a remedy under the ordinary law or by a petition under Article 226, because a body which is not the State may still be amenable to that jurisdiction when it discharges a public duty.
Why it matters here. It is the most useful case in the group, because it separates two things students merge: being the State under Article 12, and being amenable to a writ under Article 226.
A worked example
A private unaided engineering college, registered as a trust, receives no government grant, but is affiliated to a State University, must follow the University's syllabus and examination rules, and admits students through a State conducted common entrance test. It rusticates a student without a hearing.
Is it the State? On Pradeep Kumar Biswas, probably not: the control is regulatory, not pervasive, and there is no financial domination. Does a writ lie under Article 226? Very likely yes, because holding examinations and rusticating a student in an affiliated college is the discharge of a public duty connected with the University's statutory functions. Does the student get natural justice? Yes, on either footing, because Article 226 reaches a public duty and because the duty to act fairly does not depend on Article 12.
Distinctions that carry marks
| Article 12 "State" | Amenability under Article 226 | |
|---|---|---|
| Test | Financial, functional and administrative domination, pervasive and particular | Whether the body discharges a public duty or a public function |
| Consequence | Fundamental rights apply directly; Article 32 available | A writ may issue on the public law element only |
| Authority | Pradeep Kumar Biswas | Zee Telefilms |
What this does NOT mean
It does not mean government shareholding decides the question. It is one indicium among six, and Pradeep Kumar Biswas requires the whole picture.
The State under Article 12, and Who Can Be Sued in a Writ
It does not mean the judiciary is the State for Article 12. A judicial order of a court is not challengeable as a breach of a fundamental right, which is what Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, decided, and it is worked in [Article 32: The Supreme Court's Writ Jurisdiction].
It does not mean a body outside Article 12 is beyond the law. It is outside Part III, not outside Article 226 and not outside the ordinary law.
Quick revision
Article 12 defines the State inclusively for Part III: Government and Parliament of India, Government and Legislature of each State, and all local or other authorities. Sukhdev Singh brought statutory corporations in and gave their regulations the force of law. R.D. Shetty created the instrumentality test and its six indicia. Ajay Hasia consolidated the tests and lifted the corporate veil of a society. Pradeep Kumar Biswas made the test financial, functional and administrative domination which is pervasive and particular, and excluded merely regulatory control. Zee Telefilms marks the line and points to Article 226 for a body outside it.
Test yourself
1. State the current test of "other authority". Whether the body is financially, functionally and administratively dominated by or under the control of the Government, that control being particular to the body and pervasive rather than merely regulatory: Pradeep Kumar Biswas.
2. A society running a college gets ninety per cent of its funds from the State, its governing body is appointed by the State and its rules need State approval. Is it the State? Yes on Ajay Hasia and Pradeep Kumar Biswas; the legal form of a registered society is irrelevant and the veil will be lifted.
3. If a body is not the State, is a writ impossible? No. Zee Telefilms holds that a body which is not the State may still be amenable to Article 226 in respect of a public duty, although Article 32 is not available.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.