Reconceptualising “Other Authorities” under Article 12 of the Indian Constitution

Reconceptualising “Other Authorities” under Article 12 of the Indian Constitution

1. Introduction

Article 12 of the Constitution of India defines the term “State” for the purposes of Part III, expressly including “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.”[1] While the meaning of “Government” and “Legislature” is self-evident, the phrase “other authorities” has generated sustained constitutional litigation for over seven decades. Questions of when a seemingly private or autonomous entity assumes public-law obligations have repeatedly reached the higher judiciary, implicating fundamental rights enforcement, administrative law, and the boundaries of governmental accountability.

2. Normative Foundations

The placement of Article 12 at the threshold of the chapter on fundamental rights underscores its instrumental role: only entities covered by the provision can be subjected to writ jurisdiction under Articles 32 and 226 for infringement of Part III rights. The provision therefore acts as a gateway, determining who may be held constitutionally answerable. A narrow reading risks privatising core governmental functions and diluting rights; an unduly expansive reading, on the other hand, may inhibit private enterprise and overburden courts. The Supreme Court’s jurisprudence reflects an attempt to navigate this tension through functional, rather than purely formal, criteria.

3. Jurisprudential Evolution

3.1 Early Skepticism: Rajasthan SEB (1967)

In Rajasthan State Electricity Board v. Mohan Lal[3] the Court rejected the ejusdem generis argument advanced by the State and held that an electricity board established by statute was an “authority” because its directions possessed the force of law. The decision established two important propositions: (i) “other authorities” is of wide amplitude; and (ii) possession of statutory power to issue binding rules or directions is a critical indicator of State character.

3.2 Functional Expansion: Sukhdev Singh & R.D. Shetty

A decade later, a Constitution Bench in Sukhdev Singh v. Bhagatram[4] brought the Oil and Natural Gas Commission, Life Insurance Corporation, and Industrial Finance Corporation within Article 12 on the basis of pervasive governmental control. Justice Mathew’s concurring opinion formulated the “agency or instrumentality” doctrine that matured in Ramana Dayaram Shetty v. International Airport Authority[5]. There, the Court identified non-exhaustive factors—funding, control, monopoly status, and public importance—to determine when a corporate entity acts as State.

3.3 Consolidation: Ajay Hasia (1981)

Ajay Hasia v. Khalid Mujib Sehravardi[6] marked a doctrinal consolidation. Speaking for a unanimous five-judge Bench, Bhagwati J. emphasised that the test is not how an entity is created but what functions it performs and how it is controlled. Six indicators were laid down—ranging from ownership of capital to functional public importance—none conclusive in isolation. The decision also clarified that once an entity is State under Article 12, all its actions are subject to Article 14’s non-arbitrariness mandate, invalidating the viva-voce heavy admission policy at issue.

3.4 Statutory Corporations and Government Companies: Som Prakash (1981)

In Som Prakash Rekhi v. Union of India[7] the Court held that a government company created under the Companies Act but transformed by subsequent nationalisation legislation was an “authority”. The judgment underscored that statutory flavour and governmental dominance may suffice even where the corporate form remains ostensibly private.

3.5 Re-examination and the Seven-Judge Benchmark: Pradeep Kumar Biswas (2002)

A fragmented Bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology[8] revisited earlier precedent and, by a 5-2 majority, overruled Sabhajit Tewary. CSIR—a society registered under the Societies Registration Act—was declared State because of 70% government funding, domination of its governing body by official nominees, and integral public functions. The majority reaffirmed the Ajay Hasia tests but warned against mechanical application; what matters is whether the entity is “financially, functionally and administratively dominated” by government in a pervasive manner.

3.6 Private Power and Public Functions: Zee Telefilms (2005)

The issue in Zee Telefilms Ltd. v. Union of India[9] was whether the Board of Control for Cricket in India (BCCI), an autonomous body, qualifies as State. The majority concluded that BCCI did not satisfy the instrumentality tests, although it recognised the possibility of writs under Article 226 on the ground of “public duty.” A robust dissent (Hegde J.) treated BCCI’s monopoly and regulatory control as grounds to include it within Article 12. The decision thus evidences judicial reticence to extend Article 12 to de facto monopolies absent pervasive governmental control.

3.7 Subsequent Clarifications

Later cases—State of U.P. v. Radhey Shyam Rai[10], Dr. Anjana Vyas v. National Law University[11], among others—have reiterated that evolving social conditions necessitate a liberal, functional reading, especially where bodies discharge public duties. High Courts have frequently issued writs under Article 226 even when Article 12 coverage is doubtful, invoking the broader phrase “any person or authority” in that provision.

4. Doctrinal Parameters for Identifying “Other Authorities”

4.1 Statutory Origin or Power to Make Rules with Force of Law

The earliest criterion—traced to Rajasthan SEB and academic commentary—is whether the body wields statutory power whose violation invites penal or civil consequences. Such power aligns the entity with the coercive capacity of the State.

4.2 Ownership, Funding, and Financial Control

Substantial governmental financing—especially where a large majority of funds are public—indicates that the entity functions as an extension of the fisc. This factor was pivotal in Pradeep Kumar Biswas.

4.3 Administrative and Functional Control

Pervasive control over policy decisions, appointment of key personnel, and ability to issue binding directions signifies integration with government structures.

4.4 Monopoly Status and Public Importance of Functions

When an entity enjoys State-conferred or State-protected monopoly in a field of public significance—such as civil aviation services (R.D. Shetty) or insurance (Biman Krishna Bose)—courts lean towards inclusion within Article 12, though Zee Telefilms tempers this approach by insisting on additional indicia of control.

4.5 Transfer of Government Business

If a department of government is transferred to a corporation, that fact is “a strong factor” in favour of Article 12 coverage, as emphasised in Ajay Hasia and reiterated by recent High Court decisions.[11]

4.6 Non-Exclusivity and Cumulative Assessment

None of the above tests is decisive in isolation; the evaluation is cumulative, contextual, and fact-specific.[8]

5. Critical Engagement with Primary Reference Materials

5.1 Ajay Hasia: Functionalism Triumphs Over Formalism

The decision’s lasting influence lies in its categorical statement that registration under the Societies Registration Act cannot immunise an entity from constitutional scrutiny. By subjecting the society governing a Regional Engineering College to Article 14, the Court fortified educational autonomy with constitutional accountability. The case also demonstrates the Court’s readiness to craft equitable remedies—invalidating a process prospectively while cushioning past cohorts—signalling sensitivity to practical considerations.

5.2 Ramana Dayaram Shetty: Equality in Contractual Dealings

While primarily an Article 14 case, R.D. Shetty sharpened the instrumentality doctrine. The International Airport Authority’s deviation from tender norms was struck down as arbitrary, illustrating that once Article 12 status is established, every administrative act is measured against constitutional standards. The case also laid the foundation for procedural fairness in public contracting, later invoked in transparency jurisprudence.

5.3 Pradeep Kumar Biswas: Overruling Precedent and Doctrinal Clarity

By overturning Sabhajit Tewary, the seven-judge Bench reaffirmed judicial willingness to revisit precedent where constitutional fidelity demands it. The majority’s synthesis of prior tests into the triad of financial, functional, and administrative control offers clearer guidance, yet the vigorous dissent illustrates continuing ambivalence about the doctrine’s reach.

5.4 Zee Telefilms: The Limits of the Doctrine

The majority’s refusal to deem BCCI “State” underscores a jurisprudential limit, reserving Article 12 primarily for bodies in which government retains a decisive voice. However, the Court’s observation that writs under Article 226 remain available against private bodies performing public duties preserves judicial oversight through alternate constitutional pathways.

6. Emerging Issues and Unresolved Questions

  • Sports and Cultural Federations: Post-Zee Telefilms, the legal status of bodies like the Indian Olympic Association remains contested, particularly after governmental recognition guidelines have increased oversight.
  • PPP and Hybrid Models: As public-private partnerships proliferate, delineating the threshold of “pervasive control” becomes more complex. Judicial reliance on funding percentages may be inadequate where control is contractual rather than equity-based.
  • Digital Platforms Performing Sovereign-Like Functions: Entities managing digital ID systems or large-scale payment infrastructures may wield public-law power without being statutorily incorporated, necessitating doctrinal adaptation.
  • Horizontal Application of Fundamental Rights: Some scholars argue for extending certain rights, especially equality and non-discrimination, horizontally to powerful private actors, reducing dependence on Article 12 classification.

7. Conclusion

The concept of “other authorities” under Article 12 has travelled from a strict statutory-power test to a nuanced, functional analysis sensitive to the realities of modern governance. Landmark rulings—Rajasthan SEB, Ajay Hasia, and Pradeep Kumar Biswas—have progressively widened constitutional accountability, while decisions like Zee Telefilms caution against over-expansion. The prevailing doctrinal framework balances democratic oversight with economic autonomy through a multi-factor inquiry into funding, control, function, and public impact. As the State increasingly relies on diverse organisational forms to discharge public functions, the judiciary’s interpretive vigilance remains vital to safeguarding fundamental rights without stifling institutional innovation.

Footnotes

  1. Constitution of India, art. 12.
  2. Constitution of India, art. 14.
  3. Rajasthan State Electricity Board v. Mohan Lal, AIR 1967 SC 1857.
  4. Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421.
  5. Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489.
  6. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
  7. Som Prakash Rekhi v. Union of India, (1981) 1 SCC 449.
  8. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
  9. Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.
  10. State of U.P. v. Radhey Shyam Rai, (2009) 6 SCC 65.
  11. Dr. Anjana Vyas v. National Law University, 2017 SCC OnLine Raj 1854.
  12. Calcutta State Transport Corporation v. CIT, (1976) CTR (Cal) 210.
  13. Biman Krishna Bose v. United India Insurance Co., (2001) 6 SCC 477.