Test to determine State under Article 12

  1. Introduction
  2. Article 12 & State
  3. Changing role of State
  4. Justice Bhagwati prefer broader test
  5. Test not conclusive but only illustrativeStar Enterprises v. CTDC of Maharashtra Ltd, Ajay Hasia vs. Khalid Mujib, Manmohan Singh Jaitla v. Commissioner, UT of Chandigarh etc.
  6. Conclusion-


Article 12 of the Indian Constitution is inalienable to Fundamental Rights in Part III. Fundamental Rights are important to human life, similarly article 12 is important to fundamental rights.

These rights were granted to people by the State because without them no true meaning of life can be possible. And accentually they are not given by state they are inherited in human being by the very nature that they are human being, as held in the case of M. Nagraj vs. UOI[1].

However these rights are available against State only as per article 12. If they are violated by individual or a non- state body then there are provisions in IPC and other laws for this.

Article 12 & State-

State include the following as per article 12-

  1. Government & Parliament of India i.e. Executive and Legislature of Union
  2. Government & Legislature of the State i.e. Executive and Legislature of State
  3. All Local and other authorities within Indian territory
  4. All local and other authority under control of government of India

However article 12 only uses the terms like authorities and control of government. It does not specify them deeply.

Changing role of State-

The State nowadays is not merely a police state. Now it’s the concept of welfare state. The role of State is changing with time. It is now necessary to widen the scope of authorities within the scope of State.

It is now equally important to include those bodies also which does not created by the government but are acting as an agency of government.

Justice Bhagwati prefer broader test-

While deciding the case of Ramana Dayaram Shetty vs. The International Airport Authority of India[2]Justice Bhagwati held that- If a body is an agency or instrumentality of government it may be authority within the meaning of Article 12.

In this case he gave a test to determine whether a body is an agency or instrumentality of the State. This test is also suggested previously by Justice Mathew.

The following conditions must be fulfilled for a body to be a government agency-

  1. Financial resource of State is the chief Funding source
  2. Existence of deep and pervasive State control
  3. Functional character being governmental in essence
  4. A department of government must be transferred to a cooperation
  5. Whether the cooperation enjoys monopoly status conferred or state protected

Test not conclusive but only illustrative-

It was held in various judgments that this test is not conclusive and must be used with due care and caution.

Case laws illustrating this caution-

Star Enterprises v. CTDC of Maharashtra Ltd.[3]

It was held that a government company under Section 617 of the Companies Act is a State under article 12.

Ajay Hasia vs. Khalid Mujib[4]

Held that society registered under Societies Registration Act is a State.

 Manmohan Singh Jaitla v. Commissioner, UT of Chandigarh[5]

It was held that aided school which receive 90 percent government fund is a authority under article 12

Tekraj Vasandi v UOI[6]

In this case it was held that Institute of constitutional and parliamentary studies is not a state under article 12 as there is not deep and persuasive control.

Sri Kona Seema Co-operative Bank Ltd. V. N. Seetharama Raju[7]

Held that co-operative bank registered under A.P. Co-operative societies Act is not a State. It is because functions of bank were not of public importance and not closely related to government functions.

Chandra Mohan Khanna v NCERT[8]

NCERT held to be not a state because object of NCERT is to assist and advise Ministry of Education and society welfare.


Our constitution was drafted at the tie when India got independence. It’s the need of time to increase the scope of certain provisions as the changing needs. That’s why Justice Bhagwati rightly interpreted the new rule to determine state under Article 12.

However this rule is not that simple, it needs to be interpreted and used with caution as held by different case laws. Each case must be decided with its cumulative facts to determine if a body is financially, functionally and administratively dominated by or under the control of government.

[1] AIR 2007 SC 71

[2] AIR 1979 SC 1628

[3] (1990) 3 SCC 280

[4] AIR 1981 SC 487

[5] (1984) Supp. SCC 540

[6] (1988) 1 SCC 236

[7] AIR 1990 AP 171

[8] AIR 1992 SC 76

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