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The freedom movement of India was a chain of events which traversed from 1857 to 1947 meant to end British rule in India. However, it wasn’t until the Indian constitution came into force on 26th January 1950 that the Indian government substituted the Government of India act, 1935 that our nation truly became a republic under the Indian governing text.


In common parlance, three things are mentioned as the state. First is the nation-state in which countries which are sovereign and are accepted as an independent country, second is the Indian states that are 28 states and third, state as mentioned in article 12 of the Indian constitution. It comprises the Government and the Parliament, all the State Governments as well as the Legislature of each state in India, all local authorities and other authorities within the territory of India, or under the control of the Government of India. The description of the term “state” is inclusive and not exhaustive.


The government has both the legislative and executive branches. The parliament consists of the President of India, the upper house, or Rajya Sabha in addition to the lower house or Lok Sabha. The role of government begins by law-making and is followed by law enforcement and adjudication functions. Legislature is the body that has the power to influence the will of the state and confer it with legal authority and force. In a democratic state, the legislature enjoys a very unique and significant role. It serves the national public and common interests and is the body of elected representatives.

In a wide-ranging and common context, executive includes in entirety the functionaries and entities or agencies which are concerned with the implementation of the will of the state as conceived and articulated in terms of law or by statute.

The emergence of the idea of welfare state has significantly enhanced the position of the state, and of the executive. In present time, there has been a huge increase in the authority and role of the executive in every state. The executive comprises the President, cabinet ministers, governor, bureaucrats, police, etc.


The term “other authorities” is not defined in the constitution. Previously, the term “other authorities” was granted a limiting interpretation, and the principle of ejusdem generis or things of like nature was used, implying that authorities exercising governmental or sovereign function would only be covered under other authorities.[1]

The apex court dismissed the interpretation on the grounds of ejusdem generis by stating that the meaning of the word could not be limited.[2] The more liberal interpretation came out in Rajasthan State Electricity Board v. Mohan Lal,[3] where it was held that for an authority to be engaged in the sovereign or governmental function it is not obligatory to come under this description and stated that the State electricity board of Rajasthan comes under the description. Later on, the same test was followed in the case Sukhdev Singh v. Bhagatram,[4] where ONGC, LIC, and IFC all come under the purview of other authorities.

However, the major development came in R.D. Shetty v. Airport Authority of India,[5] where a 5 pointer test was derived by Justice P.N Bhagwati. The test was to figure out if an entity is an agency or instrumentality of the state. The dilemma about the status of a non-statutory body was finally resolved in Ajay Hasia[6] where the concept of instrumentality or agency of the state is not limited to an organization formed by legislation or statute but likewise valid to a company or society. The importance of the term authority was further expanded by giving a certain test in this case.


Under article 12 the term authority implies the power to create legislation that has the force of law (or directives, rules, by-laws, notification, regulations.)Including the authority to execute these laws. As per Entry 5 of the List II of VII schedule, ‘local government’ consist of district boards, municipal corporations, mining settlements, improvement trust and other local authorities with the objective of local self -governance or village administration.

Further, in the case Mohammad Yasin v. Town area committee,[7] the Supreme Court laid down certain tests to determine if an agency or entity comes under the ambit of the local authority or not. Also, in the case of Ajit Singh v. State of Punjab,[8] village panchayat was considered inclusive concerning the term local authority.

It is therefore critical that the state concept is very detailed concerning the protection of fundamental rights. Thus, article 12 gives an expanded definition of ‘the state’ wherever it occurs in Part III of the constitution. Under this description, not only the legislative and executive organs of the union and the states but also local bodies for example district boards, municipality, gram Sabha, village panchayat, etc. and other authorities which include instrumentalities or agencies of the state.


The quasi-judicial (rule-making) side and the administrative side and of the judiciary are “state” within the scope of article 12 of the constitution of India. However, the judicial side which is to apply the law to specific cases and settle all disputes between the parties is not a state within the context of article 12. The same has been discussed below:

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra,[9] the Supreme Court’s 9-Judge Bench held that a judgment made by or in respect of a case brought before a judge following the adjudication cannot impact citizens’ fundamental rights, because what the judge’s judgment is intended to do is to settle the conflict and not to do something further between the parties brought before the Court. This represents the case of the judiciary acting in its judicial capacity.

Although, in the same case, it was further observed that if a party wishes to contest any of the rule framed by the court under Article 145 on the ground that they are invalid because they unlawfully breach his fundamental rights, it would be as per the discretion of the party to move to the Supreme Court under article 32. It was acknowledged that such an appeal did not refute the Supreme Court’s ruling but only a rule made by it in the fulfillment of its rule-making power. This is the situation when the judiciary is acting as per the quasi-judicial or rule-making capacity.

On the same lines, the orders passed by the courts in their administrative capacity (including the Supreme Court) have consistently been tested as being violative of fundamental rights. And when it carries out functions like conducting examinations or appointment of the judges, it will fall within the scope of a state as mentioned in article 12 and remedy could be pursued in case of violation of fundamental rights. This pertains to administrative functions of the judiciary.

A remarkable change happened in the case of Common Cause v. Union of India[10] where the Supreme Court stated that Part IV of the constitution is as much a “guiding light” for the judicial organ of the state as the executive and legislative all three being integral parts of one state within article 12 of the constitution. Albeit this statement can only be treated as obiter this is a unique approach in looking at the judiciary as State under article 12.

It is to be noted that constitutional scholars have proposed that judicial functions shouldn’t be brought under the ambit of the state. As such a situation has the potential to create a turmoil, if citizens start questioning the judgments, it would lead to dogmatic or satisfactory judgments.


 The courts of India with time have expanded the definition of state to encompass various statutory and non-statutory bodies under its scope. The prerequisite to determine whether a party comes under its ambit is acknowledged according to the duty it has to perform while not infringing on the fundamental rights of individuals. The courts in the judgments have widened the scope of article 12 by giving tests and reinforcing the rights of people because fundamental rights are so basic to individuals that the state has the obligation to protect it. Having that idea in mind, the judiciary with time has given judgements that if certain ruling of the court is violating the rights or there is miscarriage of justice the concerned person has the recourse available in the form of remedy etc. The judiciary wasn’t under the description earlier but with certain development and judgments, it too has come under the scope of State with certain reservations. The Inclusion of extra judicial functions under the definition of state was a welcome move as the judiciary now can’t violate the rights having the immunity in mind that it is not state.

Author(s) Name: Ashima Joshi (National Law University Odisha)


[1] University of Madras v. Shanta Bai, AIR 1954 MAD 67.

[2] Ujjammabai v. State of U.P., AIR 1963 SCR (1) 778.

[3] Rajasthan State Electricity Board v. Mohal lal, AIR 1967 SC 1857.

[4] Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331.

[5] R.D. Shetty v. Airport Authority of India, AIR 1979 SCR (3) 1014.

[6] Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487.

[7] Mohammad Yasin v. Town area committee, 1952 AIR 115.

[8] Ajit Singh v. State of Punjab, 1997(7) SCC 209.

[9] Naresh Shridhar Mirajkar v. State of Maharashtra, 1966 SCR (3) 744.

[10] Common Cause v. Union of India, 2015 (7) SCC.