Need for reform in Article 12 of the Constitution: Obligation of Private Entities to Protect Fundamental Rights

Article for Blog Post Writing Competition 2011 | by Aakriti Mathur

May 30th, 20116:46 pm

The obligation of private entities, to protect fundamental rights is a theme of constitutional interest. In the Indian Constitutional scheme most of the fundamental rights are available against the state and Article 12 of the Constitution defines state to include:

a)the Government and Parliament of India;

b)the Government and the Legislature of each of the States;

c)all local authorities; and

d)other authorities within the territory of India or under the control of the Government of India.

The most noteworthy expression under Article 12 is “other authorities” as this expression is not defined in the Constitution. Thus it is for the courts to interpret this term, and it is clear that the wider this term is interpreted, the wider the ambit of fundamental rights would become.

The judicial trend with regard to the interpretation of term “other authorities”, can be understood by looking at the following case laws-

In University of Madras v Shanta Bai (AIR 1954 Mad 67), the Madras High Court evolved the principle of “ejusdem generis” which meant only authorities that perform governmental or sovereign functions can be included under article 12.

In Electricity Board, Rajasthan v. Mohan Lal (AIR 1967 SC 1857), the Supreme Court held that ‘other authorities’ would include all authorities created by the Constitution or statute on which powers are conferred by law. It was not necessary that the statutory authority should be engaged in performing government or sovereign functions.

In Sukdev Singh v. Bhagat Ram Sardar Singh Raghuvanshi, (1975 (1) SCC 421), the court had to deal with the question, whether statutory corporations such as the ONGC, IFC and LIC, came within the definition of “the State” under article 12. The court held that the three corporations were “the State” as the three corporations were created by statutes, had the statutory power to make binding rules and regulations, and were subject to pervasive government control.

In Ajay Hasia v. Khalit Mujib Sehravarai, (AIR 1981 SC 487), where 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” for the purposes of Article 12.

The 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 corporation is held by the government,

2.Where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation.

3.Whether the corporation enjoys monopoly status, which is state conferred or state protected.

4.Existence of deep and pervasive state control.

5.If the functions of the corporation are of public importance.

6.If a department of government is transferred to corporation.

If on a consideration of these factors it is found that the corporation is an instrumentality or agency of government, it would be an authority and therefore, state within the meaning of article 12. However, these tests are not conclusive or clinching, and it must be realised that they would not be stretched so far as to bring in every autonomous body, which has some nexus with the government within the sweep of the expression “the State”.

Private Entities as State

In M.C. Metha v. Sri Ram Fertilizers Ltd., (1987 SCR 819), the court expanded the ambit of article 12: “primarily due to the social consequence of our corporate structure”. The court stressed that the ambit of article 12 needs to be enlarged so as to bring private companies also under the discipline of fundamental rights.

Further in the case of J.P. Unni Krishnan v. State of A.P., (1993 (1) SCC 645), the court held that private educational institutions cannot be allowed to violate article 14 as they are performing a function in furtherance of a state function, that is, the provision for education.

In Zee Telefilms Ltd. v. Union of India, (2005 (4) SCC 649), the court excluded Board of Control for Cricket in India (BCCI), from the ambit of article 12. However it conceded that relief against BCCI could be available in high courts under article 226.

The National Commission to Review The Working Of The Constitution 2002, had recommended that in article 12 of the Constitution, the following explanation should be added; ‘Explanation: – In this Article, the expression “other authorities” shall include any person in relation to such as it functions which are of a public nature.’ The rationale was that, after globalisation and privatisation, traditional functions of a welfare state had transferred to individuals and private agencies. Thereby, fundamental rights and duties that bound the state also passed to them.

The Law Ministry however opposed the suggestion that private entities performing public function be brought within the ambit of Article 12 to safeguard public interest. The Ministry believed that making fundamental rights enforceable against private bodies would be against the concept enshrined in the Constitution that the protection against violation of the rights by individuals must be sought in the ordinary law.


The need of the times is that fundamental rights be made available against private entities also, otherwise persons aggrieved by actions of large private corporations, will have no place to turn to, thereby defeating the very purpose of fundamental rights as envisaged by the framers of the constitution. The definition of the term state has been continually elaborated by the judiciary and now it is time for the legislature to follow suit, and expand the definition of state according to the recommendation given by the National commission to review the working of the Constitution.


1) Statutes

a)      Constitution of India, 1950.

b)      Constituent Assembly Debates Vol. III and VII.

2) Books

a)      Durga Das Basu, Commentary on The Constitutional of India (Lexis Nexis Butterworths, Wadhwa Nagpur, (2008 (8th edn.) )

b)      M.P. Jain, Indian Constitution (Wadhwa and Co., Nagpur, 2009 (5th edn.)).

c)      H.M., Seervai, Constitutional of India (Universal Law Publishing Co.,2005 (4th edn.).

3) Articles:-

a)      M.Ramesh, Need For Expanding The Definition Of The State Under Article12 Of The Constitution Of India In The Era Of LPG, available at

b)      Bhumika Sharma, Article 12: Scope As Expanded By Judiciary , available at

Article by-

Aakriti Mathur

Student BA.LLB(Hons), Amity Law School, Noida

[Submitted as an entry for the Blog Post Writing Competition, 2011]


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