Enforcing Fundamental Rights Against the State and its Instrumentalities

Fundamental rights are only as powerful as the entities they can be enforced against. It is one thing to declare that every person has the right to equality, freedom of speech, or protection against arbitrary detention – but the critical question is: who exactly is bound by these rights? Can you enforce your fundamental right against a private employer who fires you unfairly? Against a cricket board that bans you from the sport? Against a court that issues an order you believe is wrong? The answer lies in Article 12 of the Constitution of India, which defines the term “State” – and in doing so, determines the entire scope of Part III. Understanding Article 12 is, therefore, not a side topic; it is the gateway through which every fundamental right must pass.

What Article 12 actually says 🔗

The text of Article 12 is deceptively simple. It states that unless the context otherwise requires, “the State” includes the Government and Parliament of India, the Government and Legislature of each state, and all local or other authorities within the territory of India or under the control of the Government of India. That’s it – no lengthy definitions, no exhaustive list. Yet this short provision has generated some of the most consequential constitutional litigation in Indian history, because everything hinges on what counts as the “State.” Fundamental rights cannot be enforced against private individuals or entities – only against the State as defined here. So if a body falls outside Article 12, citizens have no constitutional remedy in writ jurisdiction against it for violating their rights.

The four components of “State” under Article 12 🔗

The Article 12 definition can be broken down into four clear components, each carrying its own significance.

The Government and Parliament of India 🔗

This covers the Union executive – the President, the Prime Minister, the Council of Ministers – and the legislative arm, meaning both the Lok Sabha and Rajya Sabha. Any law passed by Parliament that is inconsistent with a fundamental right is void under Article 13. Similarly, executive action by the central government can be challenged directly. So if Parliament passes a law that curtails your freedom of speech beyond constitutionally permissible limits, or if a ministry issues an order that discriminates on the basis of religion, these actions are directly challengeable before the Supreme Court under Article 32 of the Constitution.

The Government and Legislature of each state 🔗

The same logic applies at the state level. Each state’s executive (the Chief Minister, Council of Ministers, and the Governor) as well as the state legislature (the Legislative Assembly, and the Legislative Council where it exists) fall squarely within the definition of State. A state government that acquires your property without following due process, or a state legislature that enacts a law violating the right to equality, can be held accountable under Part III.

Local authorities 🔗

Local authorities refer to bodies like municipal corporations, panchayats, improvement trusts, port trusts, and similar local self-government institutions. These bodies are specifically included because they exercise public power at the grassroots level and directly affect the lives of ordinary citizens. A municipality that discriminates in the provision of civic services, or a panchayat that denies a resident access to a public facility, can be challenged on fundamental rights grounds.

Other authorities 🔗

This is the most contested and judicially developed component of Article 12. The phrase “other authorities” is not defined anywhere in the Constitution or in any statute, which is precisely why courts have had to step in repeatedly to determine its boundaries. The broader this phrase is interpreted, the more bodies come under constitutional accountability – and Indian courts have, over the decades, progressively widened its scope.

The judicial journey: from ejusdem generis to instrumentality 🔗

The story of how courts have interpreted “other authorities” is a story of expanding constitutional accountability.

University of Madras v. Shanta Bai (1954): the narrow start 🔗

The Madras High Court initially applied the principle of ejusdem generis – meaning a general expression at the end of a list takes its meaning from the specific items that precede it. Since Article 12 listed governments and legislatures (all governmental bodies), the court held that “other authorities” could only mean bodies that perform governmental or sovereign functions. On this basis, the University of Madras – which was primarily an educational institution, not a body exercising state power – was held not to be the State. Unaided universities and private educational bodies were therefore excluded from the scope of Article 12 under this early view.

Rajasthan State Electricity Board v. Mohan Lal (1967): the watershed moment 🔗

The real turning point came with this landmark Supreme Court decision. Mohan Lal was a foreman who had been provisionally transferred to the Rajasthan State Electricity Board. When other employees were promoted to Assistant Engineers but he was not given equal consideration, he argued that the Board had violated Articles 14 and 16. The Board countered by claiming it was not the “State” under Article 12 – it was a commercial statutory corporation, not a government body exercising sovereign functions.

The Supreme Court rejected this argument decisively. The Court held that “other authorities” includes all authorities created by the Constitution or statute on whom powers are conferred by law – regardless of whether those powers are commercial or governmental in nature. The commercial character of the Board’s functions was held irrelevant; what mattered was that it was a statutory body exercising power over individuals. This judgment broke the ejusdem generis straitjacket and opened the door to a much wider understanding of the State.

Sukhdev Singh v. Bhagatram (1975): extending to public corporations 🔗

Building on the Mohan Lal precedent, the Supreme Court held that statutory corporations like the Life Insurance Corporation of India (LIC), the Oil and Natural Gas Commission (ONGC), and the Industrial Finance Corporation all fell within the meaning of “State” under Article 12. These corporations had the power to make, administer, and enforce rules and regulations, which placed them firmly within the State’s accountability framework.

Ajay Hasia v. Khalid Mujib (1981): the comprehensive test 🔗

The Supreme Court took the most comprehensive step in Ajay Hasia, where a society registered under the Societies Registration Act managing a Regional Engineering College was held to be the State. More importantly, the Court laid down a set of criteria – now known as the Ajay Hasia tests – to determine whether any body qualifies as an instrumentality or agency of the State. These tests include whether the entire share capital is held by the government, whether the government provides the bulk of the body’s funding, whether the body enjoys a monopoly status conferred by the State, whether the government has deep administrative control over the body, and whether the functions performed are of public importance closely related to governmental functions. Crucially, the Court also clarified that even a non-statutory body could qualify as the State if these criteria are met. The tests have since become the standard reference point in every Article 12 dispute.

Key exclusions: what does not count as the State 🔗

Not every body that deals with the public qualifies. In Zee Telefilms v. Union of India (2005), the Supreme Court applied the Ajay Hasia tests to the Board of Control for Cricket in India (BCCI) and held it was not the State – despite BCCI’s monopoly over cricket and its enormous influence over the sport. The BCCI was privately constituted and the government did not exercise functional control over it. NCERT was similarly held not to be the State, as it did not satisfy the criteria of substantial government funding or control for purposes of Article 12. These exclusions matter: they show that the definition of State has limits, and bodies that merely operate in the public interest without government control do not automatically come within Article 12.

Where does the judiciary stand? 🔗

One of the more philosophically complicated questions under Article 12 is whether the judiciary itself is the State. After all, if courts can violate fundamental rights, who guards the guardians? In Rupa Ashok Hurra v. Ashok Hurra (2002), the Supreme Court reaffirmed the settled position that superior courts of justice do not fall within the ambit of “State” or “other authorities” under Article 12, and that no judicial proceeding can be said to violate fundamental rights in the constitutional sense. The logic is that the judiciary is the guardian of fundamental rights – holding it simultaneously accountable as the violator would create an institutional paradox. However, this exclusion is not absolute: when the judiciary performs administrative or non-judicial functions – such as making service rules for court employees or conducting appointments – it may be considered the State for those limited purposes.

Parliament as a potential violator 🔗

It would be a mistake to think of the State only as the executive machinery. Parliament itself is explicitly included in Article 12, which means that Parliament is bound by fundamental rights just as much as the government. If Parliament passes a law that is incompatible with fundamental rights – for instance, a law that discriminates between citizens on religious grounds, or that imposes unreasonable restrictions on free speech – that law can be struck down under Article 13, which declares any law inconsistent with Part III to be void to the extent of the inconsistency. The same applies to Presidential and Governor’s ordinances, which carry the force of law and are equally subject to constitutional scrutiny. This is fundamental constitutionalism at work: no organ of the State, including the sovereign legislature, is above the fundamental rights of citizens.

The emerging question: can private parties ever be bound? 🔗

Traditionally, the enforcement of fundamental rights has been “vertical” – meaning citizens can enforce them against the State, but not against other private individuals or corporations. This is known as the doctrine of vertical application. However, a significant shift occurred in Kaushal Kishor v. State of Uttar Pradesh (2023), where a constitutional bench of the Supreme Court held that fundamental rights guaranteed under Articles 19 and 21 can be enforced against non-state actors as well. This decision has sparked considerable academic debate and judicial scrutiny, with critics arguing that it conflicts with the constitutional mandate of Article 12 and decades of settled precedent on vertical application. Scholars have noted that this represents a potentially transformative – and constitutionally contested – shift in Indian rights jurisprudence. For now, the law remains in a state of evolution on this point.

Why Article 12 matters beyond the classroom 🔗

The practical importance of Article 12 is immense. Every time you approach the Supreme Court under Article 32 or a High Court under Article 226 to enforce a fundamental right, the first question a court will ask is: is the respondent the “State” within the meaning of Article 12? If the answer is no, the writ petition for enforcement of fundamental rights will not lie. This is why the definition of State is not abstract doctrine – it directly determines whether a citizen gets a constitutional remedy or must look elsewhere. As government functions are increasingly delegated to statutory bodies, corporations, and even private entities, the courts’ role in drawing the boundaries of Article 12 becomes ever more critical to keeping public power accountable.

What do you think? The Ajay Hasia tests have been the standard for over four decades – but as the State increasingly contracts out its functions to private bodies, do you think these tests are still adequate to protect citizens’ fundamental rights? And with the Supreme Court’s 2023 ruling in Kaushal Kishor opening the door to horizontal enforcement against private parties, where should the line be drawn between constitutional accountability and private autonomy?

References

1. https://www.mea.gov.in/images/pdf1/part3.pdf
2. https://blog.ipleaders.in/state-article-12-constitution-india/
3. https://www.drishtijudiciary.com/to-the-point/ttp-constitution-of-india/state-under-article-12
4. https://www.defactolaw.in/post/meaning-of-other-authorities-under-article-12-of-constitution
5. https://indiankanoon.org/doc/459864/
6. https://www.padhaikaro.com/ca-details/notes/state-under-article-12-judicial-pronouncements
7. https://testbook.com/constitutional-articles/article-12-of-indian-constitution
8. https://testbook.com/ias-preparation/article-12
9. https://www.cambridge.org/core/journals/international-journal-of-legal-information/article/abs/ghost-of-article-12-in-the-indian-constitution-the-verticality-v-horizontality-conundrum/202F109021372CA41916F7BD642AFCB3