THE CLEAR SKY: INTERPRETING ARTICLE 12 THROUGH

PRADEEP KUMAR BISWAS & ORS V. INDIAN INSTITUTE OF

CHEMICAL BIOLOGY & ORS

DHRUV SHARMA*

I.
INTRODUCTION

“A man is born with a title to perfect freedom and an uncontrolled enjoyment of all the
rights and privileges of the law of nature and he has by nature a power to preserve his
property – that is his life, liberty and estate, against the injuries and attempts of other
men”
- John Locke
The political implication of the theory of natural rights lays down that these
rights, being inherent in man, existed prior to the birth of the State itself, and cannot,
1
therefore be violated by the State. The Constitution framers of the country with this
notion in mind, inculcated the concept of fundamental rights within our constitution. Far
away from merely paper hopes or fleeting promises, the fundamental rights are the
constitutional guarantees and so long as they find a place in it, they cannot be
emasculated in their application by a narrow and constricted judicial interpretation.2
Part III of the Constitution, which deals with Fundamental Rights, begins with the
definition of `state', as adumbrated in Article 12. Most of the Fundamental Rights are
claimed against the state and its instrumentalities and not against any private bodies.3
Owing to the spaciously worded definition of ‘the state’, the courts of law did not find it

*
Student, B.A.LL.B (Hons.), NALSAR University of Law, Hyderabad.
1
Aquinas, Summa Theologica (tr. by Dawson, Q.94, Art.2); D.D. Basu, Commentary on the Constitution of
India, 8th ed. 2007, Vol. 1, p. 579.
2
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
3
Shamdasani v. Central Bank of India, AIR 1952 SC 59; Vidya Verma v. Shiv Narain, AIR 1956 SC
108.

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necessary to abridge its contours or amputate its limbs in any manner. However, in the
changed context of globalization and survival of the fittest, there was perceptible change
in the thinking and philosophy towards its interpretation. The public sector entities, be
they statutory bodies, government companies, government departmental undertakings or
societies, were now perceived as the “holy cows”.
With a plethora of judicial precedents, the courts illumed the wider horizon of
article 12, and subjected the public enterprises to judicial scrutiny. The array of decisions
culminated as a settled law in the Pradeep Kumar Biswas Case, where the court taking
into account all the previous precedents, interpreted the term “other authorities” for the
purposes of part III of the constitution, thereby, removing all doubts with regards the
same.

II.
BACKGROUND OF THE CASE

HISTORY BEHIND THE DISPUTE

In 1972 Sabhajit Tewary, a Junior Stenographer with the Council of Scientific and
Industrial Research (CSIR) filed a writ petition4 claiming parity of remuneration with the
stenographers who were newly recruited to the CSIR. His claim was based on Article 14
of the Constitution. A Bench of five judges of this Court denied him the benefit of that
Article because they held hat the writ application was not maintainable against CSIR as it
was not an “authority” within the meaning of Article 12 of the Constitution.5

REASONING PROVIDED IN THE JUDGMENT

The Hon’ble bench rejected the application on the grounds that the society does
not have a statutory character and was merely registered under the Societies Registration
Act. The, fact that the Prime Minister is the President or that the Government appoints

4
Under Article 32 of the Constitution of India.
5
Sabhajit Tewary v. Union of India and Others, 1975 AIR SC 1329.

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nominees to the Governing Body or that the, Government may terminate the membership
will not establish anything more than the fact that the Government takes special care that
the promotion, guidance and co-operation of scientific and industrial research and other
allied functions conducted under the auspices of the Council towards the development of
industries in the country are carried out in a responsible manner.6

Although the Court noted that it was the Government which was taking the
“special care” nevertheless the writ petition was dismissed ostensibly because the Court
factored into its decision two premises:
i) The society does not have a statutory character like the Oil and Natural Gas
Commission or the Life Insurance Corporation or Industrial Finance Corporation. It is a
Society incorporated in accordance with the provisions of the Society's Registration Act.
ii) Extending the reasoning that it has propounded in the different cases7 relating to non
availability of protection to employees of companies registered under the Companies act
as contemplated in article 311. The companies were held in these cases to have
independent existence of the Government and by the law relating to corporations. These
could not be held to be departments of the Government

NEED FOR RECONSIDERATION

The judgment pronounced in the Sabhajit Tewary’s case was affirmed and
followed for nearly three decades in the cases of similar nature. In 2002, the validity of
the case was reconsidered in the Pradeep Kumar case where a writ application filed by
the appellant in Calcutta High Court challenging the termination of their services by the
respondent which is a unit of CSIR. The Court held that on the prima view, that, the writ
application was itself not maintainable against the respondent in view of the decision in
Sabhajit Tewary’s case.8

6
Ibid.
7
Praga Tools Corporation v. Shri C.A. Imanual & Ors. A.I.R. 1969 S.C. 1306; Heavy Engineering
Mazdoor Union v. The State of Bihar & Ors. [1969] 3 SCR 995; S.L. Agarwal v. General Manager
Hindustan Steel Ltd., 1970 (3) SCR 363.
8
Pradeep Kumar Biswas and others v. Indian Institute of Chemical Biology and others, 2002 (5) SCC
111, ¶ 2.

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 Challenging the order of the Calcutta High Court, the appellants filed a further
appeal before the Supreme Court. On 5th August, 1986 a Bench of two Judges of this
Court referred the matter to a Constitution Bench being of the view that the decision in
Sabhajit Tewary required re-consideration “having regard to the pronouncement of this
Court in several subsequent decisions in respect of several other institutes of similar
nature set up by the Union of India”.9
Thus, the questions that the court had to adjudicate upon were 1) whether CSIR is
a State within the meaning of Article 12 of the Constitution , and , if it is, 2) should the
Court reverse a decision which has stood for over a quarter of a century?10 An analysis
of the present decision on the basis of the issues is presented ahead.

III.
ANALYSIS OF THE JUDGMENT

In the present case, the court had the onus of disproving the precedent which has
stood the test of time for more than a quarter of a century. The court even reiterated that,
“Normally, a precedent like Sabhajit Tewary which was stood for a length of time
should not be reversed, however erroneous the reasoning if it has stood unquestioned,
without its reasoning being “distinguished” out of all recognition by subsequent
decisions and if the principles enunciated in the earlier decision can stand consistently
and be reconciled with subsequent decisions of this Court, some equally authoritative. In
our view Sabhajit Tewary fulfills both conditions.”11
However, despite everything, it became necessary for the court to overrule
Sabhajit Tewary in view of the present era and times. The obsolete nature of the decision
was expressed in many subsequent judgments of the supreme court where the judges
clearly mentioned,

9
Pradeep Kumar Biswas and others v. Indian Institute of Chemical Biology and others, 2002 (5) SCC
111, ¶ 3 [hereinafter as the Pradeep Kumar Case].
10
Ibid, ¶ 4.
11
Ibid, ¶ 21.

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 “Much water has flown down the Jamuna since the dicta in Sabhajit Tewary case
and conceding that it is not specifically overruled in later decision, its ratio is
considerably watered down so as to be a decision confined to its own facts.”12
The majority judgment was broadly divided into two categories, a) The
interpretation of the term “other authorities” in article 1213, and, b) Reasons as to why
CSIR would fall within its ambit.

a) INTERPRETATION OF THE TERM “OTHER AUTHORITIES”

In the early days, when the Government had limited functions, it could, operate
effectively through natural persons constituting its civil service and they were found
adequate to discharge governmental functions, which were of traditional vintage. But as
the tasks of the Governments multiplied with the advent of the welfare State, it began to
be increasingly felt that the frame work of civil service was not sufficient to handle the
new tasks which were often of specialised and highly technical character. The inadequacy
of the civil service to deal with these new problems came to be realised and it became
necessary to forge a new instrumentality or administrative device for handling these new
problems. It was in these circumstances and with a view to supplying this administrative
need that the public corporation came into being as the third arm of the Government.14
The court while interpreting the term, begin off with the proposition that the
definition given under article 12 is inclusive and not conclusive. The net of Article 12 has
been expanded by “progressive” judicial thinking, so as to include within its ken several
instrumentalities and agencies performing State function or entrusted with State action.15
Furthermore, an inclusive definition is generally not exhaustive is a statement of the

12
P.K. Ramachandra Iyer and Ors. v. Union of India and Ors., (1984) 2 SCC 141 [where it was held
that both the Indian Council of Agricultural Research (ICAR) and its affiliate Indian Veterinary Research
Institute were bodies as would be comprehended in the expression 'other authority' in Article 12 of the
Constitution.]; Chander Mohan Khanna v. National Council of Educational Research and Training
and others, 1992 AIR SC 76.
13
It reads as, “the State’’ includes 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.”
14
Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., AIR 1975 SC 1331.
15
N. Masthan Sahib vs. The Chief Commissioner, (1962) Supp 1 SCR 981 ; K.S. Ramamurthy
Reddiar vs. Chief Commissioner, Pondicherry and Anr., 1963 AIR SC 1464.

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obvious and as far as Article 12 is concerned, has been so held by this Court.16 The words
‘State’ and ‘Authority’ used in Article 12 therefore remain, among “the great
generalities of the Constitution” the content of which has been and continues to be
supplied by Courts from time to time.17
Owing to the availability of a multitude of decisions available on the same issue,
the court adopted the approach of taking into consideration which either expressed a
narrow or those which expressed a more liberal view and to consider some decisions of
as illustrative of this apparent divergence. It was done to keep in view that, in the ultimate
analysis the difference may perhaps be attributable to different stages in the history of the
development of the law by judicial decisions on the subject.
The concept of state under article 12 has undergone drastic changes in the recent
years.18 Keeping pace with the broad approach to the concept of equality under Articles
14 and 16, Courts have whenever possible, sought to curb an arbitrary exercise of power
against individuals by “centres of power”, and there was correspondingly an expansion in
the judicial definition of “State”. Initially the definition of State was treated as exhaustive
and confined to the authorities or those which could be read ejusdem generis19 with the
authorities mentioned in the definition of Article 12 itself. The next stage was reached
when the definition of 'State' came to be understood with reference to the remedies
available against it. For instance, historically, a writ of mandamus was available for
enforcement of statutory duties or duties of a public nature20. Thus a statutory
corporation, with regulations framed by such Corporation pursuant to statutory powers
was considered a State, and the public duty was limited to those which were created by
statute. Illustrations of the present proposition can be found in many cases, where the

16
Smt. Ujjan Bais vs. State of Uttar Pradesh, 1961 Indlaw SC 465, 968.
17
See, Benjamin Cardozo: The Nature of the Judicial Process. Pradeep Kumar, supra n.5, ¶ 6.
18
Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., AIR 1975 SC 1331.
19
Latin for “of the same kind”; used to interpret loosely written statutes. Where a law lists specific classes
of persons or things and then refers to them in general, the general statements only apply to the same kind
of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors,
motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of
land-based transportation. See, http://legal-dictionary.thefreedictionary.com/ejusdem+generis, last
accessed: 24 February 2008.
20
Praga Tools Corporation vs. Imanual, A.I.R. 1969 S.C. 1306 [....there was neither a statutory nor a
public duty imposed on it by a statute in respect of which enforcement could be sought by means of a
mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such
statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a
mandamus or an order in the nature of mandamus could lie against the company.]

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court propounded that that the expression “other authorities” will include all
constitutional or statutory authorities on whom powers are conferred by law. It is
completely immaterial that some of the powers conferred may be for the purpose of
carrying on commercial activities.21
The concept was furthered in the Sukhdev Singh case22 where A.N. Ray, CJ also
expressed that the concept would include “a public authority which is a body which has
public or statutory duties to perform and which performs those duties and carries out its
transactions for the benefit of the public and not for private profit. Such an authority is
not precluded from making a profit for the public benefit”. Mathew J in his concurring
judgment went further and propounded a view which presaged the subsequent
developments in the law. He said that a state is an abstract entity. It can only act through
the instrumentality or agency of natural or juridical persons. Therefore, there is nothing
strange in the notion of the state acting through a corporation and making it an agency or
instrumentality of the State.23 For identifying such an agency or instrumentality he
propounded four indicia:
(1) A finding of the state financial support plus an unusual degree of control over the
management and policies might lead one to characterize an operation as state action.
(2) Whether the operation is an important public function.
(3) The combination of state aid and the furnishing of an important public service may
result in a conclusion that the operation should be classified as a state agency. It a given
function is of such public importance and so closely related to a governmental function as
to be classified as a government agency, then even the presence or absence of state
financial aid might be irrelevant in making a finding of state action. It the function does

21
Rajasthan Electricity Board vs. Mohan Lal & Ors., 1967 AIR 1857 [The question there was whether
the Electricity Board - which was a Corporation constituted under a statute primarily for the purpose of
carrying on commercial activities could come within the definition of ‘State’ in Article 12.]; Mysore Paper
Mills Ltd. v. The Mysore Paper Mills Officers Association and Anr. JT 2002 (I) SC 61 [What is
significant in this decision is that the conclusion whether an independent entity satisfies the test on
instrumentality or agency of the government is not whether it owes its origin to any particular Statute or
Order but really depends upon a combination of one or more of the relevant factors, depending upon the
essentiality and overwhelming nature of such factors in identifying the real source of governing power, if
need be, by piercing the corporate veil of the entity concerned.]
22
Supra n. 13.
23
Ibid.

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not fall within such a description then mere addition of state money would not influence
the conclusion.
(4) Whether such a corporation is an agency or instrumentality of the government for
carrying on a business for the benefit of the public. In other words, for whose benefit was
the corporation carrying on the business?
The tests propounded by Sukhdev Singh were elaborated in Ramana24 and were
re-formulated two years later in Ajay Hasia’s25 case. What may have been technically
characterised as obiter dicta in Sukhdev Singh and Ramana26, formed the ratio decidendi
of Ajay Hasia. It was made clear that the genesis of the corporation was immaterial and
that,
“The concept of instrumentality or agency of the government is not limited to a
corporation created by a statute but is equally applicable to a company or society and in
a given case it would have to be decided, on a consideration of the relevant factors,
whether the company or society is an instrumentality or agency of the government so as
to come within the meaning of the expression “authority” in Article 12 .”

24
Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. [1979] 3 SCR
1014 [ The case laid down six tests for determining as to when a corporation can be said to be an
instrumentality or agency of the Government, these can be summarized as:
(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a
long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the
corporation, it would afford some indicating of the corporation being impregnated with governmental
character.
(3) It may also be a relevant factor.......whether the corporation enjoys monopoly status which is State
conferred or State protected.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State
agency or instrumentality.
(5) If the functions of the corporation are of public importance and closely related to governmental
functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of
Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor
supportive of this inference of the corporation being an instrumentality or agency of Government.]
25
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 [The case dealt with a challenge under
Article 32 to admissions made to a college established and administered by a Society registered under the
Jammu & Kashmir Registration of Societies Act 1898. The contention of the Society was that even if there
were an arbitrary procedure followed for selecting candidates for admission, and that this may have
resulted in denial of equality to the petitioners in the matter of admission in violation of Article 14,
nevertheless Article 14 was not available to the petitioners because the Society was not a State within Art.
12. The Court recognised that the Society cannot be equated with the Government of any State nor can it be
said to be a local authority and therefore it must come within the expression “other authorities” if it is to
fall within the definition of ‘State’.]
26
Since in both case the “authority” in fact involved was a statutory corporation.

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 The tests to determine whether whether a body falls within the definition of
‘State’ in Article 12 laid down in Ramana with the Constitution Bench imprimatur in
Ajay Hasia form the keystone of the subsequent jurisprudential superstructure judicially
crafted on the subject which can be seen in the follow up by subsequent precedents .27
Perhaps this rather over - enthusiastic application of the broad limits set by Ajay Hasia
may have persuaded this Court to curb the tendency in Chander Mohan Khanna case28,
where with a striking a note of caution it said that these are merely indicative indicia and
are by no means conclusive or clinching in any case.
The picture that ultimately emerges is that the tests formulated in Ajay Hasia are
not a rigid set of principles so that if a body falls within any one of them it must, ex
hypothesis, be considered to be a State within the meaning of Article 12. The question in
each case would be - whether in the light of the cumulative facts as established, the body
is financially, functionally and administratively dominated by or under the control of the
Government. Such control must be particular to the body in question and must be
pervasive. If this is found then the body is a State within Article 12. On the other hand,
when the control is merely regulatory whether under statute or otherwise, it would not
serve to make the body a State.
Coming now to the facts relating to CSIR, we have no doubt that it is well within
the range of Article 12, a conclusion which is sustainable when judged according to the
tests judicially evolved for the purpose.

b) CSIR IS A STATE UNDER ARTICLE 12

For the purposes of CSIR to fall within the ambit of article 12, it must fall within
the indicia elaborated in the Ramana Shetty’s case. To ascertain this, the court probed

27
See, B.S. Minhas v. India Statistical Institute & Ors., AIR 1984 SC 363; Central Inland Water
Transport Corporation Ltd. v. Brojo Nath Ganguli, AIR 1986 SC 1571; All India Sainik Schools
Employees' Association v. Defence Minister-cum-Chairman Board of Governors, Sainik Schools
Society, New Delhi and Others, 1988 (1) SCC 237. For a contrary view, see, Chander Mohan Khanna
v. National Council of Educational Research and Training and others, 1992 AIR SC 76; Tekraj
Vasandi alias K.S. Basandhi v. Union of India and others, 1988 (1) SCC 237; The Workmen, Food
Corporation of India vs. Food Corporation of India, AIR 1985 SC 670.
28
Chander Mohan Khanna v. National Council of Educational Research and Training and others,
1992 AIR SC 76.

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into the history, working, functional and administrative structure of the organization
which led to the conclusion of the council being an “other authority” within article 12.
The council was setup in 1942 for the purpose of coordinating and exercising
administrative control over the working of the two research bodies already set up by the
Department of Commerce, and to oversee the proper utilisation of the Industrial Research
Fund under the Registration of Societies Act, 1860. Bye-laws and Rules were framed by
the Governing Body of the Society in 1942 which have been subsequently revised and
amended. Unquestionably this shows that the CSIR was ‘created’ by the Government to
carry on in an organized manner what was being done earlier by the Department of
Commerce of the Central Government.
Further, the resolution for the formation of CSIR detailed out the functions of the
council which include:
• Promotion, guidance and co-ordination of scientific and industrial research.
• Establishment or development and assistance to special institutions.
• Utilisation of the results of the researches conducted under the auspices of the
Council towards the development of industries in the country.
• Establishment, maintenance and management of laboratories, workshops,
institutes, and organisation to further scientific and industrial research and utilise
and exploit for purposes of experiment or otherwise any discovery or invention
likely to be of use Indian Industries.
These objects which have been incorporated in the Memorandum of Association
of CSIR manifestly demonstrate that CSIR was set up in the national interest to further
the economic welfare of the society by fostering planned industrial development in the
country. It has already been held by the Court that such a function is fundamental to the
governance of the country.29
Incidentally, the CSIR was and continues to be a non-profit making organization
and all its income and property, however derived shall be applied only ‘towards the
promotion of those objects subject nevertheless in respect of the expenditure to such
limitations as the Government of India may from time to time impose’.30

29
Rajasthan Electricity Board vs. Mohan Lal & Ors., 1967 AIR 1857.
30
According to clause (4) of CSIR’s Memorandum of Association.

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 The dominant role played by the Government of India in the Governing Body of
CSIR is evident. The Director- General who is ex - officio Secretary of the Society is
appointed by the Government of India Furthermore, the members of the Governing Body
who are not there ex officio are nominated by the President and their membership can
also be terminated by him and the Prime Minister is the ex -officio President of CSIR. It
was then said that although the Prime Minister was ex -officio President of the Society
but the power being exercised by the Prime Minister is as President of the Society. The
Governing Body is required to administer, direct and control the affairs and funds of the
Society and shall, have authority ‘to exercise all the powers of the Society subject
nevertheless in respect of expenditure to such limitations as the Government of India may
from time to time impose’. The aspect of financial control by the Government is not
limited to this and is considered separately. The Governing Body also has the power to
frame, amend or repeal the bye-laws of CSIR but only with the sanction of the
Government of India.31
In Sabhajit Tewary, it was then said that although the Prime Minister was ex -
officio President of the Society but the power being exercised by the Prime Minister is as
President of the Society. With respect, the reasoning was and the submission is
erroneous. Powers may be exercised by an officer, in this case the Prime Minister, which
are not specifically conferred upon him, but are necessarily, implied in his office (as
Prime Minister), these are ex-officio.32
As far as expenditure is concerned, the budget estimates of the Society are to be
prepared by the Governing Body ‘keeping in view the instructions issued by the
Government of India from time to time in this regard’. Apart from an internal audit, the
accounts of the CSIR are required to be audited by the Controller and Auditor General
and placed before the table of both Houses of Parliament.33
In the event of dissolution, unlike other registered societies34, the members of
CSIR have no say in the distribution of its assets and on the winding up or dissolution of
31
Bye -law 44 of the 1942 Bye-laws had provided ‘any alteration in the bye -laws shall require the prior
approval of the Governor General in Council’.
32
An ex- officio appointment means that the appointment is by virtue of the officer; without any other
warrant or appointment than that resulting from the holding of a particular office. See, Black’s Law
Dictionary, 7th ed.
33
Rule 69, Memorandum of Association of CSIR.
34
Which are governed by Section 14, Societies Registration Act, 1860

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CSIR any property remaining after payment of all debts shall have to be dealt with “in
such manner as the Government of India may determine”35. CSIR is therefore both
historically and in its present operation subject to the financial control of the Government
of India. The assets and funds of CSIR though nominally owned by the Society are in the
ultimate analysis owned by the Government.
Besides a new fact relating to CSIR has come to light since the decision in
Sabhajit Tewary, which unequivocally vindicates the conclusion reached by the court and
fortifies us in delivering the coup de grace to the already attenuated decision in Sabhajit
Tewary. On 31st October 1986 in exercise of the powers conferred by sub-section (2) of
Section 14 of the Administrative Tribunals Act, 1985, the Central Government specified
17th November 1986 as the date on and from which the provisions of sub- section (3) of
Section 14 of the 1985 Act would apply to CSIR ‘being the Society owned and controlled
by Government’. The notification issued by the Central Government served to shift the
service disputes of the employees of CSIR from the constitutional jurisdiction of the High
Court under Article 226 to the Administrative Tribunals on the factual basis that CSIR
was amenable to the writ jurisdiction as a State or other authority under Article 12 of the
Constitution36, thereby, removing any resident doubt as to the nature of CSIR and
decisively concludes the issues before the court against it.
Thus, in the light of the facts presented, it can be seen that CSIR satisfies the
criteria of being considered as an authority within article 12 and should be regarded as a
state for the purposes of enforcement of fundamental rights under Part III of the
constitution.
IV.
CONCLUSION
“Judges have made worthy, if shamefaced, efforts, while giving lip service to the rule,
riddle it with exceptions and by distinctions reduce it to a shadow.”37

35
Under clause (5) of the Memorandum of Association of CSIR.
36
S.R.S. Kumar v. Union of India, 1986 Indlaw SC 193; L. Chandra kumar v. Union of India, (1997) 3
SCC 261.
37
Benjamin N. Cardozo - The Nature of the Judicial Process (1921).

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 From whichever perspective the facts are considered there can be no doubt that
the conclusion reached in Sabhajit Tewary was erroneous. If the decision of Sabhajit
Tewary had sought to lay down as a legal principle that a society registered under the
Societies Act or a company incorporated under the Companies Act is, by that reason
alone, excluded from the concept of State under Article 12, it is a principle which has
long since been discredited. In the assessment of the facts, the Court has assumed certain
principles, and sought precedential support from decisions which were irrelevant and had
“followed a groove chase amidst a context which has long since crumbled”.38 Had the
facts been closely scrutinised in the proper perspective, it could have led and can only
lead to the conclusion that CSIR is a State within the meaning of Art. 12.
It would be disastrous if such an erroneous precedent should be allowed to sustain
as the law of the land. The mere fact that the judgment stood as an authority for 25 years
should not be an impediment in overruling the same. It should be noted that “there is
nothing in our Constitution which prevents the court from departing from a previous
decision if it is convinced of its error and its baneful effect on the general interests of the
public.”39
With regard to article 12, it should be noted that concept of State has undergone
drastic change. Today State cannot be conceived of simply as a coercive machinery
wielding the thunderbolt of authority.40 The courts should be anxious to enlarge the scope
and width of the Fundamental Rights by bringing within their sweep every authority
which is an instrumentality or agency of the government or through the corporate
personality of which the government is acting, so as to subject the government in all its
myriad activities, whether through natural persons or through corporate entities, to the
basic obligation of the Fundamental Rights. Attempts should be made by the courts to
expand the reach and ambit of these, rather than to attenuate their meaning and content.41

“Oh, the little more, and how much it is!

And the little less, and what worlds away!”

38
Union of India & Ors. v. Raghubir Singh (dead) By LRs. etc., AIR 1989 SC 19331; Maganlal
Chhaganlal (P) Lts. V. Municipal Corporation of Greater Bombay etc. , (1974) 2 SCC 402.
39
Bengal Immunity Co. Ltd. v. State of Bihar and Ors., AIR 1955 SC 661.
40
Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., AIR 1975 SC 1331.
41
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

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