Search

EFFICACY OF ARTICLE 12 OF THE INDIAN CONSTITUTION

Introduction:


The concept of State has been defined by many Political Philosophers. After a study on this topic one can clearly say that the opinions and ideas of the word State has undergone through drastic change from time to time.

Nicholas Machiavelli was the first political thinker to define the term State in true sense “all the powers which have had and have authority over the men are States and either monarchies or republics”,for the very first time in the world history,he was the one who included Sovereign, Secular and National Institution in the concept the State.

One of the most powerful institution in a society is the State. It is nothing but a welfare or social service agency.



Source: slideshare.net


Constitutional Background of Article 12:

While the on-going debates on this Article in the Draft Constitution of the Constituent Assembly, the Father of The Indian Constituion, Dr. B.R. Ambedkar Ji described the scope of this Article and stated why this Article should be included in Part III of The Indian Constitution. According to him the object of Fundamental Rights had two folds firstly, to enable every citizen claim these rights and secondly,it is binding on every authority to protect these rights. He insisted on the retention of Article 12 so that the fundamental rights could be claimed against anybody or authority exercising power over the people. [1]


Concept of Article 12:

The definition of the term State under Article 12 is inclusive and not exhaustive. The language of Article contains two flexible terms to cope up with the challenges posed by the society. Firstly, the “inclusive nature” of the definition, which is evident through the use of the expression “includes” which can be used to accommodate new entities within the scope of Article 12. Therefore, authorities not specified in the Article may also fall within it if they otherwise satisfy the characteristic of the ‘State’ or if they perform any functions ordinarily performed by the Government. Secondly,the use of the expression “unless the context otherwise” that allows the use of the concept of State in different situations in different manner and context.As per this Article, State includes the Government and Parliament of India and Government and Legislatures of each state in India. It also includes local and other authorities within the territory of India and local and other authorities under the control of Government of India. Agarwal v. GM, Hindustan Steel ltd.[2]



Interpretation of the term ‘other authorities’ in Article 12.

The term ‘other authorities’ has caused a good deal of difficulty and has undergone changes over a period of time.Through following judgements we can see how the scope of the term ‘other authorities’ u/A.12 has widened.

1. The Madras High Court in the case of University of Madras v. Shantha Bai[3] wherein the Court interpreted the term ‘other authority’ by applying the test of ejusdem generis and by applying this test it was held that only such authorities could be included within the term 'other authorities' as possessed governmental power. The Court also held that University of Madras is an autonomous institution receiving aid not only from the government but also from private sources like collection of fees from the students and in such a case it cannot be held as a ‘State’ under Article 12.


2. The term ‘authority’ is defined as the person or persons in whom government or command is vested.It is also defined as a public administrative agency corporation having quasi-governmental powers and authorized to administer a revenue-producing public enterprise.This dictionary meaning of the word is clearly wide enough to include all bodies created by a statute on which powers are confined to carry out governmental or quasi-governmental functions and it was quoted with approval by the Constitutional Bench in Rajasthan State Electricity Board v. Mohanlal[4]


3. In the case of Sukhdev Singh v. Bhagatram[5] The question that arose for consideration in this case was whether statutory corporations such as the Oil and Natural Gas Corporation, Life Insurance Corporation and the Finance Corporation would fall within the definition of State under Article 12.It was held that all these corporations were statutory in origin.


4. R.D. Shetty v. International Airport Authorities[6]

In this landmark judgment, Supreme Court developed the proposition that an instrumentality or agency of the Government would be regarded as an authority or may fall within ambit of Article 12. To determine whether a body can be regarded as instrumentality or not, Court laid down five test :

a. Whether the chief funding source is from the Central or State Government?

b. Whether the functional character being government in essence?

c. Whether the Pervasive Control is residing with Government?

d. Whether the Prior history of the some activity was carried out by the Government and then made over to new body?

e. Whether some kind of authority within the body was in question?

5. In the case of Ajay Hasia v. Khalid Muji[7], here the question involved was whether a college registered under the Society's' Registration Act is an 'other authority' or not, Bhagwati J. by applying Instrumentality test held that college was a ‘State.’


Conclusion

Thus, State cannot exist without individuals because a King cannot rule without his subjects. It was for the protection of the people that the term State came into existence.Mere animal existence is not sufficient, every individual need few rights and duties, so that the status of a dignified human is given to him, and that is only possible in a Sovereign State. Our Constitution was drafted to take care of the present but also to protect the future of our Nation. Article 12 is very much a fundamental right and can be challenged under Article 32 and Article 226 of the Constitution.


Author- ISHA THAKARE

(4th Year)

RTMNU’S Dr. Babasaheb Ambedkar College of Law ( Main Branch), Nagpur


Sources:

https://digilegal.co.in/

https://www.constitutionofindia.net/constitution_assembly_debates

http://www.legalserviceindia.com/legal/article-3301-article-12-of-the-constitution-of-india-1950.html (Image)

[1] VII CONSTITUTION ASSEMBLY DEBATES 607-610 (1948) [2] 1970 3 SCR 363 [3] AIR 1957 Mad. 67 [4]1967 SCR (3) 377 [5] AIR 1975 SC 1331 [6] 1979 SCR (3) 1014 [7] AIR 1981 SC 487 (496)

106 views

Subscribe Form

Mobile numbers- 9767595421, 7776044305

  • Twitter
  • YouTube
  • Instagram

©2020 by LegalEagle