ARTICLE 12 OF THE CONSTITUTION OF INDIA WITH REFERENCE TO FUNDAMENTAL RIGHTS
Fundamental Rights are rights protected and guaranteed by Part III of the Indian Constitution. They include the fundamental liberties which are both natural and legal in nature. Individuals and minority groups are generally protected by fundamental rights from arbitrary, biased official action of the Government/State. Citizens have several options to file a petition in the Supreme Court and High Court to make sure that their fundamental rights are enforced. The Constitution guarantees these without prejudice against any person. These are meant to spread the concept of political democracy. Few examples of fundamental rights are-
- Right to equality
- Right to freedom
- Right against exploitation
- Right to freedom of religion
- Cultural and educational rights
- Right to constitutional remedies
In the applications of the provisions of Fundamental Rights for Indian Citizens, the term ‘State’ has been used in a wide concept. To provide clarity to the term, Article 12 of the Indian Constitution defines it.
ARTICLE 12 AND ITS SCOPE
‘State’ has been used in a wider context to include all such agencies, actions of which can be challenged in the Supreme Court if they violate any of these fundamental rights. And that definition is given in Article 12 of the Indian Constitution. Article 12 defines ‘State’ as-
Legislative and Executive Organs of the Union Government-
- Indian Government
- Indian Parliament – Lok Sabha, Rajya Sabha
Legislative and Executive organs of the State Government-
- State Governments
- State Legislature – Legislative Assembly, Legislative Council of State
All local authorities-
- Municipalities – Municipal Corporations, Nagar Palika, Nagar Panchayats
- Panchayats – Zila Panchayats, Mandal Panchayats, Gram Panchayats
District Boards-
- Improvement Trusts, etc.
- Statutory and Non-Statutory Authorities
Statutory Authorities-
- National Human Rights Commission
- National Commission for Women
- National Law Commission
- National Green Tribunal
- National Consumer Disputes Redressal Commission
- Armed Forces Tribunal
Non Statutory Authorities-
- Central Bureau of Investigation
- Central Vigilance Commission
- Lokpal and Lokayuktas
LANDMARK JUDGEMENTS IN REFERENCE TO ARTICLE 12 OF THE INDIAN CONSTITUTION
Article 12 in itself is not a fundamental right technically, but it defines the term ‘State’ for the Fundamental Rights that are entailed in the Article 14-35. Here are some important case laws and landmark judgements which interpreted article 12 in reference to fundamental rights of the citizens –
- In University of Madras v/s Santa Bai the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities which perform governmental or sovereign functions.
- In Rajasthan State Electricity Board v/s Mohan Lal it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions. It should-
- Be created by the Constitution of India
- Have power to make laws;
- Performance of functions very close to governmental or sovereign functions
- In Sukhdev v/s Bhagatram , LIC , ONGC ANDIFC were held to be State as performing very close to governmental or sovereign functions. The Corporations are State when they enjoy
- Power to make regulations
- Regulations have force of law
- Clearance of five tests
- In R.D. Shetty v/s International Airport Authority the Court laid down five tests to be an other authority-
- Entire share capital is owned or managed by the State.
- Enjoys monopoly status.
- The Department of Government is transferred to the Corporation.
- Functional character governmental in essence.
- Deep and pervasive State control
- Object of Authority
- In Prem Garg v/s Excise Commissioner H.P. The Supreme Court held that when rule making power of the judiciary is concerned, it is the State. Other jurists say that since judiciary has not been specifically mentioned in Article 12, it is not State.
- In Rati Lal v/s State of Bombay it was held that the judiciary is not State for the purpose of Article12. In A.R.Antulay v/s R.S.Nayak and N.S.Mirajkar v/s State of Maharashtra , it has been observed that when rule making power of judiciary is concerned it is State but when exercise of judicial power is concerned it is not State.
Except these judgements and case laws there are few conditions that are inclusive in deciding the interpretation of article 12 of the Indian constitution as defined by the Supreme Court –
- If the entire share capital of the Corporation is held by the Government
- Where the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation.
- Whether the Corporation enjoys monopoly status, which is State conferred or State protected?
- Existence of deep and pervasive State control
- If the functions of the Corporation are of public importance?
- If a department of Government is transferred to Corporation?
IMPORTANCE OF ARTICLE 12 OF THE INDIAN CONSTITUTION IN REFERENCE TO FUNDAMENTAL RIGHTS
Part III of the Indian constitution deals with the fundamental rights of a citizen. These advocate for social rights, cultural rights, and economic rights including the freedom of speech, expression, thought, belief, livelihood, opportunity, faith, and worship. Article 12 becomes relevant when looking into who or what comprises the “state” that must uphold these inalienable rights. This definition of a ‘state’ is crucial. That being said, it exists to ease the application of provisions as per Part III of the Indian Constitution. This means that even if a body is not specifically introduced as a ‘state’ under Article 12, in scenarios where these public bodies have a public duty to perform which is controlled by State or public officials, they may end up being considered as a state. A writ below Article 226 may also lie in opposition to it on non-constitutional grounds or grounds of contravention of a few provisions of the Constitution outside Part III.
CONCLUSION
Article 12 is one of the most controversial articles of the Constitution. The definition of state is important because it is the duty of the state to safeguard the fundamental right of its citizens and only against the state can it be enforced. So, only when an entity is recognised as a state,a violation by it can be challenged as a violation of fundamental right against the entity in the Supreme Court. Through various generations, the apex courts have applied their brains in this definition and the new trend of judicial review has seen the immense widening of this article.
This article is written by Chirag Godhar. He is a legal associate working in Delhi and can be reached at chirag619chaudhary@gmail.com for feedback relating to the article.
