Remark on Artwork 12 of Constitution of India.
The structure of India has described the phrase Condition for the function of Component –III and Component IV.
In Condition OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC observed that the object of Component III is to give protection to the rights and freedoms guaranteed under this section by the invasion of Condition.
Component III and Component IV carry a theme of Human Legal rights, Dignity of Particular person and also of the unity and dignity of the nation.
These elements respectively as a Unfavorable Obligation of the Condition and not to Interfere with the Liberty of the Particular person, and Favourable Obligation of the Condition to choose techniques for the welfare of the Particular person.
Sate under Artwork 12 of the structure has Four Parts:
- 1. The Federal government and Parliament of India
Federal government indicates any department or establishment of department Parliament shall consist of the President, the Home of Persons and Council of Condition.
- The Federal government and Legislature of every Condition.
Condition Legislatures of every Condition consist of the Governor, Legislative Council, and Legislative Assembly or any of them.
- All Local Authorities and
It indicates, Municipal boards Panchayats, Physique of Port Commissioner, and other legally entitled to or entrusted by the federal government.
- Other Authorities inside the territory of India or under the control of Federal government of India.
The first two categories incorporated the legislative and government wings of the Union and Condition in all their attainable versions. They are rather specific and self explanatory.
The letter two categories, significantly the very last are not so specific and require some clarification. To give a wider dimension to FR the Judiciary has interpreted “Condition” in unique context at unique time.
Basic principle of Ejusdem Generis:
In University of Madras v/s Santa Bai ,the Madras High Court docket evolved the theory of ejusdem generis i.e. of the like nature. It indicates that people authorities are protected under the expression ‘other authorities which conduct governmental or sovereign capabilities.
In Ujjam Bai v/s Union of India the Supreme Court docket rejected the theory of ejusdem generis .It observed that there is no prevalent genus between the authorities described in Short article 12. And by providing the reference of Artwork 19 (1) (g), and Artwork 298 which contemplated engagement of state in the functionality of business activity, and Artwork 46 marketing of schooling or financial fascination.
In Rajasthan Condition Electrical power Board v/s Mohan Lals it was held that to be Condition, it is not vital that the authority will have to be carrying out governmental or sovereign capabilities .It must-
( i ) Be made by the Constitution of India
(ii ) Have energy to make legal guidelines
In R.D.Shetty v/s Worldwide Airport Authority, the Court docket laid down five tests to be an other authority-
( i ) Complete share cash is owned or managed by Condition.
( ii ) Enjoys monopoly position.
( iii ) Division of Federal government is transferred to Company.
( iv ) Purposeful character governmental in essence.
( v ) Deep and pervasive Condition control.
( f ) Item of Authority
In Ajay Hasia v/s Khalid Mujib the Court docket observed that the take a look at to know whether a juristic human being is Condition is not how it has been introduced but why it has been introduced.
( g ) Clearance of five tests
In Union of India v/s R.C.Jain , to be a regional authority, an authority will have to satisfy the next tests-
( i ) Independent authorized existence.
( ii ) Functionality in a described spot.
( iii ) Has energy to raise cash.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with capabilities which are normally entrusted to municipalities.
In Prem Garg v/s Excise Commissioner H.P. the Supreme Court docket held that when rule earning energy of judiciary is anxious, it is Condition.
Other jurists say that considering that judiciary has not been especially described in Short article 12, it is not Condition, consequently if the Decide or magistrates are not be aware Condition although there are functioning as a Judiciary. But if they are also working as Administrator then they will be dealt with as Condition inside the indicating of Artwork 12. The Main Justice of High courtroom shall have capabilities in twin job :
- Main Justice of High Court docket
- Main Administrative of High Court docket.
If any citizen aggrieved by the act of the Main Justice , although he was purpose as main administrator of the large courtroom then that main justice has no cure and he shall be dealt with as a Condition under the Artwork 12.
The phrase ‘State’ under Short article 12 has been interpreted by the courts as for every the transforming instances .It has acquired wider indicating which guarantees that Component-III can be used to a greater extent. We hope that it would continue on to extent its width in coming instances.