Article 12 – Fundamental Rights: Part III (Articles 12-35) – Polity – Module 4

Part III of the Indian Constitution talks about Fundamental Rights. The fundamental rights were included in the constitution...

Fundamental Rights: Part III (Articles 12-35)

Part III of the Indian Constitution talks about Fundamental Rights. The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. There are seven categories of Fundamental rights which are covered from Articles 12-35.

Article 12: Definition

In this Part, unless the context otherwise required, “the State” includes the Governmental 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.

  • According to it, the State includes the following:

(a) Government and Parliament of India, that is, executive and legislative organs of the Union government.

(b) Government and legislature of states, that is, executive and legislative organs of state government.

(c) All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.

(d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

  • Local Authorities – Art 243- 243O.
  • Other Authorities (Someone who got legislative power) – Art 243P- Art 243ZG.
  • These are formed by Executive Order or legislation, both collectively made as PSU.
  • BHEL – Executive Order
  • SEBI, LIC, SBI, ONGC – Legislative Order
  • In case Ajay Hasia (PSU as state) vs Khalid Mujib, (1981), Judiciary explained the condition in which PSU can be considered as a State.
  • Share – Capital held by the Government.
  • Financial requirement is fulfilled by Govt. Exchange.
  • Corporation enjoys monopoly.
  • Corporation works in public interest.
  • In case Chandra Mohan Khanna Vs NCERT, (1992) S. C. reverts its earlier stand and considered for the determination of PSU as a state, doctrine of Ejusden Generis shall not apply. It shall be explain on the Doctrine of Idiographic.
  • Edjusden Generis is based on law of uniformity i.e, what applies to one applies to all while Idiographic comes from the root word idios (Greek) which means unique that every explanation is exclusive.

Judiciary as a state

  • In case Ratilal vs State of Bombay, it was explained that Judiciary is not a state because Judiciary is interested with the task of protecting the fundamental rights, it cannot be explained expected to violate.
  • In case Budhan Choudhary vs State Of Bihar, Supreme Court reverts its judgment and considered Judiciary as a state.
  • In Case Parbhani Transport Corporation Society Limited Vs Regional Transport Authority, (1960)  Supreme Court reverts the previous stand and considered that it is not a state but in case of willful violation Article 14 and for non judicial function, it shall be considered as a state.
  • BCCI is not financially, functionally or administratively dominated by Government of India now it is under the control of government therefore not a state. Zee Telefilms Limited Versus Union Of India (2005)
  • Assam Small Scale Industries Development Corporation Limited is a statutory body and so is ‘state’ within the meaning of article 12 of the Constitution of India. Assam Small Scale Industry Development Corporation Limited vs JD pharmaceuticals. (2006)
  • The Central Coalfields Limited Falls within the definition of state. Mohan Mahto versus Central coalfields Limited. (2007)

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