• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

ARTICLE 12 OF THE CONSTITUTION OF INDIA: BRIEF ANALYSIS OF ITS CONSTITUTIONAL JURISPRUDENCE

Updated: Aug 12, 2020


INTRODUCTION


“The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.”

- James Madison

As quoted above it is ultimately the people who are sovereign in all governmental setup. The great philosopher Aristotle has very rightly pointed out that man is a social and political animal. It was the idea of the development of civil society, escaping the state of nature that fascinated men to evolve various theories of society, sovereignty, law, state. With time a systematic approach was adopted & men voluntarily surrendered themselves before a governing body. Hence, State being a representative body was bestowed with greater powers along with the greater liability of ensuring peace, happiness & equal opportunities for the development of every individual.

In this backdrop, our constitution makers applying due diligence have given people space to constitutionalism&fundamental rights in the constitution. The motive was to empower the people & to keep a check on the governing authorities to ensure that the sovereignty rests with the people & government don’t start misusing their power. As it all starts with Article-12, this piece of writing is an attempt to unveil a few significant aspects attached to this Article by a brief analysis of its basic jurisprudence.


FUNDAMENTAL RIGHTS & CONSTITUTIONALISM: THE MAJOR BALANCING FACTORS

For the smooth running of civil society,some basic rights were recognized as essential for every individual to live a dignified life termed as Fundamental or Natural or Human rights. The political implication of the theory of natural rights is that these rights being inherent in man existed even prior to the birth of the State itself and cannot, therefore, be violated by the State[1]As the history of the development of mankind & politics shows that even a representative assembly of men might be arbitrary and hostile to the cherished rights of men.[2] Hence, the Fundamental rights were incorporated on the idea that a code of social philosophy regulating the conduct of everyone will remind the legislatures and executive whenever they begin to trample over rights that they are treading on a prohibited area, and also provide an opportunity for citizens to create public opinion against such measures, In short, they work as powerful weapons from the side of people & negative obligations for the governing authority.

As our Constitution makers were of the view to make India a welfare state & a mere glance at the preamble reflects it. It was felt important to give proper emphasize on ensuring constitutionalism too. It should be noted that the Constitutionalism, in brief, is specific limitations on general governmental powers to prevent the exercise of arbitrary decision-making. Unlimited powers concentrated in a few hands at the helm of affairs and their exercise would jeopardize the freedom of the people.[3]

It was probably because of these two factors that the set of fundamental rights we re separately incorporated under Part- III of the Constitution with provision for initiating charges against the governing authorities in case of their infringement.

OBJECT &MEANING OF THE TERM “STATE”

To make fundamental right powerful it was important to define the ambit of governing authority against whom these rights can be enforced. Hence, Article-12 was incorporated defining the term “State” per se as the very first Article of Part-- III. The actual motive & ambit of the term can be traced from Constituent Assembly Debates.

The term “state” now defined in Article 12 of the Constitution of India was introduced as Article 7 in the draft constitution. While initiating a debate on this article in the Draft Constitution in the Constituent Assembly, the Chairman of Constituent Assembly, DrAmbedkar described the Scope of this article stating:

"The object of the fundamental rights is twofold. First, every the citizen must be in a position to climb those rights. Secondly, they must be binding upon every authority. I shall presently explain what the word ‘authority’ means – upon every authority which has got either the power to make a loss or the power to have discretion vested in it. Therefore, it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding upon the Provincial Government, they must not only be binding upon the Government established in the Indian States, they must also be binding upon District Local Boards Municipalities, even village panchayats and taluk boards, in fact, every authority which has been created by law and which has got certain power to make laws, to make rules or make bye-laws''

Though the significance of defining an authority was clear from this explanation, one general question was raised by few of our eminent constitution-makers with respect to this article regarding the reasoning behind defining the term “state” all again, particularly for Part- III. Here, it will be right to quoteShri Ghanshyam Singh Gupta(C. P. & Berar) as while answering to a query he very clearly defines the distinction between the usages of the term “STATE” at two places in the Constitution in following words-

The word "State" occurs in two places in the Draft Constitution. One is in Article 1 and the other is in Article 7. The meaning of the word state in Article 1 is comprehensive and mostly relates to the territorial side of it, and in Article 7 it relates to the authoritative side of it, the Government part of it……..So article 7 which defines the word "State" does not define the territory but it defines the authority of the State. Article 1 defines the territory of the State

This explanation indicates that the main intention behind the usage of the term state in article 12 (initially article 7) was to denote authority and not to denote the territory.For better clarity, it should be noted that “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 or corporation having quasi-governmental powers and authorized to administer a revenue-producing public enterprise[4]”.


ARTICLE 12: DEFINITION &INTERPRETATION

Till now we understand that ‘defining State was necessary as the Fundamental Rights are expressly guaranteed against the State.[5]’ In the Constitution, Article-12 is defined in the following words:

In this Part, unless the context otherwise requires, “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.

The article basically considers four major heads as “State”. By the virtue of this article Parliament of India, Legislature of each States, Local authorities & other authorities are equivalent to State. Among these, the phrase “other authorities”is treated as complicated one owing to its controversial & frequently changing interpretation from time immemorial.

Given the factors till discussed, deep analysis & experts view on the article highlights this phrase was intentionally facilitating liberty for its interpretation according to the change in time & growing needs of the society, ensuring the constitution of India as a living document for the ages.

As the duty to keep constitution a ‘living document’ is bestowed on the shoulders of Judiciary. Fulfilling it the Judiciary has adopted various tests & approaches for its interpretation. Firstly, in the case of University of Madras V. Shanta Bai[6] when this question came before the Court, taking conservative approach the court applies the test of ‘EJUSDEM GENERIS’. With passing of time considering the jurisprudence behind Article-12 & its direct connection with welfare of people the Judiciary changes his outlook and moved towards settling a wider & more liberal interpretation of this phrase. In the case of Rajasthan Electricity Board V. Mohanlal[7], SOVERIGN POWER TEST was applied and the Court held that only such statutory or constitutional authorities are ‘state’ which possesses power to make law and to administer such law or have the power to make binding directions, the disobedience of which is punishable as offence.At present, the factors taken into consideration in the case of Ajay Hasia V. Khalid MujibSehravardi[8]is being treated as precedence. Primarily, for an authority to fall under the ambit of other states it is to be seen if the body in question is financially, functionally and administratively dominated by or under the control of the Government or not. This test is called as ‘GOVERNMENT INSTRUMENTALITY TEST’.The notable point here is that every time nexus between the body in question & sovereign authority was taken into consideration while formulating new tests & interpreting the phrase.


CONCLUSION

To conclude, it should be noted that the community expresses itself through the organs of government & applying Jellinek’s theory of auto-limitation, it is not wrong to say that though the state creates the law, it submits to law voluntarily and is bound by it.[9]As in all the conditions, it is the people who are sovereign inserting fundamental Right was essential. As the very purpose of fundamental rights is to bars the power of governing authority, Article-12 that defines the term “State” for the purpose of enforcement of fundamental rights is of paramount importance & fundamental rights per se along with constitutionalism played significant role forming its jurisprudence. The background study of Constitutional Assemble Debates clarifies that state signifies the authority holders & the way Dr Ambedkar has defined the term authority it clarifies that the framers wanted to give this term wide meaning. Hence, incoming time Courts needs to wider the ambit of this Article furthermore owing to the change in societal structure & works performed by private organizations on behalf of State. The core of the discussion suggests that the ambit as State is directly proportional to empowering the people & restricting the power of Governing authorities.


Author of the Piece is Srishti Sarraf of Chanakya National Law University, Patna

[1]The Concept Of State Action Under Article 12 Of The Indian Constitution, 81, https://shodhganga.inflibnet.ac.in/bitstream/10603/91999/11/11_chapter%203.pdf [2]Ibid 82 [3]MadabhushiSridhar, Evolution and Philosophy behind the Indian Constitution, 04, http://www.mcrhrdi.gov.in/91fc/coursematerial/pcci/Part1.pdf. [4]The Concept Of State Action Under Article 12 Of The Indian Constitution, 95, https://shodhganga.inflibnet.ac.in/bitstream/10603/91999/11/11_chapter%203.pdf [5]Ibid 80 [6]The University Of Madras vs Shantha Bai And Anr, 67AIR Mad, (1954). https://14.139.209.68:10443/proxy/39424bf4/https/www.manupatrafast.in/pers/viewDocByManuidPop.aspx?manuid=zwKDa4S8QbBCBSkXPhUPwazQzL9Nn2tH63hkbZbRMIGXPeOgBnaUk6esO1xJaNCmQXy7R3Ac8HnUflO/RCq0Pg/Vchar(43)5ujV/1L4Ivhn4RKratoeYpvbMq1EcHPYsJXwRZeMNHZhcnvz7auyutKTnddN1EBu8FzWnXj7fis/sugiePChQGAErdzDoDsVSMecFlOs6iqnrL3tSRclqBsEC0PZBp5N0mc6JiGAfaek6oUted5eATc22CunWFv8uJZaMN9x1T/w0taePcjbJCCpVCUKQ== [7]Rajasthan State Electricity vs Mohan Lal& Ors,1857AIR, (1967). [8]Ajay Hasia vs Khalid MujibSehravardi&Ors,487AIR SC, (1981), https://14.139.209.68:10443/proxy/39424bf4/https/www.manupatrafast.in/pers/viewDocByManuidPop.aspx?manuid=zwKDa4S8QbBCBSkXPhUPwazQzL9Nn2tH63hkbZbRMIGXPeOgBnaUk6esO1xJaNCmQXy7R3Ac8HnUflO/RCq0Pg/Vchar(43)5ujV/ [9]Dr. V.D.Mahajan, Jurisprudence And Legal Theory, 115, Eastern Book Company, 5th Ed, (1993), https://www.toppermart.com/product/v-d-mahajans-jurisprudence-and-legal-theory-5th-edition-reprint-2020/

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