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SADHVI C. KANTH

2ND LL.M.,

SLCU.

ARTICLE 12 OF CONSTITUTIONV.

LIBERALISATION PRIVATIZATION &

GLOBALISATION

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Art. 12 of Indian Constitution

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Article 12

State as provided under Article 12 of the Constitution has

four components:

( a ) The Government and Parliament of India-Government means any department or institution of

department. Parliament shall consist of the President, the

House of People and Council of States.

( b ) The Government and Legislature of each State, State

Legislatures of each State consist of the Governor,

Legislative Council and Legislative Assembly or any of

them.

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(c) Local Authorities within the territory of India

Authority means( i ) Power to make rules, bye- laws, regulations,

notifications and statutory orders.

( ii ) Power to enforce them.Local Authority means Municipal Boards, Panchayatsand others legally entitled to or entrusted by thegovernment, municipal or local fund.

( d ) Other Authorities , other than local authoritiesworking

( i ) Within the territory of India or;

( ii ) Outside the territory of India.

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Other Authorities

The most noteworthy expression under Article 12 is otherauthorities

Not defined in the Constitution.

The wider this term is interpreted, the wider the ambit of

fundamental rights would become.

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OTHER AUTHORITIES

In University of Madras v. Santa Bai (AIR 1954 Mad67)

the Madras High Court evolved the principle ofejusdem generis which meant only authorities that

perform governmental or sovereign functions can be

included under Article 12.

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Electricity Board, Rajasthan v. Mohan Lal (AIR 1967 SC 1857)

the Supreme Court held that other authorities would

include all authorities created by the Constitution or statute on

which powers are conferred by law.

It was not necessary that the statutory authority should be

engaged in performing government or sovereign functions.

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In Sukdev Singh v. Bhagat Ram Sardar Singh Raghuvanshi, (1975(1) SCC 421)

- the court had to deal with the question, whether

statutory corporations such as the ONGC, IFC and LIC, came

within the definition oftheState under Article 12.

The court held that the three corporations were theState

as the three corporations were created by statutes, had the

statutory power to make binding rules and regulations, and

were subject to pervasive government control.

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In Ajay Hasia v. Khalit Mujib Sehravarai,

(AIR 1981 SC 487)

Here a society registered under the societies registration act runningthe regional engineering college, sponsored, supervised and

financially supported by the government was held to be an

authority for the purposes of Article 12.

The court laid down the following tests to adjudge whether a

body is an instrumentality of the government or not:

1. If the entire share capital of the corporation is held by the

government,

2. Where the financial assistance of the state is so much as to

meet almost entire expenditure of the corporation.

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3.Whether the corporation enjoys monopoly status, which is state

conferred or state protected.

4.Existence of deep and pervasive state control.

5.If the functions of the corporation are of public importance.

6.If a department of government is transferred to corporation.

If on a consideration of these factors it is found that the corporation isan instrumentality or agency of government, it would be an authorityand therefore, state within the meaning of article 12.

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L.P.G.

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L.P.G., implication in to Indian economy.

Extensive interference of private sector.

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Can Fundamental Rights be claimedagainst them?

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When does an act of a private party begins to

resemble the act of a public authority?

This may happen because of,

(i) governmental nexus and assistance to the private

act or

(ii) concentration of economic power

(iii) the simple fact that the private party has

control over something which is indispensable for

the ordinary living of other individuals.

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The governmental assistance may take the form of,

(i) tax concession;(ii) grant of monopoly;

(iii) financial assistance;

(iv) the power of eminent domain; or(v) any other way in which meaningful assistance may

be given.

Joint ventures or joint ownership of an undertaking will

definitely come in the category of governmentalcollaboration.

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Article 12 in the context of LPG

JUDICIAL APPROACH

BALCO Employees Union V Union of India, (AIR SC 350) In this case the employees challenged the decision of the Central

Government to disinvestment majority shares of Bharat AluminiumCo.Ltd., (BALCO) the public under taking to private party.

The workers contended that they had been adversely affected by thedecision of Government of India to disinvest 51% shares in BALCO in

favour of private party and Also contended that by reason of disinvestment the workers have lost

their right and protection under Article 14 and 16 of the Constitution ofIndia.

The SC strongly defended and justified the Governmental policy ofdisinvestment by saying that the policies of the government ought not

to remain static and held that the process of disinvestment is Policydecision involving complex economic factors and the courts haveconsistently refrained from interfering with economic decision.

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MULTINATIONAL CORPORATIONS, INDUSTRIALGAINTS - STATE.

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The Recommendation of the National

Commission to Review the working of

the Constitution, 2002

New Article 12A should be inserted relating to private

bodies or persons to making them subject tofundamental rights.

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Conclusion The need of the times is that fundamental rights be made

available against private entities also.

Otherwise persons aggrieved by actions of large private

corporations, will have no place to turn to.

Defeating the very purpose of fundamental rights asenvisaged by the framers of the constitution.

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References Arvind P. Datar. Commentary on the Constitution of India,

2nd. Vol.1, 2007.

Seervai, H.M. Constitution Law of India, Vol.1

Singh, Arvind. Globalisation: Myths and Realities. Vol.11

(Jul-Dec.2010), p.6-10.

Need For Expanding The Definition Of The State Under

Article12 Of The Constitution Of India In The Era Of LPG

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