This post has been created by Monesh Kumar, a third year law student, from Guru Gobind Singh Indraprastha University.
“When there is state, there can be no freedom but when there is freedom, there can be no state – Vladimir Lenin.”
The concept of State as discussed by many political thinkers and is defined in versatile ways by various philosophers. This article discusses about the scope of the definition of the State under article 12 of the Constitution of India and its relation with the article 36 of the constitution of India. The scope of article 12 has been expanded through judicial precedents. The term other authorities has been widely interpreted by the judiciary in cases. The discussion also includes the recent developments and the role of judiciary in this field.
Article 12 in The Constitution Of India
Definition 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.
Article 36 in The Constitution Of India
Definition In this Part, unless the context otherwise requires, the State has the same meaning as in Part III.
SCOPE OF THE STATE
John Locke stated that the purpose of state is “common good or good of mankind”. State is a body which comes into existence for maintaining the life and maintains the dignity of its individuals.
Its purpose is to maintain the dignity and lifestyle of its individual by holding their rights. Individual cannot have rights without the support of the state.
The framers of the constitution wanted to create a society in which all its citizen shall acquire all the basic fundamental rights. Thus, it became a duty on state to enforce all the fundamental rights to the citizen so that they could overcome the oppression done upon them in British Era. Individuals need constitution protection against state.
The rights provided in Part III of the Constitution are guaranteed against the state and are distinguished from violation of rights by private individuals. Private actions are protected by sufficient laws .Majority of fundamental rights are enforceable against state only.
The Constitution of India defines the State under article 12. It is said under this article that State means and includes the Government and the parliament (legislature) of India and all the State Governments as well as the Legislatures of each state in India and all local authority and other authorities inside the territory of India or under the control of the Government of India. The explanation of the term ‘other authorities’ has been vague.
Therefore, for the protection of the fundamental rights it is important that the definition of the state must be elaborated. Therefore, article 12 gives an extended meaning to the words ‘the state’ wherever they occur in Part III of the Constitution. Under this definition not only the Executive and Legislative organs of the Union and the States, but also local bodies for example municipality and ‘other authorities’ which include the instruments or agencies of the State.
DEBATE SUMMARY OF ARTICLE 36 UNDER CONSTITUENT ASSEMBLY
“Draft Article 28 was discussed on 19 November 1948. It opened Part IV of the Draft Constitution titled ‘Directive Principles of State Policy’ and defined the meaning of ‘State’.
The debate began with an Assembly member moving an amendment to replace ‘Directive’ with ‘Fundamental’ in Part IV’s heading.
The member pointed out that in the earlier committee stages, Part IV was titled as ‘Fundamental Principles of Governance’, and wanted to know why the heading was changed. It was clarified to the member the term ‘Directive’ was used to emphasize that principles contained in Part IV were directives; ‘fundamental’ was consciously dropped to make Part IV distinct from Part III – fundamental rights.
Another amendment proposed to replace ‘the state’ with ‘state’. This was opposed by a Drafting Committee member who argued that there were different senses in which the term ‘state’ was used in the Draft Constitution. The term ‘the state’ as used in Part III was the most appropriate for Part IV as well: panchayats, district and local boards (See Article 12), that came under ‘the state’ in fundamental rights were the relevant institutions for the implementation of Directive Principles.”
SCOPE OF ARTICLE 12
The term “State” has been very widely defined with a view to secure the fundamental rights in respect of all possible institutions. The scope of this definition has been further expanded by judicial interpretation of the term ‘other authorities’.
This expansive interpretation promotes the expansion of administrative law as more bodies are covered under its scope. It helps in the expansion of judicial review as many more bodies become subject to the writ jurisdiction, and it also makes bodies amenable to the restrictions of fundamental rights.
For better understanding the expanded meaning of the term “other authorities” in article 12, it is necessary to trace the origin and scope of article 12 in the Indian Constitution. Present article 12 was introduced in the Draft Constitution as article 7.
Dr. Ambedkar Described the Scope of this article and the reasons why this article was placed in the Chapter on fundamental rights as follows: “The object of the fundamental rights is two-fold. First, that every citizen must be in a position to climb those rights.
Secondly, they must be binding upon every authority. The word ‘authority’ means – upon every authority which has got either the power to make 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 Governments established in the Indian States, they must also be binding upon District Local Boards Municipalities, even village panchayats and every authority which has has got certain power to make laws or bye-laws.
DIFFERENCE BETWEEN ARTICLE 12 AND 36
The difference between these articles lies in the fact that article 12 is related to fundamental rights and one can directly reach the court in case of its violation, whereas, article 36 is related to the directive principles of the state policy. Else, they both have equal scope of explanation.
The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times .The State, being a sovereign authority, may any time turn into despotic and oppressive way and the basic rights of the individual may be endangered and under this circumstances the fundamental rights are the only means which can be used to get justice against arbitrariness of the State.
There is a need now to finally define this important term in context to Article 12 i.e. “STATE”.