Feeds:
Posts
Comments

Posts Tagged ‘constitution’

article 12 state

 

Article 12

  In this part, unless the context otherwise requires,” the state “includes the government and the 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.

Government and Legislature of union and states

They include the following entities such as union and state governments which include president and Governors of the state. Moreover, the term Government includes Departments of the government and institutions under the control of government like

  • Income tax
  • Excise Department
  • Forest Research Institute

Local Authorities

Some examples of bodies which come under local authorities include

  • Municipalities
  • District Boards
  • Panchayats
Other Authorities

            The constitution of India has failed to define the term other authorities which have become a bone of contention in many issues. To understand the meaning of other authorities we look into the judgements from Indian Courts.

Som Prakash Rekhi v Union of India

Broad and liberal interpretation must be given to the term other authorities keeping in mind the manifold function performed by the state. Hence, other authorities include both

  • Statutory
  • Non – Statutory Bodies

 

Test for Instrumentality of states

The Test for instrumentality of states was given in the case of R.D. Shetty v Union of India, which includes the following,

  • Financial resources of the state are the chief funding source
  • Entire share capital held by the government
  • Existence of Deep and Pervasive State Control
    • Appointment and removal of members
    • Rules made require prior approval of the government
  • Functions of Public Importance

For Corporations-Pradeep Kumar Biswas v Indian Institute of Chemical Biology

  • Department of Government is transferred to the corporation
  • When the corporation enjoys monopoly status which is conferred and protected by the State
  • Corporation need not necessarily created by statute

For Registered societies

In Ajay Hasia v Khalid Mujib, the court held that societies-registered under Societies Registration Act as a state based on the principle that “emphasis on not how the body is created by why it is created”.

Based on the above test, other authorities may include

  • Statutory corporations
  • Registered societies
  • Bodies with nexus to government functions

What is not a state?

In the case of Zee Tele Films v Union of India, the court held BCCI as not part of the state based on the following principles

  • Control must be pervasive and particular to the body in question.
  • Mere regulatory control whether under statue or otherwise would not serve to be part of the state
  • The facts established must cumulatively show that the body is financially, functionally, and administratively controlled by the government
  • If a private body performs a public function without the sanction of law, then by virtue of that functionality it cannot be called a state.
  • The socio-economic policy of the country has changed, the government is focusing more on governance than the commercial activities. Hence, further expansion of the scope for other authorities is not needed.

Is Judiciary a state?

  • Higher Judiciary is not considered a part of the state.
  • However, when judiciary exercises rulemaking power under art 145, it can be considered as a state- Rupa Ashok Hurra v Ashok Hurra

Conclusion

In conclusion, for a body to be determined as state the following facts must be proven cumulatively

article 12 state 

 

Advertisements

Read Full Post »

Introduction

“All men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the Pursuit of Happiness”. Indian constitution also recognizes similar rights for its citizens under the fundamental rights chapter. Hohfeld is an American legal theorist who analysed how a law gives rights and corresponding duties to a person. This paper analyses the Fundamental rights enshrined by the constitution to its citizens based on Hohfeldian theory.

Hohfeldian theory of rights

Hohfeld distinguishes four elements or incidents with incident being a right on its own.

  • Claims
  • Privileges
  • powers

Ram holds a claim-right against Rahim to wash Ram’s scarf if and only if Rahim has a duty to Ram to wash Ram’s scarf. Rahim owes this duty to Ram, in particular. His duty is “directed toward” him. In this case Ram, himself, will presumably benefit, but that need not be the case. If Ram holds a claim-right against Rahim to wash Ram’s sister’s scarf, then Rahim still owes this duty to Ram, not to Ram’s sister. He owes this duty to Ram even if Ram hates both her sister and the scarf, although Ram probably has the power to waive her claim-right. A claim-right always has one or more correlative duties. It can be a duty to act, as in Rahim’s case, or to refrain from action: John holds a claim-right against peter to keep off his grass if and only if john has a duty to peter to keep off his grass. The absence of a duty is a privilege. Sita has a privilege-right to sing “Priya” if and only if Sita has no duty not to sing “Priya.” A license to practice medicine gives one a legal privilege-right to do so. Claims and privileges define all the actions that are forbidden, permitted, or required. The two remaining incidents (powers and immunities) are second-order incidents: they specify rights and duties regarding the creation, destruction, and modification of other incidents. Rahul has a power-right under a set of rules if and only if those rules give him the ability to alter someone’s Hohfeldian incidents (his own or someone else’s). If Rahul is a police officer directing traffic, then the legal rules give him a power-right to alter, by means of a hand gesture, a driver’s privilege-right to cross the intersection. If Ramya promises to cook Priya dinner, then Ramya exercises her power-right (under the moral rules of promising) to grant Priya a claim-right against Ramya to cook dinner. The opposite of a power is immunity. If Narendra lacks the ability to alter one of Sunny’s Hohfeldian incidents under a set of rules, then Sunny has immunity against Narendra with respect to that incident. Imagine that Sunny is a teenaged minor child and Narendra is his father. Narendra orders Sunny to mow the lawn every summer, which gives Sunny a duty to mow the lawn. When Sunny reaches legal adulthood, he acquires immunity against Narendra’s orders: Narendra loses the legal power to impose such duties on Sunny by means of orders. Hohfeld depicts the relationships between the incidents with two charts, which include some terminology that Hohfeld invented for the sake of logical completeness:

Opposites

  • If someone has a claim, then she lacks a nonclaim.
  • If someone has a privilege, then she lacks a duty.
  • If someone has a power, then she lacks a disability.
  • If someone has immunity, then she lacks a liability.

Correlatives

  • If someone has a claim, then someone else has a duty.
  • If someone has a privilege, then someone else has a nonclaim.
  • If someone has a power, then someone else has a liability.
  • If someone has immunity, then someone else has a disability.

Fundamental Rights in India compared with Hohfeldian Incidents

The incidents can combine into various complex rights, such as Fundamental rights provided by the Indian Constitution. Ramesh’s Fundamental rights Consists of the following,

Ramesh has a privilege to form association or unions. He has no duty not to form association or unions.

  • Ramesh has a claim right to form associations or unions. The state has a duty not to infringe upon this claim right.
  • Ramesh has various powers over these claim-rights.
    1. If he is a railway coolie he can use this right and form an association along with his friend Danny.
    2. He has every right to renounce this membership of association with friend Danny whenever he wants
  • He can transfer his rights of membership to any other citizens.

If the state prohibits Ramesh from forming association without his consent then it is infringing his right. If the state is not justified in doing so, then philosophers would say that it does not just infringe his right, but the state violates them. If violation of rights is for special reasons, like in the interest of security of state, then it would be called justified infringement.

 

 

 

 

 

 

 

 

 

Read Full Post »