Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |
From UPSC perspective, the following things are important :
Prelims level : Art. 12 and Fundamental Rights
Mains level : Scope and ambit of Art. 12 of Indian Constitution
- The Delhi High Court has ruled that the United Nations is not a State under Article 12 of the Constitution of India and is not amenable to its jurisdiction under Article 226 of the Constitution.
Why such move?
- An Indian diplomat convicted by a US Federal Court and sentenced to imprisonment and two years of mandatory probation, was released and deported to India in May 2014.
- In his petition, he claimed that due process was not followed in his case.
- He had in November 2018, written a letter to the MEA seeking a grant of permission to initiate legal action against the UN under section 86 of Civil Procedure Code, 1908.
- The provision provides that a foreign State may be sued in any Court with the consent of the Central government.
- The Ministry replied that the consent of the Government of India is not required to initiate a legal suit against UN as it is not a foreign state and is only an Internal Organization.
Legal immunity to UN and its officials
- UN and its officials enjoy immunity under the United Nations (Privileges and Immunities) Act, 1947.
- It also said as per Section 2 of Article II of the Schedule of Act, 1947, UNO has immunity from every form of legal process except in any particular case it has expressly waived its immunity.
Article 12 of Indian Constitution
- Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentalities and not against the private bodies.
- 13(2) bars the ‘state’ from making any ‘law’ infringing a Fundamental Right.
- 12 clarifies that the term ‘state’ occurring in Art. 13(2), or any other provision concerning Fundamental Rights, has an expansive meaning.
- According to Article 12, the term ‘State’ includes:
- The Government and Parliament of India: the term “State” includes Government of India (Union Executive) and the Parliament of India (Union Legislature)
- The Government and the Legislature of a State i.e., the State Executive and the legislature of each state.
- All local authorities; and
- Other authorities within the territory of India; or under the control of the Central Government.
- The term ‘other authorities’ in Article 12 has nowhere been defined.
- What about Judiciary?
- The Judiciary does not have a specific mention in Article 12.
- However, the school of thought is that since the judiciary has the power to make and enforce laws, it should be considered to be a State.
- However, since an erroneous judgement may cause the violation of the fundamental rights of a citizen, unreasonable decisions of the Courts are subjected to the tests of Article 14 of the Constitution.