United Nations not a State under Article 12
25th May, 2019
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.
- Petitioner, who was an employee with UNO was charged with misconduct and suspended from duty without pay and was sentenced to 97 months of imprisonment and 2 years of mandatory probation by U.S. Federal Court.
- In November 2018, he wrote a letter, to Ministry of External Affairs, New Delhi, seeking grant of permission to initiate legal action against respondents' under Section 86 of Civil Procedure Code, 1908. But the Ministry stated that the consent of Government of India is not required to initiate a legal suit against the respondent as it is not a foreign state and is only an Internal Organization of UNO.
Immunity available to UNO:
- UNO and its officials enjoy immunity under the United Nations (Privileges and Immunities) Act, 1947.
- As per Section 2 of Article II of the Schedule of Act, 1947, UNO has immunity from every form of legal process except insofar as 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.
- Article 13(2) bars the ‘state’ from making any ‘law’ infringing a Fundamental Right.
- Article 12 clarifies that the term ‘state’ occurring in Art. 13(2), or any other provision concerning Fundamental Rights, have an expansive meaning.
- According to Article 12, the term ‘State’ includes:
- 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
- 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.