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Report No. 145

5.19. The aspect of human rights.-

We believe that it would also be appropriate and important aspect which has been dealt with, in Ajay Hasia's case1. The relevant observations are as under:-

"The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red tapism and slow motion but by doing so, the government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post & Telegraph, TV and Radio, Rail Road and Telephone-in short, every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them.

That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because though apparently the corporation will be carrying out these functions. It will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Maneka Gandhi era. [Maneka Gandhi v. Union of India, (1978) 1 SCC 248: (1978) 2 SCR 621]."

Somewhat the same aspect was expressed in different words in another case2:-

"It is a limb of Government, agency of the State, a vicarious creature of statute working on the wheels of the Acquisition Act. We do not mean to say that for purposes of Art. 309 or otherwise, this Government Company is State but limit our holding to Art. 12 and Part III."

We may mention that the public element has been relied upon in a few other decisions3. An equally convincing reason was given by Mathew, J. in his concurring judgment in the oft-cited case of Sukhdev Singh4 His observations are as under:-

"A State is an abstract entity. It can only act through the instrumentality or agency of natural or juridical persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State."

1. Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 (733), para. 7.

2. Somprakash Rekhi v, Union of India, (1981) 1 SCC 449 (463), para. 29.

3. (a) G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91: 1991 SC 1153; (b) N. Parthasarathy v. Controller of Capital Issues, (1991) 3 SCJ 325.

4. Sukhdev Singh v. Bhagat Rain, AIR 1975 SC 1331.

Article 12 of the Constitution and Public Sector Undertakings Back

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