Article 226 Current Affairs - 2019

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Delhi HC: United Nation not State under Article 12

In a recent judgement the Delhi High court (HC) ruled that United Nations Organization (UNO) is not ‘State’ in terms of Article 12 of the Indian Constitution and thus it is not amenable to its jurisdiction under Article 226.

About The Case

  • Case: The Delhi HC judgment adjudicated the petition filed concerning immunity enjoyed by UNO under United Nations (Privileges and Immunities) Act, 1947.
  • Petitioner: The plea in case is filed by a former UNO employee who was found guilty of misconduct following the findings of Procurement Task Force. He was then convicted by a US Federal Court and sentenced to 8 years of imprisonment and 2 years of mandatory probation, was later released and deported to India in May 2014. The petition filed by him claims that due process was not followed in his case.
  • Course Followed:
    • In November 2018, the petitioner sought permission of Union Ministry of External Affairs (MEA) to initiate a legal action against UNO under section 86 of Civil Procedure Code, 1908. This section 86 of CPC provides that a foreign State may be sued in any Court once the consent of Central government is obtained.
    • The MEA then stated that consent of Union Government was not required to initiate legal suit against UNO as it was not foreign State rather only an International Organization.
    • MEA although stated that UNO and its officials enjoyed immunity under United Nations (Privileges and Immunities) Act, 1947. It also added that as per Section 2 of Article II of the Schedule of Act, 1947, UNO enjoys immunity from every kind of legal process except insofar as in any particular case it has clearly waived its immunity. The same became subject matter of petition filed before the Delhi High Court.

Article 12 of Constitution of India

As per it the ‘States’ in relation to Part III (Fundamental Rights) of Constitution includes Government and Parliament of India (Lok Sabha and Rajya Sabha), Government and Legislature of each of State (Vidhan Sabha and Vidhan Parishad), all local (or other) authorities within territory of India or under control of Union of India.

Article 226 of Constitution of India

It empowers the high courts of India to issue orders, directions or writs, which includes writs in nature of habeas corpus, prohibition, mandamus, certiorari, and quo warranto (or any of them) to any concerned person or authority, including the government (in appropriate cases).

Governments Prerogative to Frame Schemes: Supreme Court

The Supreme Court has censured the Uttarakhand High Court for framing a scheme to regularise hundreds of casual workers engaged by the Border Roads Organisation (BRO) under the Ministry of Defence in the construction of roads for Char Dham Yatra pilgrimage.

What was the Issue?

  • A case was filed in the Uttarakhand High Court by unions representing the casual workers, including the All India Trade Union Congress against the centre alleging that the Centre had not regularised the labourers though they had worked for BRO for years.
  • Disposing of the petition the Uttarakhand High Court itself framed a scheme to regularise the services of the casual labourers and granted them benefits similar to those of regular employees under the labour law.

Observations made by the Supreme Court

  • It is the sole prerogative of the government to frame schemes and courts should stay out of governance.
  • High Court has failed to see that it is not the function of the courts to frame any scheme but it is the sole prerogative of the government to do it.
  • All that the High Court could have done is exercising of its the extraordinary power under Article 226 of the Constitution to direct the government to consider framing an appropriate scheme.

Article 226

Article 226 empowers the High Court’s to issue, to any person or authority, including the government directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.