3 State Under Article 12 of the Indian Constitution

Dr. Lakhwinder Singh

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1.  Introduction

 

The Constitution of India is the sovereign law of the land. It promises justice, liberty and equality to the people of India. For this, the Constitution carries the basic notion of rule of law i.e. limited government, and provides the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. The whole constitutional scheme prohibits all of the three organs of State i.e. legislature, executive and judiciary, from acting against the spirit of the Constitution of India. The Constitution of India prohibits the State from interfering with the individuals‟ fundamental rights. The State cannot act arbitrarily, irrationally, and unfairly. The State cannot impose unreasonable restrictions on an individual‟s fundamental freedoms. In order to limit someone‟s right to life and personal liberty, the State has to adopt just, fair, and reasonable procedure.1 The State is under obligation to act fairly without ill-will or malice in fact or in law.2 However, all such constitutional remedies are available against the State‟s action only. In other words, the fundamental rights can be enforced against the State only. An individual cannot enforce his fundamental right against a private individual. Whereas, the present age is of an inevitable privatisation and globalisation, and has brought infinite private bodies or entities performing functions of public importance. The limited enforcement of fundamental rights involves serious implications, and asks what would happen if private entities or non-state actors violate individuals‟ fundamental rights. Furthermore, in order to understand the Indian Constitutional scheme of „State‟ under Article 12, the present paper also focuses on the situation of „state action in United States and „public authority‟ in the United Kingdom.

 

2. Learning Outcome

 

2.1 Learners would be able to analyze the modern concept of „State‟ under Article 12 of the Indian Constitution

 

2.2 Learners would be able to compare the meaning of „State‟ under Article 12 of the Indian Constitution with the prevailing conditions of the United States and the United Kingdom

 

State Action Doctrine in the United States

 

The United States Constitution protects rights and liberties of the individuals against the governmental actions. Thirteenth Amendment to the US Constitution prohibits slavery and could be enforced not only against the governmental action but also against the private actions. Except to the thirteenth amendment, all other guarantees can be enforced only against the state action. State action is a conduct of any state or federal government. In case of any civil action seeking relief on the basis of constitutional guarantees, a litigant seeking remedy has to prove that the unconstitutional conduct was that of the State. If the conduct is not that of the state, then it cannot be unconstitutional-however wrongful it may be- because the Constitution applies only to state action.3

 

Soon after the Thirteenth Amendment, the Fourteenth and Fifteenth Amendments were enacted in order to protect the newly freed Negroes from other forms of oppression by the states.4

 

In United States v Cruikshank,5 the United States Supreme Court recognized the state action doctrine in dictum and stated that the fourteenth amendment prohibits a state action only and not that of the private citizen. The court said that the provision says nothing about the rights of one citizen against another citizen.6

 

However, Congress enacted many laws with an intention to remove racial discrimination from the society. Congress passed the Civil Rights Act of 1875 to prohibit and prevent racial discrimination by private parties at public places like hotels, restaurants, theatres, transportation, etc. But the United States Supreme Court struck down the Act of 1875 in the Civil Rights cases.7 The court held that the Fourteenth Amendment prohibits a state action of a particular character only. The court said the wrongful act of an individual is simply a private wrong.8

 

Because of strict interpretation of state action doctrine, the racial discrimination remained the continuous and unending practice of the American society. However, the Court gradually expanded the definition of state action and brought many private actions within its ambit. During 1940s, the Court severely criticised the arguments of the Civil Rights Cases. 9 One of the most landmark decision was Smith v Allwright.10 In this case, a state law authorized the political parties to frame their own rules for the primary elections. The political parties prohibited the non-white voters from participating in the primary elections. The Court considered the exclusion of non-white voters as a State action and held that such action was in violation of the Fifteenth Amendment.

 

The Court further expanded the scope of state action doctrine in the case of Shelley v Kraemer.11 In this case, the legality and enforceability of private agreements barring the people of Negro or Asian race from occupying the property in a real estate, were challenged. The Court held that the enforcement of the racially discriminatory restrictive covenants was a state action and therefore, prohibited.

 

In Burton v Wilmington Parking Authority, 12 a restaurant, which was physically and financially under the control of public authority, refused to serve food or drink to a person because he was Negro. The Court held that it was a state action and discriminatory in nature.

 

However, in some other cases the Court‟s viewpoint was still limited. In Moose Lodge v Irvis, 13 a racially restrictive private club refused to entertain the African American guest. The Court held that it was purely a private citizen action. The court said that even if the authority had granted a liquor license to the private club, it did not make the private club‟s discriminatory action a state action under the Fourteenth Amendment.

 

However, the present state action needs to be expanded since the government is transferring its functions to the private entities. In the age of globalisation and privatisation, the private individuals or entities deal with the liberties of the people. If the courts take limited meaning of state action, it would become difficult for the individuals to enforce their liberties against the private individuals or entities. For example, where a private employer terminated the services of his employee because the employee was homosexual, the court should read the constitutional guarantees in the larger context.

 

4. Pubic Authority under the Human Rights Act, 1998 in the United Kingdom

 

The Human Rights Act 1998 (the “HRA”) was passed to make the public authorities more accountable and to provide effective remedies in United Kingdom courts for breaches of human rights. Section 6 of the Act prohibits public authorities from acting in contravention of the fundamental rights and freedoms mentioned under the European Convention on Human Rights. Section 7 enabled the individuals to enforce such fundamental rights and freedoms in the courts of the United Kingdom.

 

The Human Rights Act 1998 was passed in those times when the role of the private and voluntary sectors in the provision of public services had been increased

 

Therefore, it was enacted to cover those functions also which were performed on behalf of the State by private or voluntary sector bodies, acting under either statute or under contract. The Act was therefore designed to apply human rights guarantees beyond the obvious governmental bodies. Section 6 identified two distinct categories of “public authorities” which would have a duty to comply with the Convention rights i.e. “pure” public authorities (such as government departments, local authorities, or the police) and functional or hybrid public authorities performing functions of public nature.14

 

In the United Kingdom, the State cannot escape from its responsibility to protect one‟s human rights by delegating its essential public functions to private bodies or individuals.15 Moreover, the wider interpretation of „public authority‟ has also cast a positive duty on the State to protect people‟s fundamental rights by taking some active steps. And this should be done without any discrimination.

 

The definition of „functional public authority‟ was widely discussed in the case of Poplar Housing and Regeneration Community Association v Donoghue.16 In this judgement, a housing authority providing rented accommodation on behalf of a local authority was held as functional public authority. The court also gave some guiding factors for determining functional public authority which are as follows:

 

• statutory authority;

• control by the State; and

• proximity of the relationship between the private body and the delegating public authority.

 

But in the 2002 case of Callin, Heather and Ward v. Leonard Cheshire17 (the Leonard Cheshire case), the Court of Appeal held that state-funded patients in a privately-operated care home could not sue the private care home under the Human Rights Act, because the provision of care was not a „public function‟ under s.6(3)(b) Human Rights Act of 1998.

 

However, a private provider of mental health care was held to be a functional public authority within the meaning of section 6(3)(b), in R (A) v Partnerships in Care Ltd.18

 

5. Meaning of ‘State’ under Article 12 of the Indian Constitution

 

Since India is a modern welfare state, its functions have been increased over the period of time. The Indian state has to draft and implement welfare policies and schemes. Furthermore, the government needs the assistance of different departments, agents, and private bodies or individuals, for performing essential public functions. However, the State cannot escape from their responsibility to protect individuals‟ fundamental rights. Currently, many private bodies and individuals engage in various commercial and non-commercial activities and perform numerous functions of public importance affecting individuals‟ fundamental rights. But due to lack of broadest meaning of „State‟, an individual could not enforce his or her fundamental rights against these private or non-state actors.

 

In the Indian Constitutional scheme almost all of the fundamental rights are available against the state. Article 12 of the Constitution defines state to include the Government and Parliament of India, the Government and the Legislature of each of the States, all local authorities, and other authorities within the territory of India or under the control of the Government of India.

 

The most problematic expression under Article 12 is “other authorities” as this expression is not defined in the Constitution. Thus it is for the courts to interpret this term, and it is clear that the wider this term is interpreted, the wider the ambit of fundamental rights would be.

 

In University of Madras v Shanta Bai,19 the Madras High Court evolved the principle of “ejusdem generis” which meant only authorities that perform governmental or sovereign functions can be included under Article 12. The court interpreted the definition of „State‟ in a very restricted sense. The court treated the definition as exhaustive one, and confined to the authorities or those which are of like nature.

 

The next stage was illustrative one. In Rajasthan Electricity Board v Mohan Lal,20 the Supreme Court held that „other authorities‟ included those authorities which had been created by the Constitution or under any statute and, on whom powers had been conferred upon by law. And it is immaterial that some of the powers conferred on the authority may be for the purpose of carrying on commercial activities while deciding the status of the authority under Article 12 of the Constitution.

 

In Sukdev Singh v Bhagat Ram,21 the court discussed the status of statutory corporations like ONGC, IFC and LIC. The court held that all of these corporations were “the State” under Article 12 of the Constitution because these corporations were created by statutes, had the statutory power to make binding rules and regulations, and were subject to pervasive government control.

 

Mathew J in his concurring judgment went further. He said that a state acts through the instrumentality or agency of natural or juridical persons. It means that if an action has been done by a state‟s instrumentality or agency, then it would amount to State action. In order to find out whether an entity is a state‟s agency or instrumentality, he gave following determining factors:

  • Whether the State has financial and administrative control over the management and policies of the agency.
  • Whether the entity or instrumentality or agency is performing an essential public function.
  • Whether the entity or agency is carrying out business for the benefit of public or not.

 

Justice Mathew‟s concurring opinion became a guiding factor for the future judges to determine whether an entity is a state‟s agency or instrumentality or not.

 

In the case of R.D.Shetty v International Airport Authority,22 the Court laid down five tests to be considered „other authority‟, which are as follows:

  • Entire share capital is owned or managed by State.
  • Enjoys monopoly status.
  • Department of Government is transferred to Corporation.
  • Functional character governmental in essence.
  • Deep and pervasive State control.
  • Object of Authority.

 

In Ajay Hasia v Khalid Mujib,23 a regional engineering college was under the government‟s financial and administrative control of the government. The court held that the college was an “authority” for the purposes of Article 12. The court laid down the following tests to determine whether a body is an instrumentality of the government or not:

  • If the entire share capital of the corporation is held by the government
  • Where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation.
  • Whether the corporation enjoys monopoly status, which is state conferred or state protected.
  • Existence of deep and pervasive state control.
  • If the functions of the corporation are of public importance.
  • If a department of government is transferred to corporation.

 

However, these tests are not conclusive and exhaustive. These are inclusive in nature. With regard to private entities, the Supreme Court widened the meaning of State action. In M.C. Mehta v Sri Ram Fertilizers Ltd.,24   the court stressed that the ambit of Article 12 should be enlarged in order to bring private companies under the strict scrutiny of fundamental rights.

 

Furthermore, in the case of J.P. Unni Krishnan v State of A.P.,25 the court held that private educational institutions cannot be allowed to violate Article 14 as they are performing a public function of imparting education. It is very important for the judiciary to enlarge the scope of Article 12 for essential public function like education.

 

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology & Ors.,26 the Supreme Court said that the tests formulated in Ajay Hasia are not a rigid set of principles. The court held that cumulative effective of all the tests will be considered to find out whether the body is financially, functionally and administratively dominated by or under the control of the Government.

 

In Zee Telefilms Ltd. v Union of India,27 the court excluded Board of Control for Cricket in India (BCCI), from the purview of article 12. The court said that mere regulatory control, whether under statute or otherwise, did not make a body „state‟. The court found that the Board was not the creation of any statute. The government had no financial control over the Board. Moreover, the state confers no monopoly status over Board of cricket in the country. The court found that the government has only regulatory control over the Board and not administrative one. Therefore, the court held that the Board was not „state‟ under Article 12. However, the relief against BCCI is available in high courts under article 226.

 

In Lt. Governor of Delhi v V.K. Sodhi,28 the issue of whether State Council of Education, Research and Training (SCERT) is a State within the meaning of Article 12 of the Constitution of India or not, was raised. The Supreme Court found no governmental interference or control either financially, functionally or administratively, in the working of the Council.29

 

A legislation of 1989 was enacted for promoting industries in the State of Assam including small scale industries. The 1989 Act constituted a Board for the purpose of monitoring supplies to various departments. The Managing Director of the Corporation was a member of the board in terms of the provisions of the 1989 Act. Analyzing the whole functioning of the corporation, the Supreme Court in Assam Small Scale Ind. Dev. Corporation v J.D. Pharmaceuticals 30 held that it was a statutory body and was a „State‟ within the meaning of Article 12 of the Constitution of India. The contract by and between the parties being a statutory one, the Corporation was required to act fairly and reasonably.31

 

However, the above said statutory bodies, corporations, government companies or public sector  undertakings are not „State‟ within the meaning of Article 131.

The Constitution of India, 1949, Art. 131

 

It provides:

 

Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute

 

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other; or

(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

 

It has been settled through various decisions that this Article will not be applicable where citizens or private bodies are parties either jointly or in the alternative with the State or the Government of India. In Tashi Delek Gaming Solutions Ltd. and Anr. v State of Karnataka 32 the Supreme Court held that the enlarged definition of „State‟ under Article 12 would not extend to Article 131 of the Constitution. The Court says that it is also not in dispute that even a statutory corporation is not a state within the meaning of the said provision.33

 

The courts in India continuously says that „instrumentalities of State‟ are different from „State Government,‟ though both may answer the definition of „State‟ under Article 12 for the limited purpose of Part-III of the Constitution. The Supreme

 

Court in Srikant v Vasantrao,34 said that the very inclusive definition of „State‟ under Article 12 by referring to Government of India, the Government of each of the States and the local and other authorities, made it clear that a „State Government‟ and a local or other authorities, are different and that they fall under a common definition only for the purpose of Part-III of the Constitution. The Court refused to apply the enlarged definition of „State‟ given in Part-III (and Part-IV) of the Constitution, for interpreting the words „State‟ or „State Government‟ occurring in other parts of the Constitution. The Court continued to say that while the term „State‟ may include a State Government as also statutory or other authorities for the purposes of part-III (or Part-IV) of the Constitution, the term „State Government‟ in its ordinary sense does not encompass in its fold either a local or statutory authority. Considering these findings, the court held that the corporation or other state‟s instrumentalities are not „State Government‟ for the purposes of section 9-A (read with section 7) of the Representation of the People Act, 1951.

 

Again, in State of Assam v Barak Upatyaka D.U. Karmachari,35 the Supreme Court held that the fact that a corporate body or co-operative society answers the definition of „state‟ does not make it the „state government,‟ nor will the employees of such a body, become holders of civil posts or employees of the state government. Therefore the fact that a corporation may answer the definition of „state‟ does not mean that the state government is liable to bear and pay the salaries of its employees.36

 

However, recently the Supreme Court of India in Indian Medical Association Union of India,37 held that the rights of non-minority educational institutions to admit students of their choice, if exercised in full measure, that would be detrimental to the true nature of education as an occupation, damage the environment in which our students are taught the lessons of life, and imparted knowledge, and further also damage their ability to learn to deal with the diversity of India, and gain access to knowledge of its problems, so that they can appreciate how they can apply their formal knowledge in concrete social realities they will confront.

 

Since education is the most important function of public importance, every individual, body or entity performing such public function should be considered as state action within the meaning of Article 12 of the Indian Constitution. The liberal interpretation of „state action‟ is the only way to protect individuals‟ fundamental right to education in India.

 

The National Commission to Review The Working Of The Constitution 2002, had recommended that in article 12 of the Constitution, the following explanation should be added; „Explanation: – In this Article, the expression “other authorities” shall include any person in relation to such as it functions which are of a public nature.‟

 

Currently, traditional functions of a welfare state are being dealt and performed by the private entities and private individuals. Where these private entities violate individuals‟ fundamental rights, for instance if private employers terminate LGBTs‟ employment or discriminate on any other unconstitutional ground, the limited interpretation of „other authority‟ under Article 12 would be a wrong law. The individuals should be empowered to enforce their fundamental rights against private entities too.

 

8. Summary

 

In this module, the content writer has discussed the state action doctrine in the United States. The United States Supreme Court has expanded the scope of doctrine of State Action mainly relying on the non-discriminatory principles. The module also covers the situation in the United Kingdom especially the post-Human Rights Act 1998. Private provider performing public functions is a functional „public authority‟ in the United Kingdom. In India, the judicial attitude towards the meaning of „State‟ under Article 12 seems liberal one. It has been held that the body is „State‟ if it is financially, functionally and administratively dominated by or under the control of the Government. In the era of privatisation and globalisation, the individuals‟ fundamental rights would get protected only if the courts interpret the term „state‟ liberally.

 

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Web Links

 

1. http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/103/103.pdf

2. https://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v34n04_CC2. Huhn.final.pdf

3. http://heinonline.org/HOL/LandingPage?handle=hein.journals/hulr34&div=30&id=& page=

4. http://www.oyez.org/cases/1851-1900/1882/1882_2

5. http://www.jstor.org/stable/4509216

6. http://www.manupatrainternational.in/