The Need for defining the State in the Wake of Liberalization

Published on March 14, 2015

“The whole object of Part three of the constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the state.”

– Patanjali Shastri, CJ (the Second Chief Justice of India, serving in the post from 7 November 1951 to 3 January 1954 ) in State of West Bengal vs. Subodh Gopal Bose (AIR 1954 SC 92)

The need for constitutional protection against the state has compelled the creation of certain fundamental rights included in part III of the constitution. Provided to every citizen as a guarantee against the actions of the state, they are enforceable against an individual or authority only where the violation in question comes within the definition in Article 12. Under the concept unlike the other legal rights, which are the creation of the State, the fundamental rights are claimed against the State. Therefore, whether a Constitution says it or not, it is generally assumed that the fundamental rights given in it are available only against the State, i.e. against the actions of the State and its officials.

In one of its early decisions, P.D. Shamdasani v. Central Bank of India Ltd (AIR 1952 SC 59), the Supreme Court confirmed this position. In that case, the petitioner sought the protection of the court to enforce his rights in Articles 19(1) (f) and 31 against the Central Bank of India Ltd. The court dismissed the petition and said; “The language and structure of article 19 and its setting in part III of the Constitution clearly show that the article was intended to protect those freedoms against the state action…. Violation of rights of property by individuals is not within the purview of the article.” For this reason, the Constitution of the United States, the first among the modern written constitutions to provide for fundamental rights, applied those rights only to state action even though the Constitution does not say so.

The same conception has played a role in the application of the fundamental rights in our Constitution though some of them are, expressly applicable to non-state action and some others are not expressly confined to state action.

Article 12 of the constitution provides an all-inclusive definition of “state” covering every governmental authority, legislative or executive, central, state or local, and the rights as guaranteed against violation by every one of these authorities. The characterization of the word “state” implies the authorities and instrumentalities functioning within or outside the territory of India: The Government and Parliament of India, The government and legislatures 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.

“It is singularly inappropriate to assume that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of citizens under Article 19 (1). What the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more.” – Justice Gajendra Gadkar (7th Chief Justice of India, serving from February 1964 to March 1966).

The question of whether the judiciary should be included within the definition of “state” in Article 12 arose for consideration of the Supreme Court in Naresh vs. State of Maharashtra (AIR 1967 SC 1) where it was held that even if a court is presumed to be within the expression state under Article 12, a writ under Article 32 cannot be issued to such court of competent jurisdiction against its judicial orders because such orders cannot be said to violate fundamental rights. The Indian judiciary it is said though not expressly mentioned in Article 12 can be included within the expression state since courts are set up by statute and exercise power conferred by law.

In America, it is well settled that the judiciary is within the realm of the 14th Amendment. In the UK Human Rights Act 1998 the definition of public authority includes “a court or tribunal”. The Bill of Rights in the South African Constitution applies to the judiciary by virtue of Article 8(1).

It is noticed however that the judiciary is averse to being considered state because it would hamper their “independent” character. They are sensitive to issues that directly come to bear upon their decision or discretion in matters brought before them. Whenever a judge departs from a particular provision he defines the ‘field of exception’ and states ‘ the overriding principle on which his decision was based.

No judge passes an order which is not recorded in the minutes and a question of this kind is not dealt with by the judge as within his mere discretion as to what he considers expedient or convenient. A judge ordinarily decides controversies between the parties, in which controversies he does not figure, but occasionally may arise collaterally where the matter may be between the judge and the fundamental rights of any person by reason of the judge’s action.

However, it is opined by some constitutional law experts that discrimination may be brought about even by the judiciary and the inhibition of Article 14 extends to all actions of the state denying equal protection of laws whether it be the action of any one or all of the three limbs of the state. Even the judges may go wrong and therefore it is only fair and in keeping with the constitutional ideals that these errors be corrected when brought to their attention.

The irony in this discussion is that if the judiciary has to be included within the contours of Article 12 it will have to be done through the interpretation of the courts themselves since it is not part of the text of the constitution. The reluctance of the judiciary to expand the scope of Article 12 stems from its hesitation to voluntarily subject itself to scrutiny and criticism.

In this era of judicial activism, judicial legislation and wide-ranging capability to review matters the judiciary wields immense political power and since the Fundamental Rights in their creation were to be used against centers of power, it is high time that in appropriate matters the judiciary too is subject to the rigors of Part III of the constitution so that the highest constitutional ideals are realized.

With the economic liberalization in India and the globalization of the world’s economy, a general uncertainty is being entertained about the application and efficacy of Fundamental Rights due to the emergence of private sector undertakings and corporations both national and international.

The guarantee of Fundamental Rights under part III of the Constitution is essentially a device whereby the authority of an individual is protected from encroachment by those who have the power and capacity to do the same. The concentration of economic power in the hands of these corporations along with the governmental/ political support given to them has resulted in their encroaching upon and violating the Fundamental Rights of individuals and using their possessing these rights in the capacity of a private individual as an excuse or justification for the same.

There is therefore a need to bring these entities or organizations within the ambit of “state” under Article 12:

– To curb their liberty to act with prejudice causing irreparable harm to a large section of their employees resulting in unemployment on an unprecedented scale giving rise to social unrest and reducing economic growth.

-To ensure their respect for the Fundamental Rights of their employees and;

– In case of violation provide the aggrieved an opportunity to approach the court against the same.

The Recommendation of the National Commission to Review the Working of the Constitution, 31st march 2002 also suggested that private, non-state entities discharging important quasi-governmental or public functions must be subjected to the discipline of the Fundamental Rights through their inclusion within the definition of state under Article 12 and that their acts or omissions which are violative of the Fundamental Rights guaranteed in part III of the Constitution be judicially reviewed.

The need of the times is that fundamental rights be made available against private entities, otherwise, persons aggrieved by the actions of these large private corporations will have no place to turn to, thereby defeating the very purpose of fundamental rights as envisaged by the framers of the constitution.

The effect of these private entities being regarded as state or its instrumentality would be a considerable reduction in the actions of these organizations that adversely affect the Fundamental Rights of citizens as they will come under the scrutiny of courts and judicial review and limitations on their arbitrariness, irrationality and utter disregard for the rights of their employees as a consequence of their subjection to writ jurisdiction under Articles 32 and 226 of the Constitution of India.

The Author

Suhasini Joshi is a legal professional from India.