What is the “State”? – I: Article 12 and Constitutional Obligations

When we think of a Bill of Rights, there are two structural questions that we must answer before we even get to analysing its substantive content. Against whom are the rights enforceable – i.e., which parties are subject to the obligations that the rights impose. And who is entitled to enforce the rights – a question that often (but by no means always) translates into the question of which parties do the rights protect. Both these questions have been controversial. Evidently, individuals are beneficiaries of fundamental rights. But what about corporations? If individuals incorporate in order to do business, it would seem perverse to deny the right to carry on a business or profession to the corporation. But how about other non-commercial rights, like the freedom of speech and the freedom of religion? The church exists in a corporate form, but surely the church has freedom of religion rights separate and independent from the rights of its members? But what about a for-profit corporation whose owners have certain religious beliefs, which they wish to exercise in hiring decisions? Again, the press exists in corporate form, and if there’s anything that free speech includes, it’s the freedom of the press. But what about corporations donating large sums of money to political candidates, and justifying it on free speech grounds? The issues are endless, complex and often intractable.

In this series of posts, however, I wish to examine the first question: against which entities can fundamental rights be invoked?

Textually, the answer is present in Article 12 of the Constitution:

“In this part [i.e., Part III], unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

One of the important rules of legal interpretation is the rule of ejusdem generis. When a legal text has a number of specific and concrete terms, followed by a general term, then the general term must be interpreted to contain only that which would broadly be consistent with the specific terms. Insofar as Article 12 begins with the terms “the Government and Parliament of India and the Government and Legislature of each of the States”, the phrase “other authorities” – under the rule of ejusdem generis, ought to be interpreted in a manner consistent with the concrete terms that come before it. That is, “other authorities” must be confined to State-like entities.

This is not altogether surprising. Classically, bills of rights are designed to structure a vertical relationship between State and citizen. The regime of private law – the law of contract and tort – operate between citizens, while the regime of non-Constitutional public law – e.g., criminal law – operates between citizens via enforcement by the State. That, very roughly, is what the legal map would look like.

To understand why, a brief excursion into history would be apposite. Bills of rights – in their modern form – first emerged out of the Glorious Revolution in England (1689), the American Revolution (1776) and the French Revolution (1789). These revolutions were driven by a rising bourgeois class, against the dying vestiges of feudalism, and its concomitant aspects such as hereditary nobility, a landed gentry, and an economic system based around feudal relations of lord and vassal, serf and master. Consequently, while the bourgeois framed the language of the revolution in universal terms, it ultimately reflected their class interests. This is particularly evident in these Bills of Rights. Because the greatest threat to the bourgeois was an over-intrusive State meddling with trade, the primary functions that Bills of Rights played was to wall off an entire sphere of action from State interference, within which the bourgeois were free to shape their economic relations as they saw fit. The rights that we now take for granted as universal human rights – rights of expression, religion and so on – had their origins in the bourgeois’ desire to construct an unregulated economic realm free from State interference.

This explains why bills of rights were exclusively enforceable against the State. The standard answers – that there is something particularly egregious about State oppression as opposed to private oppression, and/or the State has much greater power, and so we must be particularly solicitous in protecting individuals against the State – might explain part of the issue, but not all of it. We are well aware that economic relations exist between private parties, and ultimately, are as powerful a weapon in a society of deeply unequal resource distribution, as is the coercive power of the State (the history of industrial Europe in the 19th century bears this out). The complete explanation, as we have noticed, lies elsewhere.

This model was upset in the mid-20th century, with the philosophical discrediting of laissez-faire economics, and the advent of the welfare State. The conception of the State changed from the classical liberal vision of simply guaranteeing law and order so that private parties could shape their own economic relations without interference, to a provider of important public goods ranging from education to healthcare to transport to essential commodities. Oftentimes, especially in mixed economies, the State would carry out many functions working alongside private corporations.

The philosophical shift in the functions of the State, however, also led to a corresponding philosophical shift in the idea of a bill of rights. If, now, the baseline of legitimate State action is the provision of public goods, then it stands to reason that whoever is in charge of providing those public goods ought to be subject to obligations under the bill of rights. So, for example, if we hold that it is the State’s task to provide low-cost, accessible healthcare to all its citizens, then insofar as that function is outsourced to a private party, that private party continues to perform a State function. Correspondingly, the argument goes, we are justified in imposing fundamental rights obligations upon that private party, as long as it continues to be in the shoes of the State.

We will see strands of these arguments in the important cases that the Supreme Court has decided under Article 12. Interestingly, however, there is a textual hook on which to hang this ideas. Consider again:

“In this part [i.e., Part III], unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

An equally important interpretive principle is the principle against surplusage. The legislature is deemed not to have wasted its words, and thus, an interpretation that renders a word or a phrase superfluous, is to be avoided. Here we can see that two phrases have been used: “within the territory of India” and “under the control of the Government of India”. They are connected by the word “or”, which implies that they are disjunctive. Consequently, there is a set of bodies that comes under Article 12, which is not under the control of the Government of India.

There are three possible ways of interpreting this. First, this refers to bodies under the control of the State governments. This is unsatisfactory, however, because it is clear that where the framers wanted to specify “under the control of…”, they expressly included it in the constitutional text. In other words, it seems strangely inconsistent drafting to specify “under the control of” when it comes to the federal government, and imply the same when it comes to the State government. It would have been far more convenient – and lucid – to have said, for example, “under the control of the Government of India or the legislatures of the States“.

Secondly, “within the territory of India” might be narrower than “under the control of the Government of India”, referring only to bodies expressly set up under statute. This would seem, again, to make part of the provision superfluous, because presumably statutory bodies, that owe their very existence to parliamentary legislation, are “under the control” of the Government.

The last option is to read “within the territory of India” as covering a set of circumstances parallel to that of bodies “under the control of the government”: that is, private bodies not under the control of the government, but performing governmental functions. This, of course, was the upshot of our theoretical distinction – and I argue that it is the interpretation supported by the most natural reading of the text, and the historical circumstances in which the Constitution came about.

This means, in turn, that the interpretation of Article 12 must be steeped in political philosophy. The interpreter needs to set her conceptual baseline for what she considers to be legitimate State functions – and it is on that basis that the term “other authority” will be interpreted.

Keeping this framework in mind, both historical and conceptual, we shall examine the Supreme Court’s approach to this question, in the coming posts.