Tag Archives: State

Deemed Universities and Article 12 of the Constitution

Krupakar Manukonda has drawn my attention to an interesting Supreme Court judgment handed down yesterday. In Dr. Janet Jeyapaul v SRM University, the question was whether a writ petition was maintainable against the SRM University, which is a “deemed University” within the meaning of S. 3 of the UGC Act (the petitioner had filed a writ petition complaining of unfair termination of services).

The Supreme Court held that the petition was maintainable under Article 226 of the Constitution, since SRM University had been constituted for – and was engaged in – performing a “public function”. In paragraphs 15 and 16, it relied upon De Smith, “a well-known treaty (sic!)” on judicial review, and the English case of R v Panel. This is somewhat curious, since both the treatise and the judgment deal with the scope of judicial review in a common law system sans a Constitution, while in the present case, the issue turned upon the scope of Article 226 of the Constitution. In any event, in paragraph 22, the Court provided five reasons for its decision:

“Firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging “public function” by way of imparting education. Thirdly, it is notified as a “Deemed University” by the Central Government under Section 3 of the UGC Act. Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function – namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as “Deemed University” whose all functions and activities are governed by the UGC Act, alike other universities then it is an “authority” within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an “authority” as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court under Article 226 of the Constitution.”

The underlined paragraph is a little curious. It is by now well-established that the correct test for determining whether or not a particular body falls within the meaning of “other authority” under Article 12, is whether it is within the “functional, financial and administrative” control of the State. The fact that the legal status of a body is determined by a statute is neither necessary, nor sufficient, for it to fall within Article 12. In the early case of Sukhdev Singh v Bhagat Ram, the Supreme Court had noted:

“A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.”

There is a distinction, therefore, between a body that is conferred with a certain legal status under a statute, and a body that is created by the statute. Unarguably, in the former case, the legal status, without anything more, is insufficient to bring the body within the meaning of Article 12. Here, however, the Supreme Court seems to have held that the mere fact that the SRM University is brought within the purview of the UGC Act automatically brings it within Article 12, without any analysis of whether the control test has been satisfied.

Indeed, in 2012, while dealing with an identical issue, the Rajasthan High Court observed:

“Perusal of the pleadings reveals that no facts pertaining to financial or administrative involvement and control of the Central or the State Government in any manner has been pleaded. The only argument is in regard to section 3 of the UGC Act whereby BITS has been declared as ‘deemed to be university’. Merely declaring respondent BITS as deemed to be university does not cover it under Article 12 of the Constitution.”

(The single judge’s opinion has been challenged on the ground that a previous division bench of the Rajasthan High Court had already held BITS to fall within Article 12. Interestingly, in that case, the Court had gone into a detailed analysis of the functional, financial, and administrative control exercised upon BITS by the government – see here).

It is unclear why the Supreme Court needed to go into Article 12 at all. As we have discussed before on this blog, the tests for maintainability under Articles 12 and 226 are different, and the word “authority” has a much broader meaning under Article 226 than it does under Article 12. A public function test is sufficient to attract Article 226, as compared to the much stricter control test under Article 12. This, being an Article 226 case, could have been decided solely on public function grounds. The introduction of Article 12, and the manner in which it has been discussed, raises some concerns about the future direction of law on the point.

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What is the State – V: Zee Telefilms, the Death of the Functional Approach, and an Alternative

In the last post, we saw how Ajay Hasia, and the cases following it up to Pradeep Kumar Biswas, gradually began to adopt the legal approach to the meaning of “State” under Article 12, at the expense of the functional approach. 

If Pradeep Kumar Biswas impliedly did away with the public function test, Zee Telefilms vs Union of India did so expressly. In that case, the question was whether the Board of Control for Cricket in India was “State” within the meaning of Article 12. The Board argued that its autonomous nature took it out of the ambit of Article 12, per Pradeep Kumar Biswas. Zee Telefilms, on the other hand, pointed to the “governmental functions exercised by the Board in the area of cricket.” The Court held in favour of the Board. Following Pradeep Kumar Biswas, it noted that the Board was not created by statute, the Government held no share capital, provided no financial assistance, conferred no monopoly, exercised no pervasive control, and had not transferred a government-owned corporation. Consequently, Article 12 was not applicable. Responding to the petitioners’ contentions, the Court then stated: “Even assuming that there is some element of public duty involved in the discharge of the Board’s functions even then as per the judgment of this Court in Pradeep Kumar Biswas that by itself would not suffice for bringing the Board within the net of “other authorities” for the purpose of Article 12″ (paragraph 25)

The petitioners also argued a variant of the functional test – i.e., the power of the Board, by virtue of its near-exclusive control over cricket in India, to impact an important fundamental right on a national scale: the Article 19(1)(g) right to carry on a trade, business or profession – brought it within the ambit of Article 12. Rejecting this contention, the Court held that “the pre-requisite for invoking the enforcement of a fundamental right under Article 32 is that the violator of that right should be a State first… [but] we have already held that the petitioner has failed to establish that the Board is State within the meaning of Article 12. Therefore assuming there is violation of any fundamental right by the Board that will not make the Board a “State” for the purpose of Article 12.” (paragraph 28)

The functional argument – as we have seen through this series of posts – has two (connected justifications). First, there is an idea of a “public function” – certain tasks that, because of their very nature, a government ought to perform, and that shouldn’t be left to the market (policing and defence are uncontroversial examples), such as provisions of social or individual goods that we think every person is entitled to in a modern democracy (education and healthcare are more contested examples). Secondly, it is argued that “centres of power” (a term used by the Supreme Court) are under particular obligations because of their ability to affect basic rights in a deep and pervasive manner, across the board (for instance, control over the country’s police force) – whether those centres of power are State entities, or private ones (like large corporations). In the two paragraphs excerpted above, we can see that the Zee Telefilms court directly rejected both these arguments, unambiguously consigning the functional argument to judicial oblivion.

The Court also rejected the contention that the control of cricket was in the nature of a “State function”, holding that “the State/Union has not chosen the Board to perform these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies’ own volition (self-arrogated). In such circumstances when the actions of the Board are not actions as an authorised representative of the State, can it be said that the Board is discharging State functions? The answer should be no. In the absence of any authorisation, if a private body chooses to discharge any such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it an instrumentality of the State.”

But what if, tomorrow, the State “chooses” to leave the function of policing – or maintaining prisons – or national defence – or the judicial system – to private parties? Here, we have the classic problem of a purely descriptive baseline for State function, that we first highlighted in our discussion of R.D. Shetty. With a descriptive baseline, as the State retreats, the areas within which fundamental rights operate become more and more constricted. In fact, this is precisely the argument that the Court made at the end of Zee Telefilms. Cases such as Rajasthan Electricity Board and Sukhdev Singh, it held, were decided in a different socio-economic climate; now, on the other hand, “the State is… distancing itself from commercial activities and concentrating on governance rather than on business.” Yet surely, this cannot be right. Constitutional rights cannot depend upon the economic policy that a State follows at any given time. Intuitively, as well, it seems somewhat strange to visualise a situation where, for instance, a private corporation is given control over the country’s water supply, which it then withholds from people of a particular religion – and to imagine that the Constitution will have nothing to say about that. Again, these thought experiments highlight the need for a normative baseline of “State functions”, that the Court – throughout its jurisprudence – has consistently failed to engage with.

After Pradeep Kumar Biswas and Zee Telefilms, it seems clear that Article 12 is strictly limited to instances of pervasive governmental control, and the public function test is irrelevant to the enquiry. We must look elsewhere for the solution to the problems highlighted above.

One possible solution lies in R.D. Shetty. Recall our original analysis of the case: the Court’s reasoning proceeded along two distinct prongs. One was an Article 12 analysis. The other – which preceded it – was a public law analysis. That is, the Court began with examining the government’s obligations when it acted as a contractor – that is, obligations of fairness and non-discrimination – and then extended the argument to instrumentalities or agencies of the government (which included a strong functional component). It then located another source of those obligations within Article 14 of the Constitution, which launched it off into its Article 12 analysis. In other words, obligations of fairness and non-discrimination stem both from Article 14 and from general principles of public law. The judiciary’s subsequent narrowing down of Article 12 affects the reach of Article 14, limiting it to pervasively government-controlled bodies, but leaves the reach of public law – as outlined in R.D. Shetty – untouched.

Two Supreme Court cases support this proposition. The first is Justice Mohan’s concurring opinion in Unnikrishnan.  The question in that case was whether Article 14 applied to private educational institutions. Justice Mohan observed: “What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly.

The duty to act fairly – which, in content, is identical to the Article 14 obligation – stems directly from the public duty performed by the entity. As R.D. Shetty teaches, the source of that duty might be either the Constitution, or public law. Pradeep Kumar Biswas and Zee Telefilms close off the first avenue, but not the second.

The second case is – interestingly enough – Zee Telefilms itself. Recognising the trouble with unaccountable private bodies wielding vast swathes of power, the Court held that “it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.”

Thus, the Court does not hold that non-State bodies do not have a duty to abide by the content of the fundamental rights; it expressly limits its holding to restricting the application of Part III, qua Part III, to non-State bodies. In fact, it specifically refers to Article 226, which vests in the High Court to issue orders and writs to “any person or authority” for the “enforcement of any of the rights conferred by Part III, and for other purposes.” The implications are that it is at least conceptually possible to hold a non-State body accountable for a substantive Part III violation – only not by invoking Part III via an Article 32 petition before the Supreme Court. The only way this is possible is by holding that while the content of the duties in both cases is identical (e.g., the duty to act fairly), their source is different (Article 14 and public law).

This, I would suggest, is sensible. Instead of applying Part III in a blanket manner to any “centre of power”, leading to strange and incongruous results (e.g., what connection could exist between a corporation in control of the nation’s water supply, and the right of minorities to preserve their culture?), the public-law approach allows us to calibrate the scope of an entity’s obligations to its function. For example, in Zee Telefilms, this would entail applying the substance of Article 19(1)(g) to the BCCI; and in Unnikrishnan, the substance of Article 14 to the admissions decisions of educational institutions. Ultimately, the logic boils down to this: entities that – as a structural (and not individual, or isolated) matter, have control over the effective exercise of individuals’ fundamental rights, ought to be accountable within their sphere of control.

If we examine Marsh vs Alabama (which the R.D. Shetty Court relied upon), we find something of this logic at work. In Marsh, one important reason why the Court held that First Amendment rights applied to the sidewalks and streets of a privately-owned company town, was the lack of a feasible exit option: people living in the company town couldn’t simply pack up and go elsewhere to engage in free speech and expression; thus, they would simply be denied any effective exercise of their constitutional rights, if the private owners’ property interests were allowed to trump the First Amendment. Or, in other words, the company-town was in a position where it effectively had  exclusive power and control over the constitutional rights of a significant number of people. Consequently, the First Amendment applied. I suggest that, in the last analysis, examining the extent to which such power and control exists in individual cases, and accordingly deciding the scope of the (public-law sourced) obligations of private entities (for which there is precedent, in the form of Unnikrishnan and Zee Telefilms), is both intellectually the most defensible approach, and pragmatically the most sensible one.

 

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What is the State – II: Two Approaches to Interpreting Article 12

Previously, we discussed some textual approaches to Article 12’s definition of “State”. Recall the key question: against which entities can claims of fundamental rights be raised? At one end of the spectrum is the State itself, and at the other end are private individuals performing private acts . There can be no quibble against the early decision of the Supreme Court in Shrimati Vidya Verma v. Shiv Narain Vermawhere the Court refused to find an Article 21 violation in the case of one individual being detained by another. Quoting Patanjali Shastri J.’s opinion in A.K. Gopalan, the Court held that “as a rule, constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law.

But there are – as we discussed previously – a host of problematic cases that lie between “State” and “individual”. Bodies created by a statute, bodies that whose management has government representatives, bodies under the administrative control of the government, bodies funded entirely by the government, bodies performing government-outsourced tasks, and so on. Which of these fall within Article 12, and why?

The first time the Court was called upon to seriously grapple with these issues was in the 1967 case of Rajasthan State Electricity Board v. Mohan LalThe case involved a promotion dispute between some workmen and the Rajasthan State Electricity Board. Articles 14 and 16 claims were raised, and consequently, the preliminary question that fell to be determined by the Court was whether the Board came within the purview of Part III, by virtue of being “State” (other authority) under Article 12.

The Rajasthan State Electricity Board was a corporate body that had been constituted under an Act (the Electricity Supply Act, 1948), for the purposes of supplying electricity within the State of Rajasthan. The Board argued that the phrase “other authority” must be read “ejusdem generis” – that is, when a law refers to a number of specific categories, and then ends with a general clause, that general clause must be understood only to contain those things which are part of the common genus to which the specific categories belong. To take a banal example, “BJP, Congress, AAP, TMC and other political parties” does not include the American Democratic Party, because clearly, what is being referred to is Indian political parties. According to the board, the common class running through Article 12 was bodies exercising governmental functions. The Electricity Board, on the other hand, was set up by a statute to carry out commercial activities. Thus – the Board argued – it could not be brought within the ambit of Article 12. It cited decisions from the High Courts of Madras, Mysore and Punjab to contend that Article 12 was limited to “a person or a group of persons who exercise the legislative or executive functions of a State or through whom or through the instrumentality of whom the State exercises its legislative or executive power. In those cases, State Universities had been found not to fall within the ambit of Article 12.

Rejecting this argument – and overturning the judgments of the High Courts – the Supreme Court declined to apply the principle of ejusdem generis, holding that there was no common “genus” running through Article 12. Instead, it turned to the dictionary for the meaning of the word “authority”:

“[Authority means] a public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue- producing public enterprise.” This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India.”

According to this language, the test appears to be two-pronged: either the body is created by a statute, or it is under the control of the government. Subsequently, however, the Court appears to run them together, holding that “the expression “other authorities” in Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law.” Or, in other words, they key test is a statutory connection between the government and the body in question (“control”, perhaps, is a function of creation by statute). The fact that the functions were commercial were irrelevant, since the State itself could clearly carry out trade and business. Thus, the Board – having been established by Statute – was found to come within the scope of Article 12.

Justice Shah concurred in the judgment, but differed on the reasoning. He approached the issue not from the standpoint of the meaning of “Authority”, but from the place of Article 12 in the Constitution – in particular, at the beginning of Part III. According to Justice Shah, Article 12 must be interpreted in the context of Part III, which guaranteed that fundamental individual rights would not be encroached upon. Therefore, what mattered was whether “the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms… authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression “State” as defined in Art. 12. Those authorities which are invested with sovereign power i.e., power to make rules or regulations and to administer or enforce them to the detriment of citizens and others fall within the definition of “State” in Art. 12.

Justice Shah thus placed special importance on “sovereign power”, which he appeared to understand as an ability to affect fundamental freedoms in a far-reaching. Therefore, his reasons for holding that the Board fell within Article 12 was not that it was created by statute, but that:

“The Board is an authority invested by statute with certain sovereign powers of the State. It has the power of promoting coordinated development, generation, supply and distribution of electricity and for that purpose to make, alter, amend and carry out schemes under Ch. V of the Electricity (Supply) Act, 1948, to engage in certain incidental undertakings; to organise and carry out power and hydraulic surveys; to conduct investigation for the improvement of the methods of transmission; to close down generating stations; to compulsorily purchase generating stations, undertakings, mains and transmission lines; to place wires, poles, brackets, appliances, apparatus, etc; to fix grid tariff; to issue directions for securing the maximum economy and efficiency in the operation of electricity undertakings, to make rules and regulations for carrying out the purposes of the Act; and to issue directions under certain provisions of the Act and to enforce compliance with those directions. The Board is also invested by statute with extensive powers of control over electricity undertakings. The power to make rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board.”

The majority and the concurrence represent two approaches to Article 12, which we may label the “legal approach” and the “functional approach”. The legal approach begins with a certain understanding of the paradigm case of the “State” (the government itself”, and assimilates to “State” those entities that seem to bear a close family resemblance to it. This translates into entities that the government itself creates, or seems to have near-complete control over. The “functional approach”, on the other hand, starts from the perspective of the individual, and the individual’s guaranteed rights that act as limits upon the sovereign power of the State. Bodies that can affect those rights in a manner similar to that of the State, are – under this view – assimilated to the State. The crucial difference between the two approaches is evident if we consider the fact that under Justice Shah’s approach, had the electricity distribution been entirely outsourced to a private party (say, Reliance), it too would have fallen within the ambit of Article 12.

Subsequently, however, in Sukhdev Singh v. Bhagat Ram, a majority of the Court read Rajasthan Electricity Board to have established the narrower proposition that Article 12 was attracted if the body had the power to issue directions whose disobedience could be punished by criminal law, or if it had the power to make, administer and enforce rules and regulations. That case involved three public corporations – the Oil and Natural Gas Corporation, the Life Insurance Corporation and the Industrial Finance Corporation. The majority’s narrow decision holding all three corporations to fall within the meaning of “State”, although clearly correct under both the majority and the concurrence opinions in Rajasthan Electricity Board does not, however, get us very far in a conceptual understanding of Article 12.

Such an analysis was provided by Justice Mathew, in a concurring opinion, although it is extremely difficult to determine a coherent ratio from that judgment. In the beginning, Justice Mathew seemed to adopt both the legal and the functional approach, merging them into one test, which he called “the agency and instrumentality” approach. Entering into a lengthy historical disquisition, he argued that as the role of the State changed from merely establishing law and order to providing for the public welfare, much of those welfare functions began to be performed through the means of corporations. The key observations comes in paragraph 90 of the judgment:

” The Constitution was framed on the theory that limitation should exist on the exercise of power by the State. The assumption was that the State alone was competent to wield power. But the essential problem of liberty and equality is one of freedom from arbitrary restriction and discrimination whenever and however imposed. The Constitution, therefore, should, wherever possible, be so construed as to apply to arbitrary application of power against individuals by centers of power. The emerging principle appears to be that a public corporation being a creation of the State is subject to the Constitutional limitation as the State itself. The pre-conditions of this are two, namely, that the corporation is created by State, and, the existence of power in the corporation to invade the Constitutional right of individual.”

The intriguing point about this paragraph is that it is based on a non-sequitur. If the Constitution ought to apply to wherever there is arbitrary application of power be centers of power, it does not follow – at all – a corporation must be State-created to fulfill those conditions (again, Reliance is a classic example). In other words, in substance, Justice Mathew put forward an argument for the functional approach, but in conclusion, he subordinated it entirely to the legal approach. In fact, he takes the majority and concurring opinions in Vidya Verma, and holds that the requirements laid out in both must be satisfied for Article 12 to be attracted!

Immediately afterwards, however, he moved away from that conclusion, noting that:

Generally speaking, large corporations have power and this power does not merely come from the statutes creating them. They acquire power because they produce goods or services upon which the community comes to rely.”

The rest of the opinion is devoted to a meandering analysis that seems to constantly shift back and forth between some variants of the legal and the functional approach, talking about financial aid, tax exemptions, control over management policies, public functions… and ultimately comes to rest somewhere midway, expressed as:

” The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public.”

“Agency or instrumentality” is not a self-interpreting term, however, and the true test, after the judgments in Rajasthan Electricity Board and Bhagat Ram, was still fuzzy. It would be up to later judgments to clarify it.

 

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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.

 

 

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