An examination of the scope of ‘state’ under article 12 is important because it essentially defines the limits of the most fundamental of rights i.e the right to claim fundamental rights. In essence it is a matter of circumscribing the boundaries of a citizen’s relationship with the state and calibrating these parameters so that the result is a system which is, at the same time, inclusive enough to ensure justice and coherent enough to avoid a conceptual morass. The idea of this paper is to see how judges have engaged with philosophical views of what the state should be rather than what the state is. Judges do not often engage in questions of political philosophy with regards to normative ideas of the state. They have mostly used a descriptive rather than a normative analysis of the state in arriving at conclusions. However, sometimes, there are parts of the judgment where they muse on broader questions. The paper tries to cull out those elements of the landmark judgments on article 12 and examine how complete our judicial ideas regarding the state are. In a modern welfare state there are a number of functions related to public utilities (like electricity and water supply) that have now been contracted out to private players. In such a scenario it would make sense for us to focus on this question of constitutional responsibilityvis-a vis private players as well. For this we have to have at least a working model of what this modern welfare state should ‘essentially’ be. I suggest that rather than the traditional understanding of public-private or sovereign-non-sovereign, we have to move towards a more nuanced understanding of the state i.e the idea of a ‘notional public sphere’.This takes off from the idea that there may be governmental activities that are purely private in nature and activities of private entities that have a governmental character.
Article 12 of the Indian Constitution defines ‘state’ for the explicit purpose of claiming fundamental rights. There is no problem with this as long as the citizen’s engagement is with what is definitively called ‘government’, be it central or state government. However, it is rarely the case that citizens engage directly with the highest echelons of government. The interaction is mostly through layers of state instrumentalities via departments, councils, schools, universities, administrative machinery, etc. In short there are a host of controversial entities that lie between the citizen and what can be legally called the ‘state’ for the purposes of article 12. It is obviously a question of interpretation, the final arbiter of which is the judiciary. The idea of the paper is to engage comprehensively with this interpretation that has come to us over the last sixty years and evaluate how complete judicial ideas regarding the state are. It is an attempt to see what the limits (self-imposed or otherwise) of this judicial idea of the definition of state are. An examination of the scope of ‘state’ under article 12 is important because it essentially defines the limits of the most fundamental of rights i.e. the right to claim fundamental rights. In essence; it is a matter of circumscribing the boundaries of a citizen’s relationship with the state and calibrating these parameters so that the result is a system which is, at the same time, inclusive enough to ensure justice and coherent enough to avoid a conceptual morass.
The idea of constitutional law (and indeed that of a constitution) is to ensure that individuals (both natural and juristic) are protected from arbitrary exercise of power. The traditional idea is to put a fence around the citizen so that there are certain minimum rights that the state cannot violate whimsically. However, with the advent of welfare states that idea has undergone a transformation. In a modern State, significant power is sometimes the province of entities which, at first glance at least, would not conform to traditional ideas of ‘state’. In a sense an aspect of state sovereignty (delegated or otherwise) is present in these entities. This sovereign power may be a creation of the state itself (as with statutory bodies) or it may reside in these entities (government and private) because of the goods and services they control; goods and services which are essential to modern living.It is not important how these entities come to have this power; the thing to note is that they can significantly alter legal relationships between themselves and citizens without the citizen’s consent. Thus, if we are true to the spirit of constitutional law, it should not matter who these entities are; as long as they have the power to affect fundamental rights of a citizen detrimentally they should have the same liability as the state. However, it is not simple to define what the limits of this obligation and how these limits change in different operational spheres.
The definition of State, quite naturally, is not just a legal question. At some level, it involves a value judgment about the purpose of the state and what the legitimate functions of a state are. These judgments are often, made in specific socio-economic contexts. How then are we to think about objective criteria for an ‘essential’ state? Is it even possible to do so? The Indian judiciary has mostly steered clear of value judgments regarding the state when there has been a question regarding Article 12. So, we find judgments from different eras which decide cases based on how the state happens to ‘look’ at that point in time. In essence; they have used a descriptive rather than a normative analysis of the state in arriving at conclusions. The consequence of course is that definition of ‘state’ changes with changes in (mostly) economic policy because that defines to what extent the state performs its welfare functions. Would this be an appropriate method for the future as the state receded more and more from goods and services which are necessary for modern living? It is important to think about this because ultimately it is only the ‘State’ under Article 12 against whom fundamental rights may be claimed. Hence these silences that emerge from a study of judicial decisions regarding article 12 need to be examined.
Article 12 includes the phrases ‘within the territory of India’ and ‘under the control of the government of India’. They are separated by an ‘or’ thus they are disjunctive. The idea is that under the control of would include entities which are directly under the government of India while within the territory of presupposes that there are entities in India which are not under the control of the government of India. What might these entities be? One argument is that state governments are entities which can be thus defined. But some say that this interpretation does not make sense because then it would be more reasonable to draft it as under the control of government of India or state governments.[i] The remaining option is to read it as covering entities which are not under government control i.e. private bodies which may be engaged in governmental functions.[ii] This then makes the provision and its interpretation a matter of political (and moral) philosophy which engages with how the government should look rather than just how it looks at the moment. We need to have a conceptual (and normative) baseline for what constitutes legitimate government functions.[iii]
The structure of the paper is quite simple. The first part looks at the Indian judiciary’s treatment of the matter, the second part deals with American jurisprudence on the matter, the third part discusses some ideas about the public sphere which come from political and legal philosophy and the paper concludes with the idea of a ‘notional public sphere’ which is essentially the beginning of an attempt to make a legally useful framework (with a normative underpinning) to decide on questions of liability as ‘state.’With reference to American jurisprudence I have limited myself to the pre- Civil Rights Act era because that is when the judges were the primary agents of intervention in what was traditionally the private sphere. The cases are not discussed in detail as such. The attempt has been to cull out those parts where the judges have discussed (or mused about) what the state ought to look like rather than limit ourselves to a traditional (and purely legal) discussion.
Rajasthan State Electricity Board v Mohan Lal[iv] (hereinafter Rajasthan State Electricity Board)– In Article 12 of the Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislature of the Union and the States, and local authorities. The contention from the electricity board was that the expression “other authorities”, if read ejusdem generis with the other terms, could not cover it (the board) which was a body corporate having a separate existence and had been constituted primarily for the purpose of carrying on commercial activities.[v]The argument of ejusdem generis was rejected because the court contended that there was no common thread running through the entire article and thus the term ‘other authorities’ could not take its meaning from just governmental functions; commercial activities of the state would be included.[vi]The rule of ejusdem generis means that specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus.[vii]
As far as the word ‘authority’ was concerned the court (speaking through Bhargava J.) ruled that the “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”.[viii] It did not matter whether it was for a commercial or a so-called purely governmental function. Bhargava J. said;
Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Art, 19(1)(g). In Part IV, the State has been given the same meaning as in Art. 12 and one of the Directive Principles lid down in Art. 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Art. 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Art. 298 to carry on any trade or business.[ix]
The idea that emerged was that the term would include those created by statute as well as those under the control of the government; regardless of the kind of function they were carrying out.It was a rather broad definition of the state; one based on recognizing the increasing role of a public corporation in modern states.
Shah J gave a concurring opinion but the reasoning was different. The board was a repository of sovereign power because it could impose important restrictions on basic fundamental freedoms. It could “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”.[x]That was the essence of what made it a stand-in for state rather than anything else.
Shah J. felt that it was necessary to consider article 12 in the context of article 13. Article 13 prohibits the State from making any legislative or executive direction which takes away or abridges the rights conferred by Part III and declares any law or executive direction in contravention of the injunction void to the extent of such contravention. Thus “it would be necessary to bear in mind not only whether against the authority,fundamental rights in terms absolute are intended to be enforced, but also whether itwas intended by the Constitution-makers that the authority was invested with thesovereign power to impose restrictions on very important and basic fundamentalfreedoms”.[xi]
In essence sovereign power was the power to make rules and regulations and enforce them to the detriment of citizens; with the power to punish for violation of the same. The reasoning is important because this is where we can trace the beginnings of the idea that private entities may be held liable for violation of fundamental rights because they are in a position to do so.
Sukhdev Singh v Bhagatram[xii](hereinafter Sukhdev v Bhagatram)–The court decided that only a body which had the power to issue directions the disobedience of which could be criminally punished or it had the power to make, administer and enforce rules and regulations. It affirmed Shah J.’s view from Rajasthan State Electricity Board that only those institutions which partake of the state’s sovereign power can be liable as ‘state’ under article 12. It was clear to the court at each stage “that the creation, composition of membership, the functions and powers, the financial powers, the audit of accounts, the returns, the capital, the borrowing powers, the dissolution of the Commission and acquisition of and for the purpose of the company and the powers of entry are all authority and agency of the Central Government”.[xiii]
The respondents’ contention was that (service) regulations do not have a statutory binding character, terms and conditions of employees as laid down in the regulations are not a matter of statutory obligations, regulations are binding not as law but as contract and thus regulations have no force of law.[xiv] The idea was to compare the government corporation with a normal company incorporated under the Companies Act and argue that they were essentially the same and hence there could no liability as ‘state’ for the ONGC, LIC or IFC. The court disagreed and said that 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.[xv] The court further distinguished it;
The regulations containing the terms and conditions of appointment are imperative. The administrative instruction is the entering into contract with a particular person but the form and content of the contract is prescriptive and statutory. The noticeable feature in that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees.[xvi]
The rules and regulations around service, even though contractual, were actually derived from statute and thus their true nature was not really contractual. This gives service rules and regulations the force of law and makes the institutions liable as ‘state’.
The more significant part of the judgment, as far as normative ideas about the state are concerned, actually comes from Mathew J.; even if it is obiter. He provided a slightly different analysis and calls it the agency and instrumentality approach. It matters not for him whether the corporation in question is statutory or has the power to make regulations, enforce them and punish for non-compliance. What matters is whether the corporation has the power to significantly change legal relationships with citizens who interact with it in any capacity. He notes the importance of applying the constitution to prevent arbitrary application of power against individuals by centers of power. The idea of a constitution is to protect against this arbitrary exercise of power. If that is indeed the case then the provenance of the entity exercising the arbitrary power should not matter.[xvii]He notes that “the essential problem of liberty and equality is one of freedom from arbitrary restriction and discrimination whenever and however imposed”.[xviii]He discusses Harold Laski’s idea that different powerful social groups need to be recognized as holding sovereignty in a way that only the state exclusively did in the past. He acknowledges this reality when speaks of the power of labour unions and industrial giants and argues that it “compels a reassessment of the relation between group power and the modern state on the hand and the freedom of the individual on the other”.[xix] He points out the blurring lines between private and public and notes;
The corporate organisations of business and labour have long ceased to be private phenomena. That they have a direct and decisive impact on the social, economic and political life of the nation is no longer a matter of argument. It is an undeniable fact of daily experience. The challenge to the contemporary lawyer is to translate the social transformation of these organisations from private associations to public organisms into legal terms. In attempting to do so, we have to recognize that both business and labour currently exercise vast powers. First, they have power over the millions of men and women whose lives they largely control as employees or as members. Second, they exercise power more indirectly, though not less powerfully, over the unorganized citizens whose lives they largely control through standardized terms of contract, through price policy, through the tempo of production and the terms and conditions of labour. Last, they exercise control over the organized community, represented by the organs of State, in a multitude of ways; direct lobby pressures, control over election and policies of the elected representatives of the peoples and far-reaching control over the mass media of communication.[xx]
However, Mathew does not pursue this argument to its logical conclusion (possibly because no private corporations were in question) and hold private corporations to the same standards of constitutional liability as the state. He simply uses the abovementioned line of reasoning to say that public corporations would indeed be a part of the definition of ‘state’. He does however note in passing that large corporations are not (always) powerful because they are state created but because they provide goods and services which the community comes to rely on.He concludes that “despite the fact that there are no provisions for issuing binding directionsto third parties the disobedience of which would entail penal consequence, thecorporations set up under statutes to carry on business of public importance or which isfundamental to the life of the people can be considered as ‘state’ within the meaning ofArticle 12”.[xxi] In support of his contention that the public corporation has indeed become the third arm of the government he quotes the Government of India resolution on industrial policydated April 6, 1948 which stated, among other things, that “management of state enterprisewill as a rule be through the medium of public corporation under the statutory control ofthe Central Government who will assume such powers as may be necessary to ensurethis.[xxii]
Mathew raised another important point with regard to the nature of the function carried out which the court had not (up until this point) discussed as significant for a finding of liability under article 12. An important public service combined with state financial aid would lead to a finding of liability. But there can be no definite answer as to the quantum of state aid provided.Mathew goes on to say that if the public function is such that it is most definitely something the government should be doing then even the question of financing is irrelevant. If the function does not fall within such a description, then mere additionof state money would not influence the conclusion.[xxiii] It was not necessary for him to conclude substantially about the functional aspect of the doctrine because all three organizations in question fulfilled the other criteria i.e they were statutory bodies with the power to make their own rules and enforce compliance with the same.
RD Shetty v International Airports Authority[xxiv] (hereinafter RD Shetty) – The government, even as a contractor, is bound by public law obligations like fairness, non-discrimination and non-arbitrariness. In a welfare state this is necessary to protect people from excesses of power.[xxv] The frequency with which the citizen comes in contact with the state increases with the increase in socio-economic functions. It is necessary to restrict the power of the government. Authority may act through the instrumentality of natural or juristic persons. How do we determine if the corporation was the agency or instrumentality of the state? The court gave its answer in terms of financial and administrative control of an unusual degree. It also discussed the nature of the function discharged by the authority in question i.e whether the function discharged was an important public function. If the functions were of public importance and closely related to government functions, it would be a relevant factor in determining liability. This is what set this case apart from the previous ones; the ratio clearly sets out the nature of the function being performed as one of the criteria to take into account when deciding the limits of constitutional liability.[xxvi] The court mentions that it has decided to follow Mathew J.’s broader approach as opposed to the narrower approach of the majority in Sukhdev v Bhagatram. The court understands the difficulty in setting out these functions exhaustively[xxvii] and in fact says that the distinction of government and private may no longer be valid. What is required instead is an understanding of government activities which may be private in nature and private activities which may be governmental in nature.[xxviii] It stands to reason that the court had to use some criteria to decide what an essential government function is and what is not. The idea is set out by the court in a descriptive fashion i.e they have looked at the then current socio-economic scenario come to a conclusion about the Airports Authority. Unlike Mathew J. who speaks of a slightly more normative understanding when he speaks of ‘centres of power’, the majority in this case stuck rather closely to the task at hand and declined to make any comments on the telos of constitutions.
Generally speaking the court should only discuss the matter at hand and flights of legal fantasy have traditionally been frowned upon. However, as Mathew himself says in Sukhdev v Bhagatram[xxix] there are times when a constitutional court is called upon to reflect (even if its obiter) on society in a manner which is not purely legal and which involves some political understanding and moral judgment. This was an opportunity for the court to do that; especially since the functional test in this judgment was inspired by a similar reflection on Mathew’s part in the previous celebrated case.[xxx]In the absence of such musing on part of the court, what happens when a state withdraws from function it used to perform?In the post-liberalisation era many of the functions traditionally performed by the state (or public corporations) have been outsourced to private corporations. How then are we engage with these questions without a discussion on the minimum normative criteria for what state functions are? Unless this exercise is normative there is a danger that this question (and the larger question of rights) may become appended to economic policy. Today’s description of the welfare state may be different from the one that we find twenty years down the line. The obvious answer to this is that rights and their substance are always in flux. While admitting that this is true, we have to note that the sole criteria for determining the extent of those rights cannot be economic policy. The right in question here is of course is the right to claim fundamental rights against entities analogous to the government.
The court in RD Shetty relied on Marsh v Alabama from the US Supreme Court. However the considerations, though similar, were slightly different there. It was a question of whether the first amendment right of free speech was applicable to the sidewalks of a company township. One of the criteria for deciding in favour of free speech (along with the public function test) was also the fact that there was no viable alternative for the people living in the township to demonstrate. The Indian Supreme Court seems to have not taken this particular aspect of the Marsh judgment into account. They do take into account the US Supreme Court’s opinion that when there is town and a municipality there is no question of not being liable even if it’s a private town because running a township is unquestionably a government function. They conclude that the public nature of the function impregnated with governmental character and entwined with some government function would render a corporation an instrumentality of the government. However, the exact nature of these terms or indeed the idea of sovereignty and contracting sovereignty are not discussed in any significant detail. The other interesting thing to note in this judgment is the lack of importance accorded to the statutory nature of the corporation.
Ajay Hasia v Khalid Mujib[xxxi] (hereinafter Ajay Hasia)- The approach of the court was the piercing the corporate veil approach that is employed in company law. The criteria devised in RD Shetty were laid out in a more explicit manner. The six parameters were share capital, financial assistance, state backed monopoly, deep and pervasive state control, functions of public importance, transferring functions to a corporation.[xxxii]Some have suggested that the function test was reduced in importance in this case by making it one of the six tests.[xxxiii] But a plain reading the relevant passage from the RD Shetty case does not make it seem as if the court in that case had accorded the function test any special importance as such. It was simply one of the five criteria that the court seemed to set out to deal with the issue. It is true that the first three had to do mostly with the management and control (whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status) and only the last criteria had to do with the functional aspect. But the way they set the criteria out in RD Shetty is pretty much the same as the way they set these out here. It was held that the idea behind article 12 was to not allow the government to evade its responsibility by setting up corporations which were (ostensibly) independent of it. Hence the analysis had to proceed so as to prevent this fraud from occurring. Hence the reason for the overwhelming importance attached to the control test and the relegation of the function test. The court in its analysis of facts seems to have paid no attention to the nature of the function performed by the body in question i.e higher education.As discussed earlier the ramifications of this lack of deliberation was to have an idea of the state shorn of value judgments of what the state should look like.
Pradeep Biswas v Indian Institute of Chemical Biology[xxxiv]–The court read the history of article 12 slightly differently. The distinction was not made out in terms of a broad and narrow approach. Essentially the narrow approach is one where the statutory status of the entity in question is important and the broad approach is when control is the most important consideration, regardless of statutory status. The functional criterion is not spoken of; rather it is subsumed within the control test. The real (and only) question to be determined is whether the body is financially, functionally and administratively dominated by the government. If control is merely regulatory, then it would not render the body ‘state’ under article 12.
Zee Telefilms v Union of India[xxxv](hereinafter the BCCI Case)–The BCCI does not satisfy five of the six criteria laid out above in RD Shetty. Thus the court held that even though there was an element of public duty involved in the case because BCCI had a monopoly on the game of cricket in India, by itself this could not offset the absence of the other factors. The fact that the BCCI was a ‘centre of power’ which could alter legal relationships to the extent of infringing on fundamental rights of the petitioner (article 19(1)(g) i.e the freedom to carry on a trade, business or profession, in this case) was not something that the court took into account. The argument advanced was that the court state had chosen to leave this particular function to the BCCI and had never showed any intention of interfering with this monopoly. Hence it was not tenable to hold that the BCCI was ‘state’ under article 12. However there was no discussion about the fact that the BCCI had complete monopoly over what is essentially a primary cultural good i.e cricket.
This raises an important question already highlighted in the previous cases; what if the state withdraws from other functions too. In fact the court takes not of it and holds that Rajasthan Electricity and Sukhdev were decided in different socio-economic circumstances. Now the state is concentrating on governance rather than business. As argued earlier it appends the right to claim fundamental rights to economic policy, which seems rather strange to say the least. The court also takes note of the fact that the BCCI does discharge a public duty in the sense that it selects the team which represents the country and for that there are certain obligations which it will incur.[xxxvi]These obligations cannot be wished away but there cannot be finding of liability under article 12 as ‘state’. Instead there is always the option of article 226 which deals with fundamental rights (claimed against the state) as well as other legal rights (claimed against all entities including state).
United States of America
Gompers v US[xxxvii] – This was one of the first significant cases involving the state action doctrine in the USA. The Texas legislature enabled the Democratic Party to exclude blacks from voting in its primary elections; each of these measures was in turn struck down by the Supreme Court as state action in violation of the non-discrimination principle. Texas repealed these laws, leaving the matter to the discretion of the party convention, which renewed the racial exclusion. For a time the party appeared to have succeeded: the Court upheld the exclusion as the action of a private group entitled to select its own members. Political parties are indeed hybrids, each group in principle espousing distinctive ideas and programs, yet each an integral part of an electoral process that is plainly official and governmental. The Court later repented of its permissive decision (in Smith v Allright[xxxviii]), overruled it, and held that in the electoral process a political party, like the state itself, must conform to non-discrimination requirements of the US Constitution. There is an important question that needs to be flagged here; does this categorization of state action in one sphere attach itself to others as well? For example, does the right to vote in the primary also entail that one gets a chance to speak at the convention?
Marsh v Alabama[xxxix] – We have already discussed this case briefly. Essentially the Supreme Court held that the corporation in question was akin to a surrogate municipal council due to the fact that there was no viable alternative for residents to exercise their free speech rights. Thus its action in preventing Jehovah’s Witness members from distributing pamphlets violated constitutional provisions. We see that eventually the scope of this protection, when it came to picketing, was whittled down using the spheres of influence argument. It was first limited to labour disputes with shopowners and eventually in Hudgens v NLRB shopping centres were completely removed from the ambit of state action. This is an interesting practical demonstration of the problem of limiting the application of law which was flagged earlier.
Shelly v Kraemer[xl]–The matter at hand was a property covenant specifying that the land in question could be sold only to whites. The land was sold in contravention of this covenant and the state courts nullified the sale by giving effect to the covenant. Unlike the previous case, the Supreme Court steered clear of a functional test and simply held that the state court, by giving effect to a restrictive covenant, had violated the constitution and it was certainly an arm of the state and hence there was no difficulty in calling this state action. It left unanswered the question of how to deal with restrictive covenants if the courts or general administration does not get involved and it is just a matter between private parties. In short there was an easy way out and the court took it.
Wesley Newcomb Hohfeld wrote an important legal essay in 1913 where he used the Aristotlean square to analyse legal rights. He claimed that our use of the word ‘right’ was too liberal and this conceptual incoherence stopped us from developing a proper theory of rights.[xli] He gives the example of the word ‘property’ and discusses the various ways lawyers and laymen use it to connote different things.[xlii] According to him the issue arises partly from the fact that their ‘use in connection with legal relations is, strictly speaking, figurative or fiction’.[xliii] Words like ‘power’, ‘liberty’, ‘claim’, etc have been borrowed by law from everyday usage and have been changed, subtly or otherwise, for use in the legal field. Hence it becomes important to see what meaning they occupy in the legal world.
He demonstrates it as a few jural correlatives; 1) (claim)right-duty, 2) privilege-no-right, 3) power-liability and 4) immunity-disability. When the relationship is that of claim right and duty, it is imperative that everybody other than the one who claims the right assist in the fulfillment of this right like it is their duty to do so. If however, I have a privilege then a no-right can be claimed against me. If an institution, such as the government, has power over me then I am liable under that power. It is only if I have a special immunity that I escape from this power. In the legal world these distinctions are important because they establish burden of proof. In terms of ‘state’-citizen relationships this is important because the nature of the right should play an important role in deciding whether constitutional liability is to be imposed on an entity or not.It is interesting to surmise if the Indian Supreme Court would have looked at the BCCI case differently and made an explicit pronouncement on the nature of the good that the BCCI controlled if a cricket fan had simply filed a case because his right to participate in an important cultural phenomenon was being affected. This is where it becomes important to look at it in the Hohfeldian sense and decide whether, given the current cultural expectations of the citizenry, it is a right or a privilege to watch cricket in India.
Habermas says that “only when the exercise of political control is effectively subordinated to the democratic demand that information be accessible to the public, does the political public sphere win an institutionalized influence over the government through the instrument of law-making bodies”.[xliv] The separation of the prince’s household from what would come to be known as the ‘public sphere’ “was visibly manifested in the separation of the public budget from the private household expenses of a ruler”. In her book Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere; Janet McLean says that this distinction is still a problematic one in Britain because of the nature of a constitutional monarchy. It is claimed that the ‘Crown’ has been a poor substitute for the ‘state’ mostly because with an actual monarch it becomes very difficult to separate the personal from the political.[xlv] The legal implications are clearly brought out in cases involving government servants where one of the questions is whether they are acting in personal or professional capacity. Hence it is not as if courts don’t decide on such matters on a regular basis in administrative law. What makes article 12 different is the generic pronouncement that has to come regarding the nature of the state. This is possibly also why courts have been reluctant to engage in a more abstract debate on the essentials of the state.
Gradually in early modern Europe, institutionsof public authority, like the bureaucracy, the military and the courts, asserted their independence fromthe privatized sphere of the princely court.[xlvi] What essentially happened as a result of this was that the mediating authorities changed and the location of negotiations about rights and liabilities changed. Describing this Habermas says;
Conflicts hitherto restricted to the private sphere now intrude into the public sphere. Group needs which can expect no satisfaction from a self-regulating market now tend towards a regulation by the state. The public sphere, which must now mediate these demands, becomes a field for the competition of interests, competitions which assume the form of violent conflict. Laws which obviously have come about under the “pressure of the’ street” can scarcely still be understood as arising from the consensus of private individuals engaged in public discussion. They correspond in a more or less unconcealed manner to the compromise of conflicting private interests.[xlvii]
Historically this is one of the ways of tracing how these structural changes lead to demands from hitherto unrepresented sections of society (mostly the third estate) for more rights and less onerous duties. If we look at the above passage carefully we can see an echo of Mathew J.’s ideas about the transformation of the public sphere and the how the private now spills over to the public because there are organized centres of power which partake in the power of a sovereign state because they control labour or capital.
It is important to understand the roots of ‘public sphere’ and understand that sometimes what seems to play out in the public sphere is a question of private interest. The US courts’ dealings with racial discrimination in privately owned housing blocks are an example of this. When we speak of a right to dispose of property in accordance with one’s wishes, as far as possible, it may be advisable to take into account the historical and cultural factors responsible for such acquisition. Essentially this is, more generally, an argument about privilege; another manifestation of which may be seen in the affirmative action/reservation debate. Ideas about the state have been contestations of ideologies and a clash of world-views. These ideas are at some level value judgments. A more comprehensive judicial engagement with the relevant literature will certainly lead to judges being in a better position to make these judgments.
Conclusion: A ‘notional public sphere’
How then do we translate ideas of how the state ought to look into a useful legal framework? Should judges be making normative judgments about what the public sphere should look like or is this a question best left to the political process? The basic structure doctrine is in essence an idea of what the state ought to look like in the arena of civil and political rights. Why then can we not have a similar judgment about economic and social rights? The answer lies in the deceptively simple nature of civil and political rights because they are, superficially at least, ‘costless’ and hence raise no questions of economic allocation. The reluctance stems from our traditional understanding of the civil-political and economic-social as watertight compartments. Of course, the judicial activism of the past thirty years has challenged this understanding with regards to specific fundamental rights. Why then can we not engage in the larger project of imagining the state in a certain way? How are we to do it in a way that ensures that judges do not indulge in flights of fantasy but remain committed to a fair and just society?
Perhaps, the answer lies in Mathew J.’s idea that instead of government and private functions we should look at government activities which are private and private activities which are governmental in nature. Every time a question arises under article 12 our endeavour should be to check if the entity (as well as the transaction) fulfils the criteria of what might be called the notional public sphere. These criteria could include the nature of the entity (is it a salon or a drugstore), the nature of the transaction (the right of a salon owner to refuse service is not on the same pedestal as the right of a drug store owner to refuse service), the transactions cost which arise on refusal/denial/lacunae in service (which includes how easily replicable this service is in the immediate neighbourhood i.e. if there are other medicine stores in the immediate vicinity which are accessible conveniently), the relative bargaining positions of the parties involved (which lets us know if a finding of liability under article 12 is the quickest and most convenient remedy) and of course the immediate socio-economic context and the expectations of the citizenry. There is no fixed answer to the question posed by article 12. However, idea of a notional public sphere might help us move away from a false dichotomy of government and private and lets us concentrate on the real purpose of constitutional law i.e the protection of individual liberty against the exercise of arbitrary and untrammelled power, and in the process might give us a more holistic and just concept of the state.
[i] Gautam Bhatia, What is the “State”? – I: Article 12 and Constitutional Obligations, April 26th, 2014 at https://indconlawphil.wordpress.com/2014/04/26/what-is-the-state-i-article-12-and-constitutional-obligations/ (last viewed on 5/12/16)
[iv]AIR 1967 SC 1857
[v]Para 3 Rajasthan State Electricity Board Case
[vi] Ibid Para 5
[vii] Ibid Para 4
[viii] Ibid Para 6
[ix] Ibid Para 7
[x] Ibid Para 10, Shah J; “…The Board is also invested bystatute with extensive powers of control over electricity undertakings. The power tomake rules and regulations and to administer the Act is in substance the sovereign power of the State delegated to the Board.”
[xi] Ibid Para 12, Shah J.
[xii]AIR 1975 SC 1331
[xiii] Ibid Para 44
[xiv] Ibid Para 10
[xv] Ibid Para 25
[xvi] Ibid Para 23
[xvii] Ibid Para 90, Mathew J.
[xviii] Ibid Para 90, Mathew J.
[xix] Ibid Para 91, Mathew J.
[xxi] Ibid Para 78, Mathew J.
[xxii] Ibid Para 89, Mathew J.
[xxiii] Ibid Para 98, Mathew J.
[xxiv]AIR 1979 SC 1628
[xxv] Gautam Bhatia, What is the State – III: Adopting the “Instrumentality or Agency” Test, 15th August, 2014 at https://indconlawphil.wordpress.com/2014/08/15/what-is-the-state-iii-adopting-the-instrumentality-or-agency-test/ (last viewed on 5/12/16)
[xxvi]Para 16 RD Shetty
[xxvii] Ibid Para 19
[xxviii] Ibid Para 18
[xxix]Para 79 Sukhdev v Bhagatram, Mathew J. : One of the greatest sources of our strength in Constitutional law is that we adjudgeonly concrete cases and do not pronounce principles in the abstract. But there comes amoment when the process of empiric adjudication calls for more rational and realisticdisposition than that the immediate case is not different from preceding cases.
[xxx]Para 28 RD Shetty
[xxxi]AIR 1981 SC 487
[xxxii] Ibid Para 9
[xxxiii] Gautam Bhatia, What is the State – IV: Agency/Instrumentality as a Function of State Control, 17th August, 2014 at https://indconlawphil.wordpress.com/2014/08/17/what-is-the-state-iv-agencyinstrumentality-as-a-function-of-state-control/ (last viewed on 5/12/16)
[xxxiv] (2002)5 SCC 111
[xxxv]AIR 2005 SC 2677
[xxxvi]Para 31 BCCI Case
[xxxvii]233 U.S. 604 (1914)
[xxxviii]321 U.S. 649 (1944)
[xxxix]326 U.S. 501 (1946)
[xl] 334 U.S. 1 (1948)
[xli]Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, The Yale Law Journal, Vol. 23, No. 1,November 1913, pp. 16-59 ; “the term “rights” tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense…” at 30
[xlii]Ibid at 21-22
[xliii]Ibid at 24
[xliv]Jürgen Habermas, Sara Lennox, Frank Lennox, The Public Sphere: An Encyclopedia Article, New German Critique, No. 3 (Autumn, 1974), pp. 49-55. See also Jurgen Habermas, The Structural Transformation of the Public Sphere, Cambridge, Mass., 1989
[xlv] Cambridge, UK, 2015 at 133 discussing Loughlin, The State, the Crown and the Law and Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology.
[xlvi] Habermas et al supra note 14 at 51
[xlvii] Ibid 54