INTRODUCTION
Article 12 of the Indian Constitution delineates the “State” as encompassing the Government and Parliament of India, as well as the Government and Legislature of each State, alongside local and other authorities within the nation’s territory or under the control of the Indian government.
It is imperative to understand the scope of the term “State” as the fundamental rights, as enshrined in Part III of the Indian Constitution, protect individuals only from actions taken by the State. The State is prohibited from violating these fundamental rights or using laws or legal mechanisms to curtail them. However, the expansion of private organizations and businesses through privatization of several industries, necessitates determining whether they fall under the definition of “State” so as to enable enforcement of fundamental rights against them.
If individuals believe that their fundamental rights have been violated, they can choose to lodge a complaint with either the Supreme Court or the High Court, in accordance with Article 32 and Article 226 of the Indian Constitution, respectively. It is crucial to understand that the Constitution of India is a flexible text, and the courts have the authority to interpret it in a manner that aligns with the prevailing circumstances and the people’s needs and aspirations. The inclusion of the term “other authorities” in Article 12 enables the judicial examination of actions performed by authorities established under statutes that carry out functions of the State.
INTERPRETATION OF “STATE” IN LIGHT OF THE CURRENT CIRCUMSTANCES
With the rise of modernization and privatization in Indian society, there was a need to broaden the definition of the term “State” to hold private bodies accountable for their actions. In the case of Anandi Mukta And Ors. v. V.R. Rudani And Ors., the interpretation of the phrase “any person or authority” within Article 226 of the Constitution was clarified by the Supreme Court as not being restricted solely to statutory bodies and government instrumentalities. Instead, it extends to encompass any individual or entity engaged in fulfilling a public obligation. The specific organizational structure is of lesser importance;
what holds significance is the kind of responsibility entrusted to it.
A “public duty” indicates a duty that influences the legal rights and liabilities of the public or a defined class of citizens. A duty benefitting only specific group of individuals does not classify as a public duty. “Public function” on the other hand entails a role historically exclusive to governmental authorities. An individual from the private sector is regarded as executing a public function when they undertake a duty that has traditionally been reserved for government entities.
In the case of Zee Telefilms Ltd. and Ors. v. Union of India (UOI) and Ors., the Supreme Court outlined entities that would fall under the scope of “other authorities” mentioned in Article 12 of the Constitution. These include corporations and societies created by the State for trading activities, bodies engaged in research and development related to governmental functions, and private bodies performing a public duty or carrying out activities akin to government functions.
In the case of Janet Jeyapaul v. SRM University and Ors., it was determined that SRM University was performing a “public function” through its educational activities. Furthermore, in Embassy Property Developments Pvt. Ltd. v. State of Karnataka and Ors., the court recognized that the jurisdiction granted by Article 226 extends to private individuals as long as the obligations carried out by them are of a public nature. The remedies provided under Article 226 are considered public law remedies, distinct from those available under private law. In Roychan Abraham v. State of U.P. and Ors., the court held that an entity financially, functionally, and administratively controlled or dominated by the government would qualify as a “State” under Article 12.
THE WAY FORWARD
The High Court possesses extensive power and authority to issue writs. Its jurisdiction includes the application of fundamental rights against the “State”, and non-fundamental rights against “any person or authority” or “for any other cause”. There are no limitations on the High Court’s ability to take legal action against the “State” under Article 226. On the other hand, Article 32 grants the Supreme Court the power to issue writs only against breaches of fundamental rights and is considered the cornerstone of the democratic structure of the Constitution.
The Supreme Court and the High Court possess separate powers to issue writs. While the Supreme Court has the authority to dismiss a writ petition filed under Article 32 if the party or authority in question is not considered a “State”, the High Court retains the ability to intervene and issue a writ under Article 226 when appropriate circumstances arise.
In interpreting Article 226, the term “authority” should be given a broad interpretation. It should not be limited to statutory authorities and State instrumentalities but can include any entity or person performing a public duty. If any private body is performing a public duty or owing a positive obligation, regardless of whether this public duty was mandated by a statute or otherwise, then it should be covered under the ambit of “State”. Thus, private entities performing public duties shall be subjected to constitutional limitations and made accountable for judicial review. The crucial determinant is the type of responsibility/duty imposed upon the entity, and when an affirmative duty is present, the issuance of a mandamus writ must not be refused.
Article 226 allows for the issuance of a writ of mandamus even in the case of a private entity performing a public function. The State’s functions have expanded, and various agencies have been established to carry out governmental functions. While many corporations and companies created by the government may fall under the scope of Article 12, there are also private bodies that discharge public functions. Distinguishing between public and private functions becomes challenging when a purely private authority carries them out.
In simple terms, public function is a function serving the common welfare of the general populace. Public functions encompass activities that seek to attain communal advantages and gains for either the general public or a particular segment thereof. The designation of such functions hinges on whether the entity is recognized by the public as possessing the authority to carry out these tasks. Additionally, these functions are akin to or closely associated with those that the State can carry out in its sovereign capacity. Public functions can involve providing public goods (health care, education, etc.), social services, or adjudicatory services. It is essential for the courts to recognize that non-governmental bodies are also capable of
abusing their powers. A function of a public nature includes tasks mandated or encouraged to be performed at public expense, regardless of the legal status of the performer or the contractual arrangement involved.
The criteria to determine whether a function qualifies as a “public function” are also outlined in the United Kingdom’s Human Rights Act, 1998. Factors such as the state’s responsibility, the public interest, nature of statutory power or duty, state control, public funding, potential use of coercive powers, and degree of infringement of basic rights are considered.
To be subject to the High Court’s jurisdiction under Article 226, a private entity must have a public law component, and agreements made solely in the interest of private parties cannot be upheld. An individual can file a writ petition under Article 226 if their fundamental or legal rights are infringed by the State, its agents, a private individual or entity engaged in a public duty, or a public official. However, if the private person or entity involved does not have any public role, the aggrieved party cannot seek a remedy under Article 226. Likewise, if the alleged act was committed by a private individual or entity beyond the scope of performing a governmental duty or function, a remedy under Article 226 may not be accessible.
CONCLUSION
Traditional democracy faces the challenge of unbridled discretion due to the discretionary power exercised by private organizations in carrying out their mandates. Modern society can be described as a “mixed administration” system where regulatory responsibilities are shared between private organizations and the government. Private bodies, including individuals, firms, and various institutions, play a significant role in governance that is often overlooked. Recognizing governance as a shared enterprise allows us to differentiate accountability mechanisms from the public or private nature of the decision-maker, providing a more balanced perspective on private parties. Even within situations that appear to be voluntary and self-regulated, private decision-makers can face responsibility through internal procedural regulations, market influences, informal standards of adherence, supervision by external parties, and the possibility of government intervention.
However, it is imperative to note that private bodies generally enjoy a degree of insulation from legislative, executive, and judicial oversight. This issue becomes especially significant in an era marked by privatization and the widespread outsourcing of government functions. In most cases, public-private partnerships are established to furnish social services or public facilities with the aim of enhancing community well-being. As private actors increasingly assume roles traditionally held by the public sector, they do so without the typical scrutiny associated with the exercise of public power. This raises concerns about accountability of those private bodies. Furthermore, private actors performing public functions may jeopardize other fundamental principles of public law such as transparency, fairness, participation, consistency, rationality, impartiality, and accessibility of judicial review. To address these risks, the oversight mechanisms and procedural controls applied to public bodies must be extended to private bodies performing public functions, essentially by treating them as if they were part of the public sphere.
Thus, when a private entity carries out governmental tasks, the injured party has a recourse not just according to regular legal procedures but also in accordance with the Constitution by means of a writ petition under Article 226. Nonetheless, it is of vital importance to uphold the differentiation between a State enterprise and a non-State enterprise in a democratic setup. The judicial system must not be exploited to obscure this demarcation unless extraordinary conditions necessitate such action.
Initially, the Supreme Court of India interpreted the term “State” restrictively, applying the principle of “ejusdem generis” to include only authorities performing governmental or sovereign functions. However, the Court later adopted a more liberal interpretation, recognizing that there should be no restrictions on the interpretation of the term. The doctrine of public function aims to assign liability in line with the devolution of power and authority to private players due to economic liberalization.
In conclusion, there is a dual system where some bodies are under the government’s command as extensions of the state, while others perform state/public functions and can be held liable under Article 32 or 226 based on the principle of direct horizontality, under which the non-state private actors are also covered by fundamental rights obligations and the Constitution is used as the benchmark to question the private actions of that non-state private bodies.
The author is a student of Dr. B.R. Ambedkar National Law University, Sonepat (DBRANLU)
Image Credits: Youth Incorporated Magazine
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