THE PRIVATE SHADES OF STATEHOOD
PRAVEEN DALAL (PERRY)
12 Mar 2005 07:08 GMT
5,JAGRITI APARTMENTS, SAINIK VIHAR, RANI BAGH, DELHI-110034, INDIA.
The aim of this article is to analyse the propriety and desirability of expanding the scope of the traditional concept of statehood to private individuals in the changed environment of globalisation, privatisation and decentralization.
The human beings cannot exist without their existence being recognised and accepted. That is why we all possess certain basic "Human Rights", "Fundamental Rights" and "Constitutional Rights". These rights safeguard, if not absolutely than partially, the interests that are natural with the existence of human beings. If these rights are violated, that violates and interferes with the very right to exist of the human beings. Thus, these rights have been given paramount importance and are recognised as sacrosanct and inviolable. These rights are safeguarding the interest of public at large; hence they deserve to be interpreted liberally and purposefully in favour of the right holders. The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens' rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime (1). The court in interpreting the Constitution enjoys a freedom, which is not available in interpreting a statute (2). The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that fundamental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court (3). Thus, horizons of constitutional law are expanding. Further, It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law (4). Thus, we cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind (5).
II. Selection of appropriate constitutional theory
The people concerned about constitutional law confront a large number of competiting constitutional theories, which offer conflicting accounts of how judges should interpret and apply the constitution. Firstly, some consider that the choice of a constitutional theory must be based at least partly on considerations that are external to the constitutional text. The written constitution by itself cannot determine the correctness of any particular theory of constitutional interpretation. Selection must reflect a judgment about which theory would yield the best outcomes, as measured relevant criteria. Secondly, there is a surprising degree of implicit agreement among constitutional theorists about the criteria that a sound constitutional theory ought to satisfy. The theorist both widely and correctly recognise that the choice among the theories should be based on that theory which will best advance share goals by:
(i) satisfying the requirements of rule of law,
(ii) preserving fair opportunity for majority rule under a scheme of political democracy, and
(iii) promoting substantive justice by protecting a morally and politically acceptable set of individual rights.
Thirdly, the theories should be judged by their likely fruits. To determine which theory would best promote ultimate goals, it is crucial to access what kinds of judicial decisions would likely be made if a particular theory were adopted. If this conclusion is accepted, the attraction of substantive theories becomes clear, but the allure of formal theories grows puzzling. The anticipated pattern of decisions depends not only a theory's explicit tenets, but also on who our judges and justices are likely to be, and what values and perspectives they will bring to their decision-making. A constitutional theory should be chosen with this consideration in mind. Fourthly, the question of constitutional theory are not optionals; they cannot be put off as merely academic pre-occupations, which have no necessary role in the work of judges and lawyers. Every constitutional argument reflects methodological assumptions. A judge who relies on identifiable assumptions in one case is properly subject to criticism if her arguments in another case reflect different, inconsistent assumptions. It would be naïve and misguided to choose a constitutional theory without regard to whether it would likely, on balance, to yield "good results" (6). Thus, a theory that advances the public interest and is conducive for overall development of human beings should be adopted in its widest amplitude. The Supreme Court of India, in majority of cases, seems to have adoptive a purposive and updating approach, which has resulted in the creation of new Fundamental Rights and a much stronger protection of the existing ones. The doctrines of " basic structure", "absolute liability", etc are some of the examples of a more constructive, purposive and updating interpretation of the Constitution of India.
III. Need for the declaration
The need for the declaration of private persons (7) as State is immediate and compulsive in nature. This has arisen due to globalisation, privatisation and decentralization. The traditional "welfare state functions" have now slipped into the hands of private individuals due to this phenomenon. The crucial "public interest" has also been transferred to these private persons as far as the transferred business is concerned. This is, however, not the end of the story. The duties and limitations by which the traditional State was bound are also, with necessary modifications, passed to the private persons. These duties and limitations, though not as stringent and rigorous as were meant for traditional State, are still in existence and are required to be followed by the "successors" of those welfare state functions. It is no doubt true that private individuals cannot be expected to play the role of "parents or guardians" of the nation, but certain minimum fair and reasonable obligations, commensurate with the basic Human Rights, Fundamental Rights and Constitutional Rights, have to be met reasonably. The welfare state requirements mandate that if the power and essential functions of a state are decentralized or delegated to private persons, they retain their mandates of welfare requirements, though in a modified form. For instance, if a public company, performing crucial public functions, is pravitised, then the successors are required to act justly, fairly and reasonably. An arbitrary, unreasonable or oppressive act of a "privatized public company" should be equally vulnerable to the challenges of unconstitutionality. Thus, the changed socio-economic conditions of India require a different outlook and this makes the declaration inevitable and essential. In this background we will consider the efficacy of declaring private persons as "State" within the meaning of Article 12 of the Constitution of India.
IV. Constitutional justifications
The Constitution of India contains many express provisions, which shows that private persons are state within the meaning of Article 12. The following provisions of the Constitution, which requires a different "contextual application"(8) of Article 12, are relevant in this regard:
(1) Preamble- Most of the objectives specified by the Preamble have acquired a status of basic structure, which cannot be destroyed even by exercising the "constituent powers" of amendment U/A 368 of the Constitution. The Preamble may be invoked to determine the ambit Fundamental Rights and Directive Principles of State Policy. The Preamble, among other things, secures to its citizens:
(a) Social, economic and political justice,
(b) Liberty of thoughts, expression, belief, faith and worship,
(c) Equality of status and opportunity; and to promote among them all,
(d) Fraternity assuring the dignity of the individuals and the unity and integrity of the nation.
The concept of social, economic and political justice is incomplete if we ignore the availability of the protection of Fundamental Rights against private persons. It is improper to presume that only the State can violate the Fundamental Rights. There may be instances where private persons might violate the Fundamental Rights. The doors of justice should not be shunned merely because of a wrongly assumed hyper-technical plea that private individuals are not State within the meaning of Article 12. The concept of liberty of thought, expression, belief, faith and worship is equally susceptible to violations by private persons. For instance, liberty of thought or expression may be unreasonably curbed by not allowing even legitimate trade union movements like strike, demand of bonus, etc. The concept of equality of status and opportunity may be violated by not paying equal pay for equal work or by not paying the minimum or fair wages. Providing inhuman and discriminatory working conditions for them instead of the humane and statutorily prescribed conditions may violate the dignity of the individuals. It must be appreciated that nothing is more dangerous for the unity and integrity of the nation than a hungry and unsatisfied labour force, which has gone through all sorts of discriminations.
If a private person violates these benign prembulary mandates, then merely because he/it is a private person does not absolve him/it of the mandates of the Constitution of India. The constitution is not to be construed as a mere law but as machinery by which laws are made. A constitution is a living and organic thing which of all instruments has the greatest claim to be construed broadly and liberally (9). Further, the Preamble is recognising the needs of humanity and the protection of basic Human Rights. That is why it has been declared to be a basic feature of the constitution that cannot be taken away by the executive, legislature or/and the judiciary. If this is the position then it is very difficult to appreciate how private persons can play with the prembulary notions. This cannot be the intention of the founding fathers of the constitution and that is why the protection of certain Articles in Part III is available against private persons as well. Even otherwise, assuming that there is a contrary provision in the constitution, for instance Article 12, which provides that private persons are not state, the Preamble and its mandates being the basic feature will override the same. This takes us to the evaluation of Article 12 for clarifying the position.
(2) Article 12- Article 12 of the Constitution of India provides that, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of the Government of India. A careful analysis of the definition of State would reveal that there are two safeguards that have been adopted by the founding fathers of the constitution to make it "organic and flexible". Firstly, the expression "unless the context otherwise requires" mandates that if the contemporary moral, social and economical notions and ideologies require a different outlook, then the definition of State has to be interpreted accordingly. Secondly, the expression "includes" denotes that an inclusive and not exhaustive definition of State has been provided. This means that the definition of State may include many more categories, which are not expressly mentioned in Article 12. The founding fathers of the Constitution were aware of the possible difficulties and the requirements that the nation would face due to changed socio economic conditions as well as the changed societal values and notions. Thus, the words of Article 12 are couched in an organic and flexible manner, so that the development and progress of India may not hamper. It must be noted that the historical context in which the doctrine of "State action" evolved in the United States is irrelevant for India. But the principle behind the doctrine that State aid, control, and regulation so impregnating a "private activity" as to give it the colour of state action is of interest to us to the limited extent to which it can be Indianised and harmoniously blended with our Constitutional jurisprudence (10). Thus, even a private body may be a "State" within the meaning of Article 12 (11). Further, a private body, which is an agency of the State, is a State (12). Thus, it is clear that there is nothing in Article 12, which prohibits the application of the provisions of that Article to private persons.
(3) Article 13- Article 13 of the Constitution provides that laws, whether pre-constitutional or post constitutional, inconsistent with or in derogation of the Fundamental rights shall be void to the extent of inconsistency or contravention. The main object of Article 13 is to secure the paramountcy of the Constitution in regard to Fundamental Rights. Thus, it should be given a purposive and meaningful interpretation and a hyper-technical interpretation ignoring the paramountcy of the Constitution in regard to Fundamental Rights should be avoided. A closer and detailed perusal of Article 13 would reveal that it is covering the "law making" organs of the Constitution. The executive, legislature and the judiciary can make laws while acting within their own spheres, though traditionally and constitutionally legislature is the main law-making agency. The judiciary can also make law, though in a limited sense only. Thus, if the judgment of a court is based on wrong legal parameters, then it can be said to be violative of Article 13 if it has the effect of violating any Fundamental Right(s). In such an eventuality, the Supreme Court can entertain a "curative petition" to remedy the wrong which has inadvertently perpetuated by it (13). This fantastic judicial innovation is based on the premises that no person should suffer due to the mistake of the court. Similarly, an order passed by the court without jurisdiction is a nullity and any action taken pursuant thereto would also be nullity. A party cannot be made to suffer adversely either directly or indirectly by reason of an order passed by any court of law, which is not binding, on him (14). Thus, it can safely be concluded that the application of Article 13 is confined to law making organs and not to other bodies, which have no power to make law. This mean that the extended meaning given to Article 12, resulting in inclusion of private persons as state, is not affected in any manner by the provisions of Article 13, since private persons cannot make laws(s) within the meaning of Article 13. Article 13 read with Article 12 gives an "extended and more extensive" protection to holders of Fundamental Rights because the perpetuator of the wrong is the almighty sovereign State. Hence, Article 13 operates against the sovereign law making organs only and not private persons. As far as private persons are concerned, their "acts and omissions are decisive" since they do not possess "sovereign law making power". If we adopt any other interpretation than provisions like Article 17, Article 23, etc would be meaningless because these article provide protection against private actions. Alternatively, if Article 12 is extended by a purposive and meaningful interpretation, then Article 13 would be automatically extended to accommodate the same. Thus, instead of the words "law" the words "acts or/and omissions" can be substituted to make it workable.
(4) Article 17- Article 17 mandates that untouchability is abolished and its practice in any form is forbidden. Further, the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. A bare reading of Article 17 would make it clear it imposes an absolute ban on the practice of untouchability, enforceable against the sovereign organs of the State, its instrumentalities and even against private persons. This makes it clear that every time we deal with a Fundamental Right falling under Part III, we need not to consider Article 12 for deciding the protection limits of that Article. Even otherwise, the interpretation given to Article 12 and Article 13 would be in conformity with the letter and spirit of not only Article 17 but of the entire Constitution of India.
(5) Article 19- Article 19 provides to the "citizens" certain rights regarding freedom of speech, etc. these rights cannot be taken away by the sovereign organs of the Constitution, their instrumentalities and private persons. These rights are, however, subject to reasonable restrictions that make them compatible with public interest. A private person cannot curtail the legitimate freedom of speech and expression conveyed in the form of reasonable demands and industrial strikes by virtue of Article 19(1)(a) of the Constitution. If the industrial workers assemble peacefully and without arms and they are pressing legitimate and reasonable demands, after complying with the necessary requirements of law, then they cannot be denied this right of assembly by virtue of Article 19(1)(b) of the Constitution. Similarly, private persons cannot restrain the industrial workers from forming legal associations and union by virtue of Article 19(1)(c) of the Constitution. Thus, the protection of certain facets of Article 19 is also available against private persons. An argument may be advanced that Article 19 permits the "State" to make law to impose reasonable restrictions and if private persons are State within the meaning of Article 12, Article13, etc, than they can impose reasonable restrictions on the rights as mentioned above. This argument suffers from inherent weakness and an unappreciated fallacy. The context of the expression "State" and "law" u/a 19 diverts its applicability towards the "sovereign law making organs" and not to private persons, who have been declared to be State for the "limited purpose" of true and meaningful enforcement of the Fundamental Rights. Thus, the reasonable restrictions can be imposed only by the legislature on the behalf of private persons, which must be followed by both the workers and the private persons.
(6) Article 21- Article 21 of the Constitution mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. The ambit of Article 21 deserves to be expanded as far as possible because it is the most important Fundamental Right as provided under the Constitution. This requirement becomes absolute by the growing recognition of Human Rights as essential part of human's life. Further, the procedure established by law must be just, fair and reasonable (15). The expression "life" is of wide connotation and it is not confined to non-killing. It covers all sorts of hurts or injuries, both physical and mental, which have a "disabling effect" on the proper enjoyment of life. It is not confined to a mere animal existence with no element of human dignity attached to it. For instance, a private person cannot curb or eliminate the "welfare legislations" meant for poor labour force, either directly or indirectly. He has to comply with the provisions of the Minimum Wages Act, Payment of Wages Act, Factories Act, Workmen's Compensation Act, etc. If a private person does not follow the provisions of these welfare legislations, then the labour force cannot have a "dignified human life". It would be the wrong interpretation of the provisions of the Constitution, if private persons are excluded from the definition of State. It must be appreciated that the declaration of statehood is irrelevant when it comes to Article 21. This is because whether private persons are State or not, they cannot take away the right U/A 21. In fact, none can do so unless he/it has the backing of a procedure established by law. An argument may be advanced that for the violation of right to life or personal liberty, recourse to civil and criminal remedies can be had and there is no need of extending the scope of the provisions of Constitution in this regard. This argument, however, fails to appreciate a golden rule that "constitutional problems" can be solved only taking recourse of "constitutional solutions". The Constitution of India, being the grundnorm, has the supremacy and absolute binding value. The provisions of the Constitution cannot be interpreted in the light of statutory provisions though the reverse is always required and is desirable. Further, there are certain remedies, which are peculiar to the Constitution only. For instance the "compensatory jurisprudence", which is a part and parcel of "public law remedy", necessarily requires the violation of Fundamental Right for the grant of compensation. If a hyper-technical view is adopted, then private persons will be excluded from the compensatory jurisprudence altogether. They may unreasonably violate various Fundamental Rights and still would not be liable for "exemplary compensation", which is possible only for violation of Fundamental Rights. That is why the Supreme Court evolved the concept of "absolute liability". If normal civil or criminal remedies are invoked in such cases, it will bring absurd results, as these remedies have their own limitations. Similarly, "Polluter Pays Principle" and other environmental concerns require that the polluter, who has violated the right to clean environment of people at large U/A 21 of the Constitution, should not only pay adequate compensation to the parties affected by his action but also bear costs for the restoration of the environment. Thus, private persons can be held liable for violating Article 21 of the Constitution, otherwise an absurd situation may arise, i.e. the sovereign organs and its instrumentalities cannot take away life or personal liberty but private persons can. Only the authorities empowered in this behalf by the sovereign organs of the Constitution and that also after following a just, fair and reasonable procedure can take the right to life or personal liberty. The context of Article 21 requires that that such a procedure must have the sanction and approval of the sovereign organs of the Constitution, i.e. executive, legislature or judiciary and the private persons have no Constitutional say in this regard.
(7) Article 23- Article 23 prohibits traffic in human beings and forced labour and the contravention of the same shall be an offence punishable in accordance with law. The language of the Article is general in nature and it covers private persons as well. Thus, the violation of Article 23 by a private person would attract the constitutional sanctions.
(8) Article 24- Article 24 of the Constitution prohibits employment of children below the age of 14 years in any factory or mine or engaged in any hazardous employment. The Supreme Court has issued elaborate guidelines to prevent child labour. These include a prohibition of child labour in hazardous employment. The court further directed that a child labour rehabilitation welfare fund shall be set up in which offending employer should deposit Rs. 20,000. Further, in place of the child, an adult member of such child should be given employment (16). The Supreme Court has further issued directions as to education, health and nutrition and child labour (17). It must be noted that a prohibition U/A 24 equally applies to private persons and there is no good reason to allow them to by pass it by adopting a hyper-technical approach.
(9) Article 32- Article 32(1) ensures the right to move the Supreme Court by appropriate proceedings for the enforcement of Fundamental Rights. Thus, the right to move the Supreme Court itself has been granted the status of Fundamental Right. The Fundamental Rights have been given a sacrosanct position under the scheme of our Constitution by the framers of the Constitution. The Supreme Court has been assigned the noble duty to protect the Fundamental Rights of the Indians. If a Fundamental Right is violated, then not only the court has a power to provide appropriate remedy but also it is equally under an obligation to render justice by providing the remedy. Thus, even the Supreme Court has no power to deny enforcement of Fundamental Rights if the same are brought before the Supreme Court by appropriate proceedings. In the interest of justice, the Supreme Court has been kind enough to liberalise the procedural requirements for vindicating the Fundamental Rights. In exercise of its powers U/A 32 the Supreme Court can issue various writs like habeas corpus, mandamus, etc. For instance, a writ of habeas corpus can be issued, when a person complains of illegal custody or detention of an individual by a private person (18). Similarly, the Supreme Court has the power to regulate private rights in public interest by legitimately exercising its powers (19). In Vishaka v State of Rajasthan (20) the Supreme Court held that the protection against sexual harassment at work place is available even against private persons. The court held that this protection originates from Articles 14, 15, 19(1)(g) and 21 of the Constitution of India. It is interesting to note that the decision was given even in the absence of any domestic law dealing with the protection against sexual harassment. In fact there have been instances where no violation of any specific Fundamental Right was alleged and yet the Supreme Court entertained a petition U/A 32 and granted the relief (21). At this point of time, it would be apposite to mention that judicial review U/A 32 and 226 is a "basic feature" of the Constitution, which is beyond the pale of amendability (22). Even the writ jurisdiction U/A 226 can be exercised against private persons. This legal position has been clarified in Federal Bank Limited v Sagar Thomas (23) where the Supreme Court held that a writ petition U/A 226 might be maintainable against:
(1) the State,
(2) an authority,
(3) a statutory corporation,
(4) an instrumentality or agency of the State,
(5) a company, which is financed or owned by the State,
(6) a private body run substantially on State funding,
(7) a person or a body under liability to discharge any function under the statute,
(8) a private body discharging public duty or positive obligation of "public nature".
Thus, a writ may be issued to a private person, as there may be statutes, which need to be complied with by all concerned including the private individuals and companies. In State of U.P v S.N.Kapoor (24) the Supreme Court held that the High Courts have power to entertain suo-motu public interest petitions and give appropriate decisions, even if initially the matter arose in writ proceedings filed by private persons. The court, however, made it clear that before that, the High Courts must frame the necessary issues and raise the appropriate question and then proceed to decide the same.
In the ultimate analysis it can be said that Article 21 and Article 32 form the backbone and lifeline of all other Articles. If we carefully analyse these two Articles, it becomes apparent that even if other Articles are not specifically mentioned in Part III, they are capable of being so declared from these two Articles. It must be appreciated that the philosophy and ideology of all other Articles are incorporated in Article 21, which can be enforced U/A 32. The Articles provided by Part III are mutually exclusive and they operate independently of each other. Thus, a purposive interpretation of the Article 21, which has been done in the past, can solve many of the problems, which were unforeseeable when the Constitution was enacted. The purposive and extended definition of "State", covering private persons, is one of such requirement.
V. A note of caution
The declaration of private persons as "State' should not be guided by a mere "novel drive" or for the sake of fun only. It should also not be a base for a mere "academic discussion" or debate. Every discussion must be primarily guided by the "public interest" involved in it and it should not be undertaken in a casual manner. It should also be formulated in such a manner that the private persons come forwardly to voluntarily and readily accept it rather than feeling it to be imposed upon them. Thus, certain safeguards are essential, which define the parameters or guidelines, subject to which such a declaration can be made. It must be noted that these private persons also possesses certain Fundamental Rights, which are equally sacrosanct and valuable. This situation requires a benign trade-off between national interest on the one hand and the interest of private persons on the other. The following safeguards, which are not exhaustive by any means, should be adopted before declaring private persons as State:
(1) Sub serving public interest- The first and foremost safeguard for private persons is that the declaration should be made in public interests only and not for furtherance of private interests. A matter of "public interest" does not mean that which is interesting or gratifying curiosity or a love of information or amusement but that in which a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected (25). The expression "public interest" or "probity in governance" cannot be put in a straightjacket. Public interest takes into fold several factors. There cannot be any hard and fast rule to determine whether an action was taken in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilised society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity (26). These principles, though formulated and laid down in different context, can be safely applied with necessary modifications to private persons. The concept of justness, fairness, and reasonableness is, however, not the sole responsibility of the government and the government alone cannot be said to be the repository of acting in public interest. The private persons must also act in public interest while performing various public functions and duties.
(2) Public functions and duties- If the private persons are performing certain public functions or/and duties, then they can safely be regarded as State within the meaning of Article 12.
(3) Limited Statehood- The private persons, even after declaring them State, should not be equated with the " traditional welfare State". Further, the obligations cannot be more than those imposed upon traditional State. It must be noted that the declaring of an entity as State does not mean that it is a State for "all purposes". Thus, for a purpose of wider application of the Fundamental Rights, State has to be defined liberally, but not for other purposes. This means that an employee of a "public corporation" may challenge the violation of his Fundamental Rights by the corporation but for that reason he does not become a State employee and cannot claim the protection of Article 311 (27) or reservation benefits. Thus, if the status of government employee and the benefit of reservation cannot be claimed in public corporations, declared to be a State within the extended meaning of Article 12, then it would be unjustified to "impose" the same upon private persons (28). Thus, the declaration of "Statehood' should not be extended further "than ensuring fairness and reasonableness " on the part of private persons, while dealing with their employees or general public. The logical result should not be stretched to illogical and absurd consequences.
(4) Reconciliation of conflict of interests- The declaration of statehood of private persons should not lead to an irreconcilable confrontation of their Fundamental Rights on the one hand and the Fundamental Rights of general public on the other. It must be noted that the private persons also possess right to equality, the right to speech and expression, the right to trade or profession, the right to livelihood, etc which have to be equally respected and protected. Thus, in the zeal of declaring private persons as State, injustice to them should not be done.
(5) Basic structure- The declaration of statehood should also satisfy the requirements of basic structure doctrine, as it is the soul f the constitution and anything against it is per se void and unconstitutional.
(6) Incentives- The government should provide tax benefits and other concessions to the private persons, so that they voluntarily accept the responsibilities of statehood irrespective of any declaration originating out of a dispute or litigation.
(7) Transfer of rights- It would not be unjustified to demand that the rights enjoyed by the traditional State should also be transferred along with the obligations to the private persons. This makes the declaration of statehood more pragmatic, rationale, justified and fair.
(8) Minimum interference- The government should adopt the policy of minimum interference in the activities of private persons, which have been declared to be "State". That minimum interference should be resorted to in the public interest only and not to advance the ideology or notions of the ruling party.
(9) Reasonable law- Any law made, for dealing with the private persons, which have been declared as "State", should be just, fair and reasonable and must satisfy the requirements of principles of justice, equity and good conscience.
If the Fundamental Rights can be enforced against the "traditional State, there is no good reason why they should not be enforced against private persons. The Fundamental Rights are sacrosanct in nature and they cannot be taken away either by the "traditional State" or private persons. So much so is the importance of these rights that they cannot be "waived" or "surrendered" even by the possessors of these rights (29). Further, even in cases of non-fundamental rights, a person cannot waive his rights unless he is aware of it (30). Thus, merely because the violators are private persons that do not mean that they cannot be enforced against them. The ambit of Article 12 allows the inclusion of private persons under it. This requires that they must be engaged in some function, which is of vital public interest and not merely a private business activity. They must also be in a "dominant position" by virtue of their resources and means. Their actions must also be necessarily violation of Human Rights and Fundamental Rights. The concept of justice, equity and good conscience also assumes significance in this context. In the ultimate analysis the purpose of declaration as statehood should be restricted to bring fairness and justness in the actions taken by these private persons, while dealing with their own employees or with general public at large.
© Praveen Dalal. All rights reserved with the author.
* Consultant and Advocate, Delhi High Court, India.
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(1) U.O.I v S.B.Vohra (2004) 2 SCC 150.
(2) J.P.Bansal v State of Rajasthan, (2003) 3 SCALE 154.
(3) P.U.C.L v U.O.I, (2003) (3) SCALE 263.
(4) State of Maharashtra v Praful. B.Desai, (2003) 4 SCC 601.
(5) Justice Bhagwati in National Textiles workers union v P.R. Ramakrishanan, (1983) 1 SCC 228.
(6) Richard H. Fallon (Jr); “How to choose a constitutional theory” California Law Review, V-87: 535, Pp 538-539, (1999).
(7) The expression “persons” is used in this article to include natural as well as artificial entities, i.e. both human agency and corporate entities.
(8) Article 12 expressly mentions that the meaning of the expression “State” can be different than as mentioned in that Article if the context of the situation under consideration demands so.
(9) Goodyear India v State of Haryana, AIR 1990 SC 781, Para 7.
(10) M.C.Mehta v U.O.I, AIR 1987 SC 1086.
(11) Mahabir Auto Stores v Indian Oil Corporation, (1990) 3 SCC 752.
(12) Star Enterprises v City and Industrial Development Corpn of Maharashtra, (1990) 3 SCC 280.
(13) Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388.
(14) Dwarka Prasad v B.D.Aggarwal, (2003) 6 SCC230.
(15) Maneka Gandhi v U.O.I, AIR 1978 SC 597.
(16) M.C.Mehta v State of Tamilnadu, AIR 1997 SC 699.
(17) Bandhua Mukti Morcha v U.O.I, AIR 1997 SC 2218.
(18) Madhu Bala v Narendra Kumar, AIR 1982 SC 938.
(19) P. D. Shamdasani v Central Bank of India, AIR 1952 SC 59.
(20) (1997) 6 SCC 241.
(21) M.C.Mehta v U.O.I, AIR 1988 SC 1115.
(22) Kihoto Zachilhu, AIR 1993 SC 412.
(23) (2003) 8 SCALE 143.
(24) (2004) 8 SCC 630.
(25) Janta Dal v H.S. Chowdhary, AIR 1993 SC 892.
(26) Onkarlal Bajaj v U.O.I, (2003) 2 SCC 673.
(27) Sukhdev Singh Bhagatram, AIR 1975 SC 1331.
(28) Praveen Dalal; “ Constitutional perspective of caste discrimination”, (Under publication).
(29) Bashasharnath v C.I.T, AIR 1959 SC 149.
(30) M.P.Sugar Mills v State of U.P, AIR 1979 SC 621.
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