PERSONAL DETAILS

NAME: MAYURI VYAS

COLLEGE: RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB.

TOPIC: Non State Actors Performing Public Functions and Article 12 of

Indian.

Contact Details: 9636057419

Email: [email protected]

CONTENTS
I. STATEMENT OF PROBLEM AND RESEARCH QUESTION...................................................................3
II. ARTICLE 12: AN OVERVIEW..........................................................................................................3
III. STATE ACTORS AND NON STATE ACTORS: DISTINCTION..........................................................4
IV. EXAMPLES OF NON STATE ACTORS: BCCI, IOA, EDUCATIONAL INSTITUTIONS.......................6
A. BOARD OF CRICKET CONTROL IN INDIA....................................................................................6
B. INDIAN OLYMPIC ASSOCIATION.................................................................................................7
C. EDUCATIONAL INSTITUTIONS.....................................................................................................8
V. HORIZONTAL APPLICABILITY OF FUNDAMENTAL RIGHTS.............................................................9
VI. CONCLUSION............................................................................................................................10

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 Non State Actors Performing Public Functions
and Article 12 of Indian.

I.STATEMENT OF PROBLEM AND RESEARCH QUESTION

The present topics deal extensively with the non state Actors which perform the
functions of state. With the adoption of the global phenomenon of Globalisation,
Privatisation and Liberalisation there are various activities which are performed by
private entities solely or in collaboration with the state entities. Thus, in these
situations if these bodies infringe the fundamental rights of the individual, the
individual has the right to approach the justice mechanism against such
infringement.

If the private entities or the non state actors do not have any regulatory check over
them these bodies can hide themselves under the garb of being a private body
against which Fundamental rights are non justifiable.

The present problem deals with the situation of violation of the fundamental rights
by the non state actors. The research question is that do the non state actors violate
the fundamental rights of an individual. Substantiating through the case laws the
research question has been answered to an extent.

II.ARTICLE 12: AN OVERVIEW

The Constitution of India regarded as a living document is the lengthiest and longest
document which governs the largest democracy of the world. It is the supreme law
which direct the Legislature, the Executive and the Judiciary. The Constitution came
into effect on 26 January 1950 with 395 articles in 22 parts and 8 schedules. Today
this has increased to 448 articles in 25 parts and 12 schedules. There have been 103
amendments since its commencement in 1950.

Like the constitution of U.S. the fundamental rights are enshrined in the constitution
itself. The need to have fundamental rights was so very well accepted by the
constituent assembly, the point whether the Fundamental Rights should be
incorporated or not was never raised.1 Indeed the fight was regarding the restrictions
which were imposed on some of the fundamental rights.
1
Jain M.P., Indian Constitution Law, New Delhi, Lexis Nexis, 6th edition, 2010.

2
 Part III of Indian Constitution deals with the Fundamental rights and is called the
Magna Carta of India. The section regarding the fundamental Rights is important as
the freedom earned by the people from Britishers came at various sacrifices and it
became important to protect certain basic human rights which were then enshrined
into Fundamental Rights under Article 12 to 35 of Indian Constitution.

The word state as defined by the Black’s law Dictionary, “The area geographically
within defined territorial boundaries with a set of political institutions and rules by a
government through conformance laws.”2

Article 12 of the Indian constitution states,

“In this part, unless the context otherwise requires, the State includes the
Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of India or
under the control of the Government of India.”3

III.STATE ACTORS AND NON STATE ACTORS: DISTINCTION

With the trends of globalisation and privatization the divide between the public
sector and private sector is diminishing. Now the acts which were earlier reserved
for the state and were included in the sovereign functions of the state have been
privatised. Thus, there occur chances that the acts done by these private or non state
entities results in the infringement of legal or fundamental rights of an individual.
There has been no particular definition of what a non state actor is, however in
regards of economic, social and cultural rights, UN committee on Economic Social
and Cultural Rights (CESCR) has pointed that the non state actors that may infringe
the fundamental rights may include individual persons, groups, corporations, agents
and other authorities functioning public functions. 4
The need for separating the state actors and non state actors is because there are
various functions which are performed by the state for the public welfare while the
works of the private sectors includes mostly profit oriented. Thus the acts of the
private entities and other non state actors can also violate the fundamental Rights of
2
Black’s law Dictionary.
3
Article 12 Indian Constitution.
4
See UN Committee on Economic, Social and Cultural Rights, General Comment No. 15, Right to water
(2002), ¶ 23.

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 the individual. This makes it necessary for the judiciary to interpret what will come
under the other authorities of the article 12 of the constitution of India.
The judicial view has evolved over the years: originally, corporate public enterprises
(whether corporations or companies) were not regarded as 'state' as defined in
Article 12 of the Constitution; subsequently, certain criteria were applied in different
cases, and progressively, bodies performing quasi-governmental functions, statutory
corporations and finally even government companies have been held to be 'state' in
terms of that definition.5
The criteria which would immediately suggest themselves are: the exercise of state-
like power, the performance of agency functions on behalf of the government, the
performance of governmental or quasi-govern- mental functions, the transformation
of a departmental undertaking into a corporate entity, 'deep and pervasive' control by
the government and ownership by the government. These are the tests which the
courts themselves have applied in various cases.6In the state of Rajasthan State
Electricity Board v. Mohanlal7 asserted that an electricity board performing the
commercial function would be include as other authorities under article 12 of the
constitution. In the case of Ramanna Dayaram Shetty v. The International Airport
Authority8 the question of other authorities was considered.
The Court listed the following five factors as to whether an entity falls within the
definition of State as defined in Article 12 of the Constitution:
1. State financial assistance and the magnitude of that help
2. State control of the corporation's management and policies – nature and scope of
control.
3. Monopoly status conferred or protected by state.
4. Corporate functions, whether government functions strongly linked to the functions
of government.9

5
Ramaswamy R. Iyer. “Public Enterprises as 'State' and Article 12.” Economic and Political Weekly, vol. 25,
no. 34, 1990, pp. M129–M134. JSTOR, www.jstor.org/stable/4396678.
6
Ramaswamy R. Iyer. “Public Enterprises as 'State' and Article 12.” Economic and Political Weekly, vol. 25,
no. 34, 1990, pp. M129–M134. JSTOR, www.jstor.org/stable/4396678.
7
AIR 1967 SC 1857.
8
AIR 1979 SC 1628.
9
Tondon Sahil, Case Analysis: Ramana Dayaram Shetty v. The International airport Authority AIR 1979 SC
1628, Scholararticles. Date accessed 02-09-2019.
https://scholarticles.wordpress.com/2015/09/04/st3/

4
 Further in the case of Som Prakash v. Union of India 10 it was held that the true test
for holding a company under the garb of state or not was not that such body is
formed under any statute or not, rather it is the function of that body which decides it
to be state under article 12 of the Indian Constitution.
In the case of Zee Telefilms v Union of India11 it was held- Broadly, there are three
different concepts which exist for determining the question which fall within the
expression "other authorities".
i. The Corporations and the Societies created by the State for carrying on its trading
activities in terms of Article 298 of the Constitution wherefore the capital,
infrastructure, initial investment and financial aid etc. are provided by the State and
it also exercises regulation and control thereover.
ii. Bodies created for research and other developmental works which is otherwise a
governmental function but may or may not be a part of the sovereign function.
iii. A private body is allowed to discharge public duty or positive obligation of public
nature and furthermore is allowed to perform regulatory and controlling functions
and activities which were otherwise the job of the government.”

IV.EXAMPLES OF NON STATE ACTORS: BCCI, IOA, EDUCATIONAL INSTITUTIONS

A. BOARD OF CRICKET CONTROL IN INDIA

BCCI is an independent private organisation which looks for the game of cricket in
India. It is established in December 1928 and is registered as a society under Tamil
Nadu Societies Registration Act. It is affiliated to the International Cricket Council
and looks into the cricket at all the levels in the country. There has been a great
debate over the issue whether BCCI comes under the Article 12 of the Indian
Constitution or not.

The following facts regarding the status of BCCI are important.

1. BCCI in India was not created by a statute.
2. The Government hold no part of the share capital of the board.
3. Government provides no financial assistance to meet the expenditure of the board.
4. The board did enjoy a monopoly in the field of cricket but such status is not state
conferred or state protected.
10
AIR 1981 SC 212.
11
AIR 2005 SC 2677.

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 5. There was no existence of a deep and pervasive state control and the control, if any,
is only regulatory in nature as applicable to other similar bodies.
6. The board was not created by transfer of a government owned corporations and was
an autonomous body.12
Bhagwati J. went on to observe:
To use the methodology is not liberate the government from its basic obligation to
respect the Fundamental Rights and not override them. The mantle of a corporation
may be adopted in order to free Government from inevitable constraints red-tapism
and slow motion but by doing so, the Government can truant with the basic Human
Rights. Otherwise it would be the easiest thing for the Government to assign to the
plurality of corporation almost every State business, such as, Post and Telegraph,
T.V and Radio, Rail Road and Telephones- in short every economic activity and
thereby cheat the people of India out of the Fundamental Rights guaranteed to
them.13

B. INDIAN OLYMPIC ASSOCIATION

Indian Olympic Association is the body which selects the athletes for the
representation of India in various sports events like Olympics and Asian Games. The
Indian Olympic Association is an autonomous body having its own rules and
regulations. Also, all the sports federations in India are affiliated to the IOA with a
mandatory precondition that the respective association have to give up all the rights
to seek redressal in any court of law. The dispute of any kind would be resolved
through the panel of arbitrators from the Indian Olympic Association.14

In the case of Indian Olympic Association v. Union of India 15 “It is submitted that
merely because the UOI recognizes, gives diplomatic clearances or rail concessions
would not mean that it can control the NSFs. It is submitted that if UOI is allowed to
impose conditions by way of executive orders in the running, functioning,
management of the federations as a condition for grant of recognition and assistance
by the Government, it would lead to Government interference and dictates in the
W.P. (C) 2310/2012 Page 12 affairs of the NSFs, which is impermissible.”
12
Ajay Hasia v. Khalid Mujib Sehravardi & Ors, 1981 AIR 487, 1981 SCR (2) 79.
13
Supra
14
Borkar shubham, Sports law in India. Date accessed 02-09-2019.
https://www.khuranaandkhurana.com/2019/01/04/importance-of-sports-law-in-india/
15
(2014)5 HCC (Del) 432.

6
 In the case of Indian Olympic Association v. Veerish Malik 16 the question whether
the IOA comes under Right to Information was discussed. It was held by the court
that for the matter of the RTI the IOA comes under other authorities as it is
substantially financed by the state and central government. The act however does not
define what is substantially financed but for the present case the IOA was held to be
under the category of state.

C. EDUCATIONAL INSTITUTIONS
The court in most of the cases adopts the approach to decide whether the concerned body is
a state or not by assessing as to whether the body is performing any public function or
discharging any public duty. In the case of Binny Ltd. & anr. V. Sadasivan & Ors. 17 The
Supreme Court held that if a private body performs a public function and discharges public
duty the same is maintainable in the writ under article 226 of the Indian Constitution.
However, what the court meant by the terms public function and public duty remains to the
interpretation and reasonability of the judiciary.

The educational institution can be classified into governmental and private institutions. In
the former case the government institutions fall directly under article 12 however the private
institutions can be further divided into aided and unaided.

In Anandi Mukta Sadguru Trust v. V.R. Rudani & Ors.18, All India Sanik Schools
employment Associations v. Sanik Schools Society19 Supreme Court held that the if the
educational institutions receive any kind of monetary aid from the government these are
considered to fall under other authorities.

In the case of Sater Paul v. Sobhana English Medium High School 20 the court admitted that
the writ petition against the government recognised private unaided institution is
maintainable under Article 226 of the Indian Constitution.

Apart from these bodies there are some other non statutory bodies which have been held as
authorities within the meaning of article 12 like, the Council for the Indian School
Certificate Examination21, the Indian Council of Agricultural Research22, an aided school

16
(2010) ILR 4 Delhi 1.
17
(2005) 6 SCC 657.
18
AIR 1976 2 SCR 1006.
19
1989 AIR 88, 1988 SCR Supl. (3) 398.
20
2003 (3) KLT 1019.
21
Vibhu Kapoor v. Council of I.S.C. Examination, AIR 1985 Del 142.
22
P. K. Ramachandra Iyer v. Union of India, AIR 1984 SC 541: (1984) 2 SCC 141.

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 receiving 95% of its expenses by way of government grant 23 the Regional Rural Bank set up
in the pursuance of the power given by a statute.

V.HORIZONTAL APPLICABILITY OF FUNDAMENTAL RIGHTS

The fundamental rights are enforceable against the state as mentioned under article
12 of the Indian Constitution. This enforceability of the Indian constitution can be
applied vertically as well as horizontally. The vertical application of the fundamental
rights simply implies that the fundamental rights can be enforced against the
government. The horizontal applicability is applied when the fundamental rights are
enforced against the private entities. This horizontal applicability can be further
divided into direct horizontal application and indirect horizontal application.

Direct application of fundamental rights occurs when the action lies against the
private individuals and they are held responsible directly. There has been always
reluctance in the Indian legal system for the application of the direct horizontal
applicability. However, in the cases related to the article 14, 19 and 21 of the Indian
Constitution the court had applied the principle. In the famous case of MC Mehta v.
Union of India24 where the court used the direct applicability it was questioned
whether the private corporation of Shriram Facotries registered under the Industries
(Development and Regulation) Act, 1951. It was further observed that though it was
a private corporation it will fall under article 12 and the corporation is liable for the
violation of Fundamental Right.

The indirect applicability is used when the court needs to protect the fundamental
ajayrights of a private individual from a private individual but there has been no
such provision for it in the constitution. However, there is an implied duty of the
court to protect the fundamental rights and the basic structure of the constitution.
The court instead of directly applying imposes laws and restrictions. The most
common example can be seen in the case of Vishakha v. State of Rajasthan 25 where
the guidelines were issued for the protection of women from sexual harassment in
workplaces including the private entities.

23
Manmohan Singh v. Commr., U.T. Chandigarh AIR 1985 SC 364: 1984 Supp SCC 540.
24
AIR 1987 SC 965.
25
AIR 1997 SC 3011.

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VI.CONCLUSION

There is a long way to go for the judiciary to decide whether at different times when
non statutory or private entities violates the fundamental rights of an individual
would come under Article 12 or not. The private bodies like BCCI and IOA are one
of the many bodies having monopoly in their fields and try to infringe and violate
the fundamental rights of the people. Not only such violation is contrary to the basic
structure of the Indian Constitution but the very basic idea of the constitution makers
goes in vain if the individuals are not protected against such violation of the
fundamental rights. Simply putting the tests for considering a body as a state under
article 12 of the constitution does not serve the purpose rather it mocks on the
present situation. The inclusion of the tests to provide relief to the needy should be
the focus of the judicial system.