Position Of Fundamental Rights In The World Of Privatization, Globalization And Industrialization
In this era of Globalization, Free Market and World Economy, a move has been initiated to encourage privatization in performing several welfare, commercial and other such activities which were traditionally considered to be the functions of the State as welfare State; But this has raised several questions of constitutional importance generally and exercise of Fundamental Rights, their violations and the claim relating infringement of Fundamental Rights. Some illustrations for showing the shift of the performance of several welfare, commercial and other such activities from the State in the hands of free market and private world can be given reference as follows:
* Though there are around 27 nationalized banks in India like Punjab National Banks, State Bank of India etc. Still number of privatized banks like HDFC, ICICI are growing rapidly in Indian economy.
* Indian market is got captured by numerous Multi National Companies like Sony in the name of Sony India Pvt. Ltd., Honda, Quark, H.P. and so on.
Apart from it there are several other fields also like insurance business etc. where the private companies are settling their feets effectively and efficiently.
Now the concern of my study begins that what is the position of Fundamental Rights in the present era of globalization, free market and world economy.
Basically our Constitution provides Fundamental Rights to the people:
Firstly, to save them against the undesirable action of the state and any of the agency of the state encroaching upon their of Fundamental Rights; and
Secondly to give them a right to get their of Fundamental Rights to be enforced by the court of law against the state in case any infringement.
Where we are discussing the eroding scenario of state and the claim of Fundamental Rights it would not be out of context to discuss about the meaning of the Constitution because both the State and The Fundamental Rights are the part of the Constitution itself.
According to dictionary meaning “the constitution of a country is that body of rules, written or unwritten which :-
a) establishes institution of government for a particular country, and
b) which specifies the ways by which the political process has to function.
But while we interpretting the Indian constitution we come to know that our Constitution put the people of somewhere at a very high place.
Under Indian Constitution the people of India has been given sovereignty as Preamble of the Constitution itself states “WE THE PEOPLE OF INDIA – HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION OF INDIA”.
That shows that government of India and its all the organs has to perform their duties and work for the people of India under the purview of general principles and provisions of Constitution of India.
Purpose Of The Study:-
The purpose of my study is as follows:-
a) What amounts to within the ambit and scope of Article 12.
b) What expensive interpretation has been made by the Indian judiciary and what is its present status.
c) To study the Objective Resolution of the Constitution and the Preamble of the Constitution stated for.
d) How and why rights of the people are divided in two categories that is:
· Fundamental Rights
· Directive Principle of State Policy.
e) Who are the actual consumers of fundamentals rights.
f) Against whom fundamental rights are enforceable.
g) Present position of Fundamental Rights and protection given to the Fundamental Rights.
h) Concept of welfare state and so on.
i) How far Fundamental Rights are enforceable in the world of Globalization, Liberalization and Industrialization.
Scheme Of The Project:-
In the light of the statement of problem and purpose of my study, I will be discussing my project under the following heads which basically shows us that:
a) How much importance is given to the Fundamental Rights in the Constitution of India.
b) According to the Constitution, Fundamental Rights are only enforceable against the State under Article 12.
c) In the era of globalization, liberalization and industrialization the basic Fundamental Rights of most of the people are in the hands of the privatized world.
d) How far Fundamental Rights would be enforceable against an instrumentality which does not come under the ambit of state under Article 12 of the Indian Constitution.
1. The principle and enshrined in the Preamble of the Constitution:-
Objective Resolution of the Constitution as well as the Preamble of the Constitution shows the intention of the Constitution makers that how much they were concern for not only providing Fundamental Rights to the people but also to provide effective measures for enforcement of those Fundamental Rights easily in the hands of court of law.
A glance at clauses (4), (5), and (6) of Objective Resolution shows the concern of people of India even to the extent that the whole Government process is actually placed in the hands of people of India. As clause (4) of Objective Resolution significant in regard which reads as follows that “all the powers and authority of the sovereign independent India, and of its constituent parts and of organs of government, are derived from the people”
Clause (5) of Objective Resolution says that “it shall be guaranteed and secured to all of the people of India – justice: social and political, Equality of status and of opportunity and before the law: freedom of thought, expression, belief, faith, worship, vocation, association and action but subject to law and positive morality.”
Apart from this Preamble of the Constitution of India also begins with the word “we the people of India”
Thus all these above statements made it very-very clear that Constitution of India wants to put the people of India somewhere at higher level and to the state in the capacity of serving authority which basically have to work and functions for the betterment, development and welfare of the people of India. And to serve this purpose part III of the constitution only talks of Fundamental Rights, which itself contain Article 32, itself a Fundamental Rights for the proper enforcement of Fundamental Rights.
But the question arises would it be the real and actual position of the Fundamental Rights of the people as has been intended by the framers of the Constitution?
No, the ground reality is something different.
Here I am highlighting the views of the Supreme Court as given in various landmark cases.
As in A.K.Gopalan v. State of Madras
In this case it was contended that preamble to our constitution, which seeks to give India a “Democratic Constitution” should be a guiding star in its interpretation, hence any law made under article 21 should be held void, if it is offended as against the principles of natural justice.
But the majority in the Supreme Court rejected the contention holding that “law in Article 21 refers to very positive or state made law, and not to natural justice, and that this meaning of language of Article 21 could not be modified with reference to Preamble.
Thus this is the plight of our system that at one time Preamble laid down the intention of the framers of the Constitution in the form of basic fundamental principle governing the state but on the other hand while interpreting the Fundamental Rights certain lacunas still remains in our system which made it complex to actually assert the concept of welfare state.
3. Against whom fundamental rights are enforced : A critique
The existence of Article 12 in part III of Indian Constitution itself says that Fundamental Rights are enforceable only against the State. Thus Fundamental Rights can be enforced in their nature and power as of Fundamental Rights only when their violated by the state and when their not violated by the state they have not to be enforced as Fundamental Rights but to be enforced as general rights under general laws. Thus it very rudely struck down the fundamental rights basically to be enforced in the capacity of fundamental rights.
Once Dr. B. R. Ambedkar said that “If I was asked to quote the important or the golden Fundamental Rights then my answer would be that though all the fundamental rights are equal yet Article 32 constitute the very soul of the fundamental rights.”
This is said by Dr. Ambedkar because existence of Article 32 ensures that enforcing a fundamental right is itself a fundamental right. But what would be the benefit of Article 32, if the body against whom fundamental
rights are enforceable does not come under the definition of state as given under Article 12.
Here if we look upon the answer of the question that against whom fundamental rights are enforceable then again answer come “the state and state only”. Would you think that it is easy to determine the scope of state, no it is not that much easy that judiciary defines certain water-tight compartments for easily defining that what the state is and what is not a state. Here I am quoting an example of Ajay Hasia v. Khalid MujibIn this case without being exhaustive, Bhagwati, J., discuss in detail various factor relevant for determining whether a body is an instrumentality or agency of the state. These factor are as follows :
If the entire share capital of the corporation is hand by the government, it would go a long way towards indicating that the corporation is an instrumentality or authority of the government.
Where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character.
where the corporation enjoys monopoly states which is state conferred or state protected.
Existing of deep and pervasive state control may afford an indication that the corporation is an instrumentality or authority of the government.
If the function of the corporation are of public importance and closely related to government function it may be considered as one of the factor for determining whether the corporation is an instrumentality or authority of the government.
If the department of government is transfer to corporation it would be a strong factor supporting the inference of the corporation being an instrumentality or agency of the government.
If on the above consideration we found that the corporation is an instrumentality or authority of the government, it would be an authority and, therefore, state within the meaning the Article 12.
But on the other hand in the same case it was laid down that these test are not conclusive or clinching, and it must be realized
that it would not be stretched so far as to bring in every autonomous body which has some nexus with the government, within the sweep of the expression state under Article 12.
That’s why in Unni krishnan J.P. v. state of A.P., it was held that a private educational institution does not become an instrumentality of the state because of the mere fact that it has received recognition or affiliation of the state.
In this straight line in Sabhajit Tewary v. Union of India decided along with Sukhdev Singh case by the same bench of the Supreme Court it was held that the Council of Scientific and Industrial Research, though a society registered under the Societies Registration Act, 1860, yet was not a state within article 12.
In Executive Engineer (State of Kerela ) v. K. Somaselty, it was held that the term industry does not comes under the purview of article 12, unless it was declared to be an instrumentality or agency of state.
In state of West Bengal v. Subodh Gopal Bose, Patanjali Sastri, C.J. said :
That “the whole object of part III of the constitution is to provide protection for the freedoms and rights mentioned therein against arbitrary invasion by the state”. This shows that writs filed under article 32 as against a private person, not being a state is not maintainable by the court. Such a writ against a private person could be filed under article 226.
The Judicial interpretation on the point of question that “what includes a state” under article 12 for the purpose of enforcement of fundamental rights as against those bodies can be viewed as follows:-
a) The following have held to be instrumentalities of the state:-
District Rural Development Agencies.
U.P. State Cooperative Land Development Bank Ltd.
b) Under the control of the government of India:-
A judicial or quasi judicial authority has been held to be not under the control of the government of India.
c) The following have been held to be a “state”:-
Hindustan Steel Works Construction Ltd.
Modern Food Industries (India) Ltd.
Steel Authority Of India Ltd.(SAIL), Balbir Kaur v. SAIL, AIR 2000, SC 493.
d) The following have been held not to be a “state”:-
Orissa State electricity Board,
St. John’s ambulance Association
e) Questions Whether the following are “state” , left open
Air India corporation,
Punjab State Cooperative Land Mortgage Bank
Rajasthan Adult Education Association ( a registered society)
Thus the above example clearly shows that enforcement of one’s Fundamental Rights basically depends upon the judicial interpretation that how judiciary interpret a body, concern, or establishment whether or not be a part of state under Article 12.
It is clearly maintains by the constitution itself that Fundamental Rights given in Part III of the constitution can only be enforced against the state. And as the concept of definition itself is very complex, that’s why before enforcing his Fundamental Rights and get the justice done one has to conquer two fights:-
· First to get it declared by the court of law that the particular body against whom he has to get his fundamental rights declared comes within the purview of the term “state” under article 12.
· Second if he succeeds in establishing that the particular body is state under article 12 then he has to get it declared by the court of law that his claim of fundamental rights against that body is justified.
Now somewhere it becomes clear that though the people of India are having ample of Fundamental Rights to be get enforced by the court of law if they are violated yet it is not easy and smooth for them to get their fundamental rights enforced in a era where the protection of Fundamental Rights is secured only against the violation by the state.
4. Consumers of Fundamental Rights: to whom these rights are available:-
The next area of my study begins with the Question that who are the actual consumers of the fundamental rights. That is to say for whom fundamental rights are basically meant for? The answer to this question will be given under the context that whether only the citizens will be entitled to avail of the fundamental rights or Non-citizens would be given certain fundamental rights, or whether any other certain class of consumers are also made, who can enjoy the benefits of fundamental rights.
Part III of the constitution of India provides numerous fundamental rights from article 12 to 35 to different – different class of people. Take a look on the language of different articles which will show as who is actual consumer of the particular article.
Article 14, which talks of right to equality starts with the words that “The state shall not deny to any person equality before law and equal protection of laws within the territory of India.” Thus art. 14 says that right to equality is available to both citizens and non-citizens.
In Chiranjit Lal Chowdhary v. Union Of India, it was held by the Supreme Court of India that Article 14 applies to all the persons and is not limited to citizens. A corporation, which a juristic person, is also entitled to the benefits of this article 14. The underlying principle of article 14 is that all the persons and things similarly circumstanced shall be treated alike both-
a) in respect of privileges conferred, and
b) Liabilities imposed.
Also in Kamala Gaind (Smt.) v. State of Punjab, it was held that equality before law means that all the persons, be the citizens and non-citizens to be given equal protection of laws and laws to be equally administered and the like to be treated alike.
Though article 14 is made available to all the persons but article next to it that is article 15 is available to the citizens only. As language of Article 15 states that “the state shall not discriminate against any citizen on the ground only of religion, race...”
Again protection of article 16 is made available to the citizens of the country. According to article 16 Equality of opportunity in the matters of public employment is to be distributed and availed of by the citizens only and not by the non-citizens.
Not only article 15 and article 16 gives benefit to the citizens only but article 19 securing six fundamental freedoms also gives enjoyment of this right to the citizens of the country. As Article 19 states that “all the citizens have the right –
a) to the freedom of speech and expression;
b) to assemble peacefully and without arms;
c) to form association and unions;
d) to move freely throughout the territory of India;
e) to reside and settle in any part of the territory of India;
f) [omitted by constitution 44th amendment Act,1978];
g) To practice any profession or to carry on any occupation, trade or business.”
Thus this again shows that the six fundamental freedoms can only be availed of by citizens of India and any person claiming these freedoms can not get them enforced by the court of law in the form of fundamental rights in the same manner in which citizens of the country can get them enforced.
In Anwar v. State of J&K, it was held that it is the citizens alone to whom the rights under this article are secured. An alien or a foreigner has no rights under this article because he is not a citizen of India.
In State of Gujarat v. Arvind Mills, it was held that the juristic persons such as companies are not citizens within the meaning of article 19. citizens under this article means only the natural persons who have the status of citizenship under the law.
In Bank Nationalisation Case it was held by the Apex Court that a shareholder, a depositor, or a director is not entitled to move a petition for the infringement of the rights of the company, unless by the action impugned by him, his rights are also infringed.
Apart from this it has to be kept in mind that Article 21, one of the most important right, securing fundamental right “right to protection of life and personal liberty” is available to all the persons that is citizens and non-citizens within the territory of India, unless it is taken by the procedure established by law
Article 21 reads as follows: that “No person shall be deprived of his life and personal liberty except according to the procedure established by law”
Thus now the matter comes to our concern and study is that though number of fundamental rights are enumerated in the Indian constitution but how far provisions are made convenient and smooth so as to made the Fundamental Rights easily accessible and easily enforceable by the people of the country.
Out of above study we can laid out the following points in the concern of who is the actual consumers of fundamental rights:-
# Framers of the constitution intend to put the people of India somewhere at higher level and to put the state in the serving capacity of the people at large.
# Certain Fundamental Rights are given with a view to ensure protection to the individual against the arbitrary action of state where such action violates the fundamental rights of the citizens.
# Fundamental Rights are basically given to the citizens but certain fundamental rights are managed in the favour of non-citizens also.
# Under certain cases it was held that corporations being a juristic person are not coming in the sphere of citizens, and that’s why Fundamental Rights which are basically made available to the citizens only cannot be enforced by the those corporations
# In the era of globalization, liberalization number of corporations has been established, and then what should be the benefit of fundamental rights to those corporations of the Fundamental Rights which are basically secured for the citizens like Article 19 is made for citizens.
Thus with the above discussion we found out that the framers of the constitution has put in their unforgettable efforts to promote more and more protection to the people of India not only by introducing certain Fundamental Rights in the constitution of India but also by providing certain effective measures for the enforcement of those fundamental rights in the form of article 32. But due to the changing scenario of the state, the claim of fundamental rights becomes complex sometimes which causes injustice to the person who deserves the justice to be done with him.
5. Emerging scenario of state and the claim of fundamental rights: Recent trend.
At last I will be discussing two most important points of my study which are as follows:
a) what is the present position of the term state under Article 12 in the light of liberalization and globalization
b) How far Fundamental Rights are enforceable in present scenario.
With the economic liberalization in India and globalization of world economy some people entertain serious doubts about the application and efficacy of the fundamental rights. The doubts are based on the following fundamental premises:-
Firstly, that with the increasing role of private enterprises and decreasing role of the state, the fundamental rights would be violated more by the private enterprises than by the state. And
Secondly, that in certain cases private enterprises like corporations and so on was not declared to be state under article 12 for the purpose of part III of the constitution.
Thirdly, the private enterprises itself will claim the fundamental rights as a legal person such as corporations including multi-national corporations.
Thus these premises warn us against the possibility of disuse and misuse of fundamental rights.
Look at the following case – laws, this will show the clear picture of the fundamental rights in the recent scenario.
In S.K. Mukherjee v. Chemical Allied Products
Supreme Court of India held that a “COMPANY” is not a state and that’s why fundamental rights cannot be enforced against that company.
In State Of Punjab v. Raja Ram, it was held by the court that a society registered under the Societies Registration Act, is not a state, unless it can be held that the society is an instrumentality or agency of the state or exercised statutory powers to make the rules, by-laws, or regulations having statutory force.
In Kochuni K.K. v. State of Madras Apex Court held that a private body having no statutory power is not a state.
In samdasni P.D. v. Central Bank court made a statement that the rights guaranteed under article 19, 21 and 31 are guaranteed against the state as distinguished from violation of such rights by the private individual. Thus violation of rights by the private individual gives the person aggrieved a right to seek remedy under general laws.
In Manmohan Singh v. Commissioner, Union Territory Chandigarh Court held that an aided private school may be included in the definition of the state only when it functions as an agency of the state.
In Mehta M.C. v. Union Of India (oleam gas leak case), Supreme Court though granted relief to the petitioner against the violation of Article 21by a Company but in this case, Supreme Court left the question open “whether a company was a state.”
In the recent case of BCCI v. Zee Telefilms Ltd., the Supreme court of India ruled that the Indian cricket board was not a 'State’ as defined under Article 12 of the Indian Constitution and, hence, cannot be sued for alleged violation of fundamental rights. The ruling was given by a majority 3:2. While Justices Hegde, Singh and Sema held that the BCCI was not a 'State', Justices Variava and Sinha were of the opinion that the cricket board was a 'State' within the meaning of Article 12.
In the next point concern should be given that how far corporation can enforce their fundamental rights. It has to be very clear to us, that the Fundamental Rights like Article 14, 21, 22 etc. which are available to all the persons can be enforced by both legal as well as by natural persons thus in this case corporations can enforce their fundamental rights. But in case of fundamental rights which are available only to the citizens can only be enforced by citizens and the corporation being an artificial person cannot enforce the fundamental rights like Article 15,16, 19 and so on.
Thus all the contents of my scheme of the project shows out that:-
a) There are fundamental rights some only for citizens only and some for both the citizens and non-citizens.
b) Fundamental rights are to be enforced only against the “state” defined under article 12.
c) In the era of liberalization in India and the globalization of world economy, chances of violation of Fundamental Rights in the hands of private bodies is probable and expected.
d) Corporations including MNCs etc. are usually not comes within the definition of the term “state”
e) Thus how far fundamental rights can be protected from violation in the hands of private bodies.
f) Finally enforcement of fundamental rights basically depends upon the judicial interpretation of the term “state”.
· That the intention of the framers of the constitution in to provide certain fundamental rights to the people of India for their proper development and protection of their dignified life
· But due to the changes in the present scenario enforcement of fundamental rights become rigid somewhere especially against private bodies having no statutory powers.
· Thus first complexity in interpreting the term state under article 12 is to be removed for proper enforcement and utilization of fundamental rights of the people of India.
Now to conclude I would like to say that we are living in the era of welfare state in which all the powers, functions and duties of the state and of the organs of the state is to be performed under the purpose of welfare state. Thus while enforcing the fundamental rights of the people state should set aside the complexity of Article 12 in defining the term state but it aimed to get the justice done by opting for the liberal interpretation to the constitutional provisions. Apart from it the Court in several cases given the relief to the petitioner without going into the question whether the violator of the fundamental rights was a state. Thus in the era of globalization, liberalization and industrialization the court of law should first consider the welfare of the people of India and courts has to kept in mind justice should not only be done but it seems to be done. And this is the reason that’s why I am supporting that court has to interpret the Fundamental Rights in the direction of justice without going into the concept and concern of the term “State” as given under Article 12.
It may be hoped that the evolving universal expansion of human rights will ensure suitable efficacy to and enforcement of fundamental rights in the changing scenario. The constitution in general and the fundamental rights in particular are capable of meeting the challenge of any changes in the society.
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# Bakshi P.M., THE CONSTITUTION OF INDIA, New Delhi, Universal Law Publication, 2007
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# (1981) 1 SCC 722, 737: AIR 1981 SC 487
# AIR 1993 SC 2178
# (1997) 5 SCC 434
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# [R.C. Cooper v. Union Of India, AIR 1970 SC 1318,]
# AIR 1962 cal. 10 (12)
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