The State is perhaps the single most coercive entity conceived by humans. But that begs the question: what is the State? The answer, of course, varies based on whom you ask. Marx had said in The Communist Manifesto, “The executive of the modern state is nothing but a committee for managing the common affairs of the whole bourgeoisie.” For Hobbes, the people themselves established the sovereign by transferring all their rights through a contract (also known as the Social Contract theory). The Leviathan represents this abstract notion of the State, and the State’s actions can never be challenged by citizens—based on the principle that “no wrong is done to a consenting party”. German sociologist Max Weber defined the State as a polity that maintains a monopoly on the use of violence.
Irrespective of the thinker you pick, the common feature underlying their philosophy of the State is the enormous power wielded by this entity.
The State and The Constitution
The question as to who constitutes the State is crucial from a constitutional perspective. Whereas other legal rights are a creation of the State and granted to individuals against one another, fundamental rights are that inalienable core of personhood that provide an individual protection against the State itself. In simpler words, fundamental rights are traditionally understood to be claimed against the State. This is because the sovereign—with an exclusive (legitimate) monopoly over violence—was seen as posing the greatest threat to the liberties of an individual. Political philosopher Seyla Benhabib argues that the modern conception of rights arose out of the American and French revolutions, both of which were led by a rising bourgeoisie class that wanted to wall off a “private” economic and personal domain against absolutist State interference.
Accordingly, the US Constitution, first amongst modern written constitutions to recognise fundamental rights (through the Bill of Rights: as enacted by the first ten amendments) applied those rights only to State action, even though the constitution did not expressly say so.
This position was also reflected through initial Indian jurisprudence. In 1954, in the case of State of West Bengal v. Subodh Gopal Bose, the Indian Supreme Court had said, “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.”
The above-mentioned approach is known as the vertical application of fundamental rights, and acts as a check upon State power. In contrast, the horizontal application allows a person to bring a fundamental rights challenge even against private entities.
The Indian Constitution is recognised as transformative for being among the first in the world to have specific provisions that outlaw horizontal rights violations. Article 15(2) prohibits discrimination in access to shops, wells, bathing ghats, public restaurants and similar public spaces. One is reminded of Dr Ambedkar’s powerful words, “The issue is not entry into temples, but equality” (as quoted in Anupama Rao, The Caste Question). Article 17 abolishes the practice of untouchability. Article 23 prohibits traffic in human beings, as well as bonded labour. The presence of these provisions reflects the understanding of the Constitution framers that individual dignity and liberty can equally be at threat from patriarchal, casteist, bigoted tendencies exhibited by private entities (social groups, religious communities, and individuals). Dr S. Radhakrishnan had said before the Constituent Assembly, “We wish to bring about a fundamental alteration in the structure of the Indian society…to abolish every vestige of despotism, every heirloom of inorganic tradition.”
And while these three specific provisions do seek to counteract discrimination meted out by private entities against other private entities, the rest of Part III (the Indian charter of Fundamental Rights) is still applicable against the State only, with a few intricacies and exceptions. In Shrimati Vidya Verma v. Shiv Narain Verma, the India Supreme Court refused to find an Article 21 (right to personal liberty) violation in the case of one individual being detained by another.
Article 12 of the Indian Constitution
Before we proceed to the definition of the ‘State’ as per the Indian Constitution, it is important to clarify against what activities are fundamental rights enforceable. The answer, in HM Seervai’s words, is in fact tautological: “They are enforceable against laws and executive actions which violate fundamental rights.” That is, as per Articles 13 (1) and (2) of the Constitution, all laws contravening or violating fundamental rights are to that extent void.
Furthermore, to provide an effective remedy against the State violating fundamental rights, the Constitution created a new fundamental right in Article 32, which allows a person to move the Supreme Court to enforce Part III rights. Article 32(2) arms the Supreme Court with the power to issue appropriate writs, orders or directions to prevent a violation of fundamental rights. It is of Article 32 that Dr Ambedkar had said,
“It is the very soul of the Constitution and the very heart of it…” (Constituent Assembly Debates, Vol. VII, pg. 953)
Returning to Article 12 which defines the term “the State”, one sees that the Constitution framers did not use the word in the ordinary sense, but provided a wide definition: “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.”
Commenting on the draft Article 7, Dr Ambedkar clarified that the purpose of Part III was not only to bind the Central and State Governments but also every district local board, municipality, panchayat, taluk board, and every other authority created by law and vested with the authority to make laws, rules, or by-laws. (Constituent Assembly Debates, Vol. VII, pg. 610)
While the rest of the definition in Article 12 seems unambiguous, the term “other authorities” provides great scope for judicial interpretation and therefore innovation.
Courts have oscillated between expanding and contracting the scope of “other authorities” within the meaning of Article 12. One must note that the broader the interpretation of “other authorities”, greater the number of actors against whom fundamental rights could be claimed.
The first landmark judgment in this direction was Electricity Board, Rajasthan v. Mohan Lal (decided by a 5-judge bench of the Indian SC in 1967). Finding that the Rajasthan Electricity Board fell within the definition of “the State” in Article 12, the majority held that “other authorities” would include all authorities created by the Constitution or statute on whom powers are conferred by law. The fact that the functions were commercial was irrelevant, since the State itself could clearly carry out trade and business. Therefore the Court seems to have adopted a test that focuses on the anatomy of the entity: whether or not it is created by statute, and whether it has legal powers conferred to it.
This test as further developed in the case of Sukhdev Singh v. Bhagatram (1975; 5-judge bench of the Indian Supreme Court) wherein the question was whether the Oil and Natural Gas Commission (ONGC), Life Insurance Corporation (LIC), and the Industrial Finance Corporation (IFC) were “State” within Article 12. By a majority of 4:1, the Court held that the three corporations were “State”, finding that they were all created by statutes and had the statutory power to make binding rules and regulations. But the decision is significant not for applying the existing test developed in the Electricity Board case, rather for the concurring opinion delivered by Mathew J.
Mathew J. observed the radical change in the conception of the modern State, and that the State could no longer be looked upon simply as “coercive machinery wielding the thunderbolt of authority.” He then went on to observe,
“The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public.”
He then proceeded to lay down possible situations where the ‘State instrumentality’ test may be satisfied.
“A finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as State action. Another factor which might be considered is whether the operation is an important public function. The combination of State aid and the furnishing of an important public service may result in a conclusion that the corporation should be classified as a State agency.”
Therefore, Mathew J. also laid down the possible groundwork for a ‘public function’ test—which we shall discuss later.
In RD Shetty v. International Airport Authority, the Indian Supreme Court made clear references to the welfare state model and the growing influence of the government through its regulatory power of licensing and conferment of economic largesse to private entities.
In Ajay Hasia v. Khalid Mujib, Bhagwati J. (Supreme Court of India) pointed out the underlying objective behind such an expansion in the understanding of “the State”. If agencies and instrumentalities of the government were not held to be “other authorities” under Article 12, “it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV 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.”
Ajay Hasia also provided a crucial development, insofar as it removed the requirement of the government agency or instrumentality being a statutory body. Rather, the Court held that the concept of instrumentality is equally applicable to a company formed under the Companies Act, 1956 or a society registered under the Societies Registration Act, 1860.
In the given case, the petitioners had brought an Article 14 challenge against admissions to the Regional Engineering College, Srinagar. The college was run by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1893. Holding that the Society was an “instrumentality and agency” of the Central Government, it was considered an “other authority” for the purpose of Article 12.
Functional and Structural Approach
The conflict that now emerges is between two approaches to the term “other authorities”. The structural approach emphasizes on the structure of the entity to determine whether the State exercises “deep and pervasive” control over the operations of the entity. Only when it is found that the government significantly controls the body in question would it be regarded as “the State” for the purposes of Article 12.
An alternative approach is the functional test, also known as the ‘public function’ doctrine. As per this doctrine, courts need not bother themselves with the nature and extent of government control. Rather, as long as the entity performs a function is which of a sovereign character or one that considerably impacts public life, the entity must be considered “the State” and must be amenable to a fundamental rights challenge. For instance, if a private company has complete monopoly over the water supply in a particular city, and the company chooses to deny access to water to members of a particular religion, then a claim for violation of right to equality shall lie against this private company (even if its operations are in no manner controlled by the government).
It is interesting to note that Indian jurisprudence was gradually developing traits of a functional approach. As mentioned earlier, Mathew J. In Sukhdev’s case hints at a possible ‘public function’ test to determine whether the entity in question is “the State”.
One of the six tests laid down by Bhagwati J. in Hasia is as follows: “If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation an instrumentality or agency of Government.”
Further, in Unni Krishnan, JP v. State Of Andhra Pradesh, a 5-judge bench of the Indian Supreme Court was required to consider whether Article 14 applied to private educational institutions. In his concurring opinion, Mohan J. observed:
“What is the nature of functions discharged by these institutions? They discharge a public duty. If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution, is a public duty that requires… [it to] act fairly.”
The duty to act fairly, that is, to treat persons equally and not discriminate (similar to Article 14 and 15 obligations) is based on the public function performed by the entity.
Though the SC has previously hinted towards it, there have been limited judicial attempts to exactly define the term ‘public function’.
“Although it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.” (G. Basi Reddy v. International Crops Research Institute)
It is submitted that the ‘public function’ doctrine accounts for the increasing powers of private entities, and recognizes that fundamental rights are not just susceptible to violations from the government but also from dangerously powerful and opaque private entities. This evolving doctrine would have allowed individuals to more meaningfully exercise their fundamental freedoms—by ensuring protection from the arbitrariness and injustices of a greater number of actors.
However, this budding jurisprudence of functional approach was stunted by two major Supreme Court decisions in India. In the 2002 judgment of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, the Court further narrowed down the ‘agency or instrumentality’ test. Ruma Pal J. held that a body would only qualify as the State when in light of the cumulative facts, it was “financially, functionally, and administratively dominated by or under the control of the Government.” Mere regulatory control over the body would not suffice. The Court therefore entirely sidelined the ‘public function’ test and adopted a clear structural approach (with the key question being whether the body was structurally under the control of the government).
This position was further solidified in the case of Zee Telefilms v. Union of India. In that case, the petitioner had accused the Board of Control for Cricket in India (BCCI) of acting arbitrarily in terminating a broadcasting contract. The petitioner therefore claimed that the BCCI had acted in violation of Article 14; however, to prove that the BCCI could violate the petitioner’s fundamental rights, the petitioner first had to prove that the BCCI was a “State” within the meaning of Article 12.
By a majority of 3:2, the Court declined to accept the BCCI—a society registered under the Tamil Nadu Societies Registration Act, 1975—as “State” under Article 12. The majority’s reasoning was mostly based on the narrow test developed in Pradeep Kumar Biswas. Santosh Hegde J. noted that no part of the share capital of the BCCI is held by the Government and that State control over BCCI was purely regulatory in nature. The Court explicitly rejected the ‘public function’ test.
“Even otherwise assuming that there is some element of public duty involved in the discharge of the Board's functions even then…that by itself would not suffice for bringing the Board within the net of "other authorities" for the purpose of Article 12.”
The Court even rejected the contention that BCCI’s extensive control over cricket was in the nature of a ‘State function’.
“The State/Union has not chosen the Board to perform these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies’ own volition. In such circumstances when the actions of the Board are not actions as an authorised representative of the State, can it be said that the Board is discharging State functions? The answer should be no.”
It is submitted that the Court’s reasoning is untenable. The mere fact that the government hasn’t explicitly authorised a private entity to perform a function does not in any way take away from the public character of that function. Given the dynamic functioning of capitalist economies, it is only natural that certain private entities will end up performing functions that greatly impact the everyday lives of people. Does the mere fact that such functions were not outsourced under governmental mandate provide absolute immunity to private actors performing these functions? The Court’s reasoning fails to account for the growing threat that private capitalist enterprise poses to the fundamental rights of a citizenry.
However, it must be clarified that the Court in Zee Telefilms didn’t claim to leave an individual remediless. “Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226.” Article 226 empowers High Courts to issue to “any person or authority” an order or a writ for the enforcement of Part III rights. But, as Ananth Padmanabhan points out, “exclusion of BCCI from ‘State’ closed the door on fundamental rights review under Article 226 as well.” So now, though a person can file a writ petition before a High Court for the enforcement of a legal right by a non-State entity like the BCCI, they cannot bring a fundamental rights challenge against such non-State entity unless the entity is ‘State’ within the meaning of Article 12.
Twitter and the Public Function Doctrine
On 5 November 2019, Twitter permanently suspended the account of Sanjay Hegde, a Senior Advocate at the Supreme Court. This suspension was purportedly for two reasons:
The cover picture of Hegde’s account was a photo of August Landmesser taken on 13 June, 1936—which shows a large gathering of workers at the Blohm Voss shipyard in Hamburg. In the picture all workers have raised their arm in the Nazi salute, with the exception of Landmesser, who stands with his arms crossed over his chest. The photo is now globally seen as a powerful symbol of resistance.
Hegde re-tweeted a poem shared by CPI-ML member Kavita Krishnan. The poem was Gorakh Pandey’s ‘Unko phaansi de do’ which was written against the first death penalties meted out to two peasant revolutionaries in independent India.
As one would clearly observe, Hegde’s account seems to be suspended for indulging in speech that challenges oppressive power structures of fascism and the post-colonial capitalist state. Hegde then filed a writ petition before the Delhi High Court alleging that Twitter’s actions violate his freedom of speech and expression [Article 19(1)(a)] and the freedom to form associations [Article 19(1)(c)].
I submit that Twitter (and other social networking platforms such as Facebook, Instagram, and the like) perform a crucial public function and therefore must be amenable to a fundamental rights challenge through both Articles 32 and 226. However, it is important to recognise that given the judicial trends analysed above, it is unlikely that the courts will consider Twitter to be a ‘State’ under Article 12; and therefore an Article 32 challenge seems unlikely to succeed at least in the near future (for the reason that invoking a fundamental rights challenge through Article 32 requires the violator of that right to be a “State”).
On the other hand, Article 226 provides a wider scope to High Courts to issue writs for the enforcement of fundamental or legal rights. A writ can be issued for the performance of a public duty that may be imposed by statute, charter, common law, custom or even contract (Anandi Mukta v. V.R. Rudani). Therefore, it can be argued that a writ petition under Article 226 is maintainable against a private party which discharges a ‘public function’.
The question then is: does Twitter perform a public function? In Binny Ltd. v. V. Sadasivan, a two-judge bench of the Indian SC noted,
“A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies, therefore, exercise public functions when they intervene or participate in social or economic affairs in the public interest.”
The aforementioned definition of ‘public function’ is ambiguous and seemingly incomplete. Admittedly, laying down an exhaustive test for any doctrine is difficult (and perhaps also undesirable, because any self-proclaimed exhaustive test will in all probability fail to deal with the myriad situations that may arise in the future—and might, therefore, curtail necessary judicial discretion). However, I shall endeavour to lay down broad criteria that may be considered in determining whether or not an entity performs a ‘public function’:
Whether the entity performs a function comparable to sovereign functions. Functions such as policing, defence, and healthcare were traditionally limited to the sovereign domain. Therefore, if a non-State entity is performing functions regarding any of these domains, it can be said to be performing a “public function”.
When the entity regulates a profession or vocation of citizens. This becomes crucial because such regulatory control has a crucial impact on Article 19(1)(g) rights of citizens (that is, the right to practice any profession or carry on any occupation, trade or business). By this criterion, BCCI would fall under the ambit of “State” because of the pervasive control it exercises over a person’s cricketing career.
When the entity performs crucial social or economic functions. For instance, in Charu Khurana v. Union of India, the Indian Supreme Court held that a trade-union cannot deny entry to women; for doing the same will be violative of Articles 14 and 15 (the right to equality and non-discrimination), and Article 21 (which includes the right to dignity). Although the court doesn’t embark on this analysis, there is a persuasive case to be made with respect to the crucial functions trade unions play in enabling workers to access their socio-economic rights through collective bargaining power.
Whether individuals can meaningfully choose to opt-out of the control of that entity? Alternatively put, the court must look at how indispensable the role of the entity is with respect to the domain in which it operates. Twitter and Facebook have become indispensable to the social media sphere. Facebook is estimated to have 2.41 billion active monthly users. Twitter has become the most popular global “market place of ideas”. Today, crucial foreign and domestic policy decisions are announced on Twitter, even before they are conveyed through official media channels. In that sense, as far as social networking is concerned (which has become an inalienable part of modern-day life), companies like Twitter and Facebook enjoy a de facto monopoly—and are next to impossible to opt-out of.
At this juncture, I’d like to draw a parallel with Marsh v. Alabama, which is a decision of the US Supreme Court delivered in 1946. In that case, a private corporation was functionally operating a town. The question was, whether the corporation can be subject to constitutional standards of civil rights applied to the State? The Court had held that even though the town was private property, in the sense that it was owned by a corporation, yet the task of operating a town was a ‘public function’ and therefore the corporation would have to abide by fundamental rights standards.
As legal scholar Gautam Bhatia notes,
“In Marsh, one important reason why the Court held that First Amendment rights applied to the sidewalks and streets of a privately-owned company town, was the lack of a feasible exit option: people living in the company town couldn’t simply pack up and go elsewhere to engage in free speech and expression; thus, they would simply be denied any effective exercise of their constitutional rights, if the private owners’ property interests were allowed to trump the First Amendment. Or, in other words, the company-town was in a position where it effectively had exclusive power and control over the constitutional rights of a significant number of people. Consequently, the First Amendment applied.”
What is the nature, scope, and extent of the entity’s impact on fundamental rights? For instance, Twitter acts a significant medium to exercise Article 19(1)(a) and (c) rights (that is, freedom of expression and freedom of association). One can only look at the Arab Spring to see how revolutions spread across the Middle East and North Africa between 2010 and 2012, overthrowing several despotic rulers; and where so much of the resistance was built through the use of social media.
Therefore, it is clear that major social networking platforms serve as a crucial medium to express one’s thoughts to the masses (in an inexpensive and instantaneous manner), they help raise awareness—both domestically and internationally—against various forms of injustices, they are an important means of associating with like-minded people and expressing one’s solidarities, they enable a citizenry to directly petition their elected officials and build pressure. All these functions are crucial to the meaningful exercise of one’s fundamental rights. Given the drastic consequences of denying an individual access to these core socio-political benefits, it is submitted that Twitter and Facebook can prima facie jeopardise the exercise of fundamental rights. And if they choose to exercise such enormous power in an arbitrary manner, it is essential that courts step in as the sentinel on the qui vive.
Recently, the US Supreme Court in Packingham v. North Carolina was required to adjudicate upon the constitutionality of a legislation that prohibited sex offenders from the use of any social media. North Carolina had passed this statute to protect children from coming in contact with sexual offenders through social networking channels. In a unanimous judgment, the Court struck down the law as unconstitutional, being violative of First Amendment rights of the US Constitution. The Court made the following observations:
“By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”
The aforementioned five criteria are obviously not exhaustive, and courts may look at the cumulative effect of these factors to determine whether or not an entity is performing a ‘public function’. As I’ve argued, Twitter undoubtedly performs such a function, and the Indian judiciary now has an opportune moment to expand the protection of fundamental rights by allowing individuals to challenge arbitrary, discriminatory, or repressive actions of social media giants.
Views expressed are solely those of the author.
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About the Author
Parth Maniktala holds a Bachelors in English from Hans Raj College, Delhi University, where he also served as the President of the Debating Society. He has been recognized as one of Asia’s top 10 speakers at the United Asians Debating Championship held in Cambodia. He has also been the chief adjudicator of the annual national schools debating championship of Nepal. Apart from debating, he has a keen interest in cinema and literature. Currently, Parth is pursuing his L.L.B. Degree from Campus Law Center, University of Delhi, India.