Rights: Breadth, Scope and Applicability

Rights: Breadth, Scope and Applicability

in The Oxford Handbook of the Indian Constitution
Edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta
Oxford University Press
2016

This chapter asks and answers three important questions: against what kinds of “state” entities are fundamental rights applicable (the “actor” question); the forms of “state” action that stand subject to scrutiny (the “form” question); and the effect of unconstitutionality on the validity of a law (the “effect” question). It specially focuses on the actor question due to obfuscations surrounding the right response. Mapping the judicially expounded definitions of “state” for purposes of the fundamental rights chapter, ie. Part III of the Constitution, through the times, the chapter argues that the structuralist definition that came to hold sway post the BCCI verdict needs re-evaluation as it is both over- and under-inclusive. Instead, the idea of “agency”, relied upon in some of the earlier verdicts, needs further development to render the enquiry (of whether an entity is “state”) a functionalist one that closely examines what the body does rather than how it is structured. Structure can at best raise a set of prima facie presumptions on the applicability, or otherwise, of fundamental rights but can never be a decisive enough test, opening itself up as it does for gaming the structure to defeat individual rights and interests.