LLM Foundation Course Indian Constitutional Law New Challenges 2023 Question Paper with Solutions

For full marks, cover: what the 1991 policy actually changed; why Article 12 was drafted for a different economy; the mechanism by which liberalisation narrows Part III, with BALCO as the proof; the three doctrinal routes available for redefining State, and which of them the courts have in fact taken; and a conclusion that answers whether redefinition is needed or whether the answer lies elsewhere.

What liberalisation changed. The New Industrial Policy of 24 July 1991 abolished industrial licensing for most industries, reduced the number of industries reserved for the public sector from seventeen to eight and later to three, opened most sectors to foreign direct investment, and began disinvestment in public sector undertakings. Since then the State has withdrawn from telecommunications, aviation, airports, ports, power distribution, banking in part, and increasingly from health and education, and it has re-entered many of these fields as a regulator and as a contracting party rather than as an owner.

The proof is BALCO. In BALCO Employees' Union v. Union of India (2002) 2 SCC 333 the Court upheld the sale of the Union's fifty-one per cent holding in Bharat Aluminium Company, holding that disinvestment is a matter of economic policy, that the Court has no expertise to sit in judgment over it, and that the employees had no right to be heard because no right of theirs was affected by a change of ownership. The constitutional consequence is stark and the Court did not deny it: an employee who on the day before the sale could have moved the High Court under Article 226 alleging a breach of Article 14 or Article 16 could not do so the day after, because his employer had ceased to be State.

The same problem in three other forms. One, public private partnership: an airport, a highway or a hospital run under concession performs a public function with State assets but is owned privately, and no test of pervasive control will catch it. Two, outsourcing: when a government department contracts out a service, the employees of the contractor are outside Article 16 and the users are outside Article 14 as against the contractor. Three, the regulated private monopoly: a private distribution licensee may be the only supplier of electricity in a city and yet, on Federal Bank Ltd. v. Sagar Thomas (2003) 10 SCC 733, extensive regulation is not control.

Route two, shift the question from what the body is to what it does. This is the route actually taken, and it runs through Article 226, not Article 32. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 SCC 691 held that a writ of mandamus lies against any person or body performing a public duty, whatever its constitutional status, because Article 226 extends to "any other purpose". Zee Telefilms itself preserved this remedy against the Board. K.K. Saksena v. International Commission on Irrigation and Drainage (2015) 4 SCC 670 supplies the limit: the duty must be a public duty, imposed by statute or by the nature of the function, and not merely a duty owed to members of the public under contract. This route has two weaknesses: it is available only in the High Courts and not under Article 32, and it enforces public duties rather than fundamental rights as such.

Conclusion. The need to redefine "State" arises because Article 12 measures a body by how far the Government owns and controls it, and liberalisation has reduced Government ownership without reducing the public importance of what the bodies do. The consequence, demonstrated by BALCO, is that Part III retreats every time a public enterprise is sold, though nobody voted to reduce fundamental rights. But redefinition by stretching "other authorities" is not the right answer and the Supreme Court has refused it, because control is the only principled criterion available and Zee Telefilms shows what happens when it is absent. The workable answers are the two the courts have in fact developed: the public function jurisdiction under Article 226, which asks what the body does rather than what it is, and the horizontal enforcement of Articles 19 and 21 recognised in Kaushal Kishor. Redefinition is therefore needed, but of the reach of the rights, not of the definition of the State.