STATE AND NON-STATE ACTORS: A DILEMMA ON APPLICATION OF FUNDAMENTAL RIGHTS

What is law? It is perennial question. Right since the days of the dawn of civilization, elders have explained the mystery to youngers in their own way; of course, subject to limitation of their own. Most of these said law to be divine revelation. May be Manu-Satroopa, Adam and Eve or Adam and Auwa stories are identical, and have been collected, collated and consolidated. Sruti, Smiriti, Bible or Quran are for Hindus, Christians and Muhammedans by Manu, Jesus christ and Hazrat Muhammad. During regime of powerful kings (crown), ‘the law’ was restricted to a law’ and Austinian and Benthamites, wrote in terms of ‘Law being command of soverign’. Law as it is posited (Positive Law). In Germany, Savigny stated law to be volkgeist, forgotten text, custom, law as found. Then came sociologists, Comte, Ihering, Duguit and Pound, describing Law in terms of its functions Kelsen came with grund norm’ theory. Realists advocated; law as applied by courts. A state is defined in International Law as an “Independent political entity” occupying a defined territory” “the members of which are united together for the purpose resisting external force and preservation of internal order.” As per the Supreme Court in the case of Yusuf Khan v. Manohar Joshi laid down the proposition that it is the duty of the state to preserve and protect the law and the Constitution and that it cannot permit any violent act which may negate the rule of law. 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 two fundamental premises: firstly, that with the increasing role of private enterprise and the decreasing role of the State, the fundamental rights would be violated more by the private enterprises than by the State; and secondly, the private enterprise itself will claim the fundamental rights as legal person such as corporations, including the multinational corporations. While these premises warn us against the possibility of reduced use and application of fundamental rights, they may not be able to cause any damage to them. In that context, merely by increasing the role of private enterprise, the State cannot absolve itself from the responsibility of honouring and safeguarding the fundamental rights. After seeing the above said views with respect to the applicability of Fundamental Rights as per the Constitution, it is submitted that with the changing dimension of society and economic interest of the populace there is the shift in the notion of the Court with respect to the definition of State and applicability of Fundamental Rights in the society. Post the arrival of private sector in India (Bharat) there is the demand of services and other need from the ever-growing private sector in India, this has resulted the Court to adopt the newer and contemporary jurisprudence with respect to redress the ever evolving demands of the society.