Ministry puts foot down

The Law Ministry has opposed a suggestion from the National Commission to Review the Working of the Constitution that private entities perfo...

The Law Ministry has opposed a suggestion from the National Commission to Review the Working of the Constitution that private entities performing public function be brought within the ambit of Article 12 to safeguard public interest. The Ministry believes the amendment would make private firms non-competitive in the new economic environment.

‘‘This (rejection) will protect the freedom of private sector companies and entities to continue to act on commercial principles,’’ the Ministry said. The commission, set up by the NDA, had recommended that an explanation be introduced in Article 12 so that private persons or companies discharging public service be included in the definition of ‘‘state’’ so that they could also be held liable for violating the fundamental rights of individuals.

Its rationale — after globalisation and privatisation, traditional functions of a welfare state had transferred to individuals and private agencies. Thereby, fundamental rights and duties that bound the state also passed to them.

Story continues below this ad

While accepting that the inclusion held the advantage of removing arbitrariness in the functioning of the private bodies, the Law Ministry has argued that the ‘‘retrograde step’’ would adversely impact the economic situation and disinvestments and may cripple the economic environment further. It would delay decision-making in the private sector and could burden companies with regularising casual labour and ad-hoc staff.

Making fundamental rights enforceable against private bodies would also be against the concept enshrined in the Constitution that protection against violation of the rights by individuals must be sought in the ordinary law, the Ministry said.

The commission, headed by former Chief Justice of India M.N. Venkatachaliah, had former Law Commission Chairman B.P. Jeevan Reddy and former Attorney General Soli Sorabjee, among others. Its report, submitted in March 2002, made 249 recommendations of which 50 related to amendments to the Constitution.