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Judicial Controversy On Ascertaining The True Purpose Of Doctrine Of State Action: A Critical View (By: Arindam Shit )
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Judicial
Controversy On Ascertaining The True Purpose Of Doctrine Of State Action: A
Critical View
Authored By: Arindam Shit
(Bba Ll. B, 3rd Year, Alliance
School Of Law, Alliance University, Bangalore)
Abstract
The doctrine of State Action is still
considered as a mystery for the law practitioners and for the judges as its
true purpose has never been short out clearly by judiciary while interpreting
it. Moreover, it has been misunderstood many times while giving effect. It has
been stated by many scholars that this particular doctrine is without any
purpose which contains a set of arbitrary rules which holds back certain
constitutional protection such as equality, liberty and fairness. Professor
Charles Black also remarked this doctrine as “a conceptual disaster area”.
The Supreme Court of US has many a
time wrongly interpreted this doctrine due to which it is acting as a
limitation on the operation of fourteenth amendment. The SC observed that “the
state action doctrine preserves an area of individual freedom by restricting
the scope of federal law and federal judicial power”. This misinterpretation
has given rise to a judicial controversy as this view has been taken up other
judges in different cases. The focal point of controversy because an individual
or a private institution do not have a constitutional right to function in a
manner that is not bound by constitutional principles like equality, fairness,
and tolerance. From one end the SC has interpreted the concept too narrowly on
the other hand, some legal scholars gave this concept a broad interpretation.
Thus, this paper has been designed to
analyze the dichotomy between state and private action as well as to evaluate
the judicial controversy over the doctrine of state action to understand the
true purpose of the said doctrine. This paper has further developed to draw a
clear picture of fourteenth amendment and its operation which has also remained
in question for a long time.
Keywords: State-Action, Private-Action,
misinterpretation, controversy
Chapter 1
Introduction
General Introduction:
Law students, legal scholars,
lawyers, and judges are all unfamiliar with the state action doctrine. The
doctrine appears to be strangely without purpose, a collection of arbitrary
rules that obstruct constitutional protection of liberty, equality, and fairness
for no good reason. It is a key component of the Fourteenth Amendment—a
threshold requirement that must be satisfied before triggering protection of
our fundamental rights—but the doctrine itself appears to be curiously without
purpose, a collection of arbitrary rules that obstruct constitutional
protection Professor Charles Black described the state action doctrine as “a
conceptual disaster area”[1]
and scholarly commentary on it as “a torchless search for a way out of a damp
echoing cave”[2] nearly
four decades ago. Other legal scholars have called the state action doctrine “analytically
incoherent” and “a miasma” in recent years.
The Supreme Court has misinterpreted
the state action doctrine's purpose. "Careful adherence to the ‘state
action' requirement preserves an area of individual freedom by limiting the
reach of federal law and federal judicial power," the Supreme Court stated
in Lugar v. Edmondson Oil Co[3].
in 1982. Individuals and private organizations do not have a constitutional
right to operate free of constitutional norms mandating equality, fairness, and
tolerance, as the Supreme Court's justification for the state action doctrine
demonstrates. Privately owned restaurants are not allowed to discriminate based
on race under the law. Similarly, to how the Supreme Court misinterpreted the
state action doctrine by interpreting it too narrowly, several progressive
legal scholars have misinterpreted the doctrine by construing it too broadly.
The argument is that "state action is always present"[4]
because background principles of contract, tort, and property law unfairly
favor powerful individuals and organizations. Another common claim made by
progressive academics is that the Constitution requires the government to
protect its citizens from hunger, cold, and disease.
The fact that the state action
doctrine is four strands of doctrine rather than one adds to the difficulty.
The doctrine distinguishes "state action" from "private
action" in one way.
A different strand distinguishes
between "state action" and "state inaction." The
distinction between "mere repeal of a law" and "distortion of
the governmental process" is crucial in a third application of the
doctrine. The state action doctrine's impact on Congress' ability to enforce
the Due Process Clause and the Equal Protection Clause under Section 5 of the
Fourteenth Amendment is the fourth aspect of the doctrine.
Research
Problem
Supreme Court observed that the aim
of state action doctrine is not to “preserve an area of individual freedom.”
That is what the Fourteenth Amendment is all about. Instead, the state action
doctrine serves as a constraint on the application of the Fourteenth Amendment.
Individuals and private organizations do not have a constitutional right to
operate free of constitutional norms mandating equality, fairness, and
tolerance, as the Supreme Court’s justification for the state action doctrine
demonstrates. Which indicates that the Supreme Court misconstrued the state
action doctrine by interpreting it too narrowly; similarly, several progressive
legal scholars misunderstood and misconstrued the doctrine broadly, one major
issue arise from this point of view that “state action is always present”
because background principles of contract, tort, and property law unfairly
favors wealthy individuals and corporations. progressive academicians further
claimed that the Constitution imposes an affirmative duty on the government to
keep its citizens safe from hunger, cold, and disease. Both the views are
erroneous in nature, and the true purpose of this doctrine has never been
ascertained truly and fully, the purpose of the same remains in dilemma.
Review Of
Related Literature
·
In
an article issued by MHRD, govt. of India,[5]dealt
with the definition and concept of state action doctrine, where it has been
stated that the Indian Constitution forbids the state from interfering with an
individual’s fundamental rights. The government cannot act arbitrarily,
irrationally, or unfairly. The state cannot impose unreasonable limitations on
an individual’s fundamental freedoms and to limit someone's right to life and
liberty, the state must follow a just, fair, and reasonable procedure as held
in Maneka Gandhi v. Union of India[6].
·
In
a research article by Pratik Gandhi,[7]
the author has established a comparative study to move beyond expository
approaches and look to newer jurisdictions for relevant information in this subject
matter. He further establishes India’s novel legal position, which makes it an
appropriate comparative case study in this regard. On the one hand, no Indian
authority has ever explicitly referred to the horizontal and vertical
approaches defined by American and European legal academics.
·
Further
in an article by Richard S. Kay,[8]
the author has taken the view drawn by C.J. Marshal in Marbury v. Madison
[9] and further established that the
reach of the "state action" doctrine in connection with certain
provisions of the Constitution, most notably the Equal Protection and Due
Process Clauses of the Fourteenth Amendment, is the most directly relevant.
These provisions have been interpreted to apply only to the infliction of
injuries that can be traced back to a "state." The infliction of
similar injuries by private individuals is unregulated by constitutional rule
under this doctrine. The author also discusses the distinction between public
and private manifest and stated that The public-private distinction is implicit
in courts’ common refusal to interpret constitutional rules as imposing
affirmative duties on the state.
·
In
a Journal article by Bruce H. Jackson,[10]
the author has discussed about affirmative state action whereby he has marked
out that the fourteenth amendment’s state action doctrine can be conveniently
divided into two categories: cases where the state or an agent of the state has
directly and affirmatively acted, and cases where the state has become
significantly involved in the actions of a private individual, thereby making
the individual’s actions those of the state.
·
Another
article by Wilson R. Huhn,[11]
deals with the actual essence and purpose of state action doctrine. The author
has tried to establish the true purpose of state action doctrine by analyzing
various judicial pronouncements and scholars’ view. According to the author due
to the divergent view drawn by the supreme court regarding this doctrine the
true meaning and purpose of this doctrine has never been established correctly.
Objective:
1. To find out the reason for divergent
decision given by Supreme Court over the doctrine.
2. To understand the true purpose of the
doctrine of State Action and its applicability.
3. To find the marginal error while
ascertaining the purpose of the said doctrine.
4. To compare the applicability of this
doctrine globally and its interpretation in different country.
Hypothesis:
The researcher on his opinion that both
liberals and conservatives are mistaken in their interpretation of the state
action doctrine because they both misunderstand the doctrine's purpose.
Conservatives are mistaken because the state action doctrine was never intended
to be used to protect either individual or state rights. Liberals are mistaken
because the Constitution was never intended to be used to regulate individual
behavior or to guarantee governmental benefits.
Scope And
Limitation:
The ambit of this research includes a
critical view of the doctrine of State Action supported by various judicial
pronouncements and divergent views of prominent jurists and scholars in the
field. The researcher in this paper has taken the Indian legal framework as
standard and comparison has been drawn while taking in consideration the
practice of USA, UK, and Canada. Further the research is limited to ascertain
the purpose and applicability of this doctrine truly and fully and not
otherwise. Also, this research work includes an analytical approach to magnify
the legal validities of State Action doctrine with respect to law of the land.
Methodology
The researcher in this paper used
doctrinal method of research throughout. The paper is divided into various
chapters to deal with the statement of problem with different aspects. All the
data and judicial decisions stated in this paper has been extracted from
relevant sources only and a major weightage has been given judicial
pronouncements from U.S Supreme Court and Indian Supreme Court to reach to the
conclusion. The researcher has further referred to various national and
international journals to explore the views of other research scholars and
interpreted to make his decision.
Chapter 2
State
Action Private Action Dichotomy
The first aspect of the state action
doctrine emphasizes the word ‘state,’ and it is the idea that, with one
exception, the Constitution does not prescribe how private individuals or
private organizations should treat one another; rather, the Constitution only
applies to governmental action.[12] The
original Constitution's text makes it clear that it is a law that governs
governments, not individuals. Articles I, II, and III of the United States
Constitution establish the legislative, executive, and judicial branches of the
federal government, respectively, while Article I, Sections 9 and 10, and
Article IV define the federal and state governments’ respective powers.
The Bill of Rights and the Fourteenth
Amendment are both framed as limitations on government power. The First
Amendment declares that “Congress shall make no law,” while the Fourteenth
Amendment declares that “no state shall make or enforce any law.”[13] Furthermore,
the framers of the Constitution believed that the document was meant to serve
as a blueprint for government. In the foundation case of Marbury v. Madison,
Chief Justice John Marshall, who must be counted among the framers, observed
that the Constitution “organizes the government, and assigns, to different
departments, their respective powers.”[14] The
Constitution, on the other hand, makes no attempt to dictate how one person
should treat another. It is not a violation of the Constitution for one person
to steal another's possessions, assault another person, or even murder another
person, according to the Constitution. The commandment contained in the
Thirteenth Amendment is the sole exception to this generalization.
In the United States, there is one thing that
no one may do to another person: no one may enslave another person. Apart from
cases involving slavery, the state action doctrine makes it necessary to
determine whether the act complained of was committed by the government or by a
private individual in cases arising under the Constitution. [15]
2.1. Criticism to SC’s decision on
State Action and Private Action:
In most cases, the major question
revolves around is whether the act complained of was “state action” or “private
action” is obvious. The adoption and enforcement of laws, as well as the
promulgation and application of policies by public officials, clearly
constitute state action, whereas the vast majority of civil and criminal cases,
from common automobile accidents to corporate employment policies, clearly
demonstrate that the defendants’ actions are entirely private. However, in many
cases, it is unclear whether the alleged act was carried out by the government
or by a private citizen. These are cases in which private parties have been
allegedly imbued with governmental power and have abused it.[16]
The factual circumstances of state
action cases are diverse, and the standards that have evolved to resolve these
cases are similarly diverse. The Supreme Court has generally stated that a
private party will be considered a “state actor” in cases where the government
was "significantly involved" in the defendant's actions, or, to put
it another way, where the defendant's actions are "fairly
attributable" to the government.[17] The
Supreme Court has identified a number of subcategories of state action based on
the evaluation of recurring patterns of relationships between private and
governmental bodies under these two general standards. The Court has
established a rule for determining whether or not the behavior in question is
state action for each pattern of state action it has defined. Furthermore, the
Court has recognized an antithesis that does not constitute state action for
every fact pattern and accompanying rule of inclusion within the concept of
state action.
The Supreme Court has ruled that
simply entering into or performing a contract with another person does not
constitute state action.[18]
When a person uses the judicial system to enforce a contract, this is
considered state action, and the contract must be enforced in accordance with
the Constitution's procedural and substantive requirements. Similarly, it is
not state action when the law simply acknowledges or accepts an individual's
preexisting right or power.[19] State
action occurs when the government coerces, encourages, or influences one person
to violate the rights of another. Basically, there are two approaches to
justify certain test relating to state action doctrine. The conservative wing
of the Supreme Court, led most recently by the late Chief Justice Rehnquist,
prefers a “rule-oriented” approach to state action analysis, to determine
whether or not the challenged party is a state actor. The liberal wing of the
Court, on the other hand, uses a “totality of the circumstances” test to make
this determination. Burton v. Wilmington Parking Authority[20]
is the seminal case utilizing the "totality of the circumstances"
test, in which the Court stated that “only by sifting facts and weighing
circumstances can the nonobvious involvement of the State in private conduct be
attributed its true significance.” In numerous cases, the Supreme Court has
wavered between a rule-based approach and a totality of the circumstances
approach.
The Supreme Court’s reasoning in Blum
and Rendell-Baker was skewed toward protecting "individual freedom,"
a private nursing home does not have a constitutional right to change the level
of medical care provided to a patient without consulting the patient or the
family, and a private school does not have a constitutional right to fire
teachers for criticizing the administration. In state action cases, the task of
the courts is not to protect the individuals and private organizations who
commit these acts from government regulation, so there is no reason to
interpret the state action requirement narrowly. Rather, the Court’s task is to
determine the extent of the government's involvement in the challenged acts in
order to determine whether they are subject to constitutional scrutiny. Because
the nature of government involvement in any given case can take many different
forms as a result of various combinations of factors, the "totality of the
circumstances" test is more appropriate for determining whether private
parties are involved in state action than the "rule-oriented
approach."[21]
2.2. Critique to progressive scholars
in consideration
Even the "totality of the
circumstances" test, according to a number of progressive legal scholars,
is insufficient to capture the meaning of the state action doctrine because
"state action is always present." As evidenced by the text of the
Constitution and its early interpretations, the framers believed there was a
distinction between government and private action. The Constitution requires us
to draw a line between state and private action, and this line must be drawn,
even if it is subject to fair debate in difficult cases.[22]
There is no denying that there is a spectrum between state and private action,
and the multivariate factors that can influence that judgement make it a
particularly difficult calculation. Finally, the decision should be based on
the extent or degree of government involvement in any given event. The Supreme
Court currently believes that background principles of law allowing individuals
to enter into contracts and statutes subjecting businesses to extensive
governmental regulation do not turn these private entities' actions into state
action.[23] Is
it fair to say that private individuals and organizations have more power over
us than they did over our forefathers, or that we face greater challenges in
controlling the exercise of private power than they did? Colonial America had a
“virtual aristocracy” that dissolved slowly in the Revolutionary War’s
cauldron.
Framers who formed the “Slave Power”
dominated southern society and subjugated half of the population in the early
nineteenth century.[24]
The Robber Barons attempted to seize control of the nation's economic
life in the latter half of the nineteenth century. [25] However,
the people eventually found a way to rein in these oppressive accumulations of
private power by expanding the franchise, outlawing racial and gender
discrimination,98 and regulating business and industry through the democratic
process.[26] People
will be able to regulate powerful private interests as long as the democratic
process remains strong, and it will not be necessary to rely on the Supreme
Court's interpretation of the Constitution to do all of the work. Controlling
private power abuses is up to the people acting through the democratic process.
This is where the framers put the power and responsibility,[27]
and the Court should interpret the state action doctrine in a way that
preserves this area of democratic choice.
Chapter 3
Practice
And Adoption Of State Action: A Comparative View
The Civil Rights Cases[28]
in 1883, when the Civil Rights Act of 1875,[29]
prohibiting racial discrimination in public accommodations, was declared void,
based on the determination that the fourteenth amendment-imposed restrictions
only against the states, began statutory construction of the fourteenth
amendment's limitations. The Supreme Court ruled that unsupported by State
authority in the form of laws, customs, or judicial or executive proceedings,
civil rights, such as those guaranteed by the Constitution against State
aggression, cannot be harmed by wrongful acts of individuals. Unsupported by
any such authority, an individual's wrongful act is simply a private wrong, or
a crime committed by that individual.
When there was a clear indication
that the state was involved, this restriction was simple to implement. The
state action requirement was met where the alleged deprivation was caused by
the actions of a state agency or official, or involved a state law, regulation,
or rule." However, there were times when determining whether the
alleged wrongdoing was the result of state action was more difficult. In the
mid-nineteenth century, the state action doctrine was further developed. During
this time, the Supreme Court began to formulate theories for determining when a
private actor's actions could be prohibited under the 14th Amendment.
"[30]
Two tests have emerged: "public function" and "private
function."[31] The
question of whether a private individual is performing a government function is
put to the test. And the second one the "state involvement or
encouragement" theory is based on the notion that a private actor can
become so involved with or encouraged by the state that his actions are
considered state action."[32]
3.1. State Action and State inaction
The state action doctrine makes
another distinction by emphasizing the word "action."[33]
State inaction, according to the Supreme Court, is not the same as state
action. This aspect of the state action doctrine is understood to mean that,
while the Constitution prohibits the government from exceeding its
constitutional powers or infringing on individual rights, it does not require
the government to take any specific action in most cases. Judge Richard Posner,
who has described the Constitution as "a charter of negative rather than
positive liberties,"[34]
agrees with this viewpoint. Understanding the difference between state action
and state inaction requires understanding the democratic choice principle. The
democratic choice principle states that the people, through their elected and
appointed representatives, have the authority to legislate on civil rights and
social welfare benefits, and to decide how far they want to go beyond the
constitutional baseline in each area.
The concept of the "neutral
state" is consistent with the idea that the state has no affirmative
duties in terms of civil rights or social welfare rights. While the concept of
the neutral state is no longer considered constitutionally required, the
neutral state now serves as the default position of American government in the
absence of affirmative legislation as a result of the Court's current
interpretation of the state action doctrine. The distinction between
"state action" and "state inaction" has the result that
there is no constitutional right to governmental benefits in the case of social
welfare rights.[35] This
means that the people, acting through the democratic process, have complete
discretion over how generous they want to be with public funds. The idea
that the government has "no affirmative duty" to provide benefits has
been referred to by the Supreme Court.[36]
3.2. practice of State Action in
India:
The Indian Supreme Court has
consistently followed the vertical approach, holding that the protection of
fundamental rights enshrined in Part III[37]
is limited to the 'state' and not to private individuals. P.D. Shamdasani v.
Central Bank of India[38]
was the first case in which the Supreme Court addressed this issue. In this
case, the petitioner's shares in the bank were sold off while the bank
exercised its right to lien. As a result, the petitioner went to the Supreme Court
to assert his fundamental right to property against the Bank under Article
19(1)(f) and Article 31. The petition was dismissed by the constitutional bench
because fundamental rights are not enforceable against private actors,
according to Patanjali Shastri, J.
While ruling on the application of
Article 19's freedoms to private individuals,[39]
Shastri, J. examined subsequent clauses of Article 19 and noted that because
the clauses' restrictions were the sole prerogative of the state, this
provision contemplated infringement through state action. Because the language
of Article 31 is similar to that of Article 21, Shastri, J. observed that these
rights can only be limited by "procedure established by law" or
"express authority of law," thus confining their protection against
the State. In A.K.Gopalan v. State of Madras,[40]
Shastri, J. expressly dismissed the question of whether fundamental rights
should be applied to non-state actors.
The Supreme Court later relied on the
reasoning in these cases in Vidya Verma v. Shiv Narain Verma[41].
The petitioner sought to have the writ of habeas corpus against her father
enforced in this case. Bose, J., rejected the argument, citing the decision in
Shamdasani and Gopalan, and stating that "a person whose property rights are
infringed by a private individual must seek his remedy under the ordinary law
and not under Article 32." Several Indian High Courts have followed the
precedent set in the Shamdasani and Shastri's Gopalan observations. In Krishna
Madhaorao Ghatate v. The Union of India[42],
Dharmadhikari, J., of the Bombay High Court, while dealing with a writ of
habeas corpus, observed that a private individual's violation of a right to
personal liberty is not within the purview of Article 12 and is thus governed
by Article 21 of the Constitution. As a result of the above capitulation of
Indian judicial trends, we can safely conclude that Indian courts have
consistently maintained a narrow view of the application of fundamental rights
against non-state actors and have followed a strict vertical approach.[43]
The vertical approach has been
adopted by the Supreme Court of India, but it has been subject to several
exceptions. Fundamental rights such as Articles 17, 23, and 24 of the Indian
Constitution have been recognized by the Supreme Court in several decisions as
exceptions to the general rule that can be enforced against nonstate actors.
The Abolition of Untouchability is addressed in Article 17 of the Indian
Constitution.[44]
Articles 23 and 24 deal with the prohibition of human trafficking, forced
labor, and the employment of children in factories, respectively. In Sukhdev
Singh v. Bhagatram[45],
the Supreme Court stated: "Articles 17, 23 and 24 postulate that
fundamental rights can be violated by private individuals, and that the remedy
under Article 32 may be available against them."[46]
In fact, the Supreme Court has made an exception to the general vertical
approach by including Article 21, which deals with the right to life and
personal liberty. 30 The prohibition of discrimination in Article 15(2)[47]
has been extended to private individuals.
4.
Conclusion
The fundamental value served by the
state action doctrine is "democratic choice," not "individual
freedom." Because the Supreme Court has failed to recognize this, the
state action doctrine has been misinterpreted and applied in a variety of
cases. The Reitman-Romer line of authority, which authorizes "mere
repeal" of anti-discrimination legislation but prohibits restructuring of
the governmental process to the detriment of minority groups, is the only line
of authority whose results are fully consistent with the principle of
democratic choice. Left-wing critics have also failed to recognize that the
state action doctrine's goal is to strengthen democracy, and as a result, they,
like the Supreme Court, have misunderstood the distinction between state and
private action. Although the exercise of private power can be oppressive, it is
up to the people, acting through the legislature, to determine the conditions
and extent to which private power is regulated. The people, according to the
state action doctrine, have the primary responsibility for deciding whether and
to what extent fundamental principles of fairness, tolerance, and equality
should govern the actions of private individuals and organizations. For the
same reason, progressive legal scholars overlook the significance of the
distinction between state action and inaction. The state action doctrine
asserts that the people alone have the final say in determining the type and
extent of government services that they will fund with their tax dollars. Legislative
grace, not constitutional right, governs social welfare policy. The errors of
both the Supreme Court and its critics become obvious once it is understood
that the state action doctrine serves and is controlled by the principle of
democratic choice, and the doctrine emerges as a rational and coherent building
block of our democracy.
5.
Suggestion & Reforms
Most of the answers can be derived
from understanding the problems that pervade state and federal court decisions,
so creating a new state action test does not require much imagination. A test
should not be limited to any one factual situation as much as possible. This
solves the Burton problem, which has perplexed potential users of the theory
who have been unable to overlook the symbiotic relationship test's factual
limitations. A multiplicity of connections is the first factor that should be
present in the state/private actor relationship.[48]
This is an extension of the nexus test, which does not consider multiple
connections. However, the Court should not only consider the quantity of
connections, but also the quality of those connections. If many minor connections could pass the
first hurdle, there would be inherent unfairness. As a result, the quantity and
quality factors should be balanced in the first investigation. The quality
requirement will have been met if a few connections between the state and a
private actor involved a compelling argument for interdependence. However, if
there were many minor connections, the investigation would end, and no state
action would be possible. It should now be clear that there is an analytical
framework within which all factual circumstances can be viewed while
maintaining consistency. The new theory is well suited to this area of law
since it can encompass an infinite number of factual circumstances. State and
federal courts would no longer have to rely on a haphazard search for parallels
between a jumble of previous decisions and the case at hand. Instead, the
courts will be able to do exactly what the US Supreme Court intended: they will
be able to apply the test on a case-by-case basis.
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Article Information
Judicial Controversy On Ascertaining The True Purpose Of Doctrine Of State Action: A Critical View (By: Arindam Shit )
Author Name: Arindam Shit
Title: Judicial Controversy On Ascertaining The True Purpose Of Doctrine Of State Action: A Critical View
Email Id: arillb116@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/06/30
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