• Legis Scriptor

The Doctrine of State Action – American Constitution

Authored By- Munis Nasir

Keywords- Constitutional Legislation, Protection of Rights, State Action


The State Action doctrine applies to the government and not to any private actors. According to the doctrine, the Constitution’s principles will only apply to the government. The doctrine came into existence during the late 1860s through the Fourteenth Amendment. In the early 1940s, the court drafted exceptions to the rule. State Action in the Indian Context has been embodied in Article 12 of the Constitution of India.


During the 1860s there was widespread exploitation of black slaves in the United States of America. The issues concerning the applicability of the constitutional legislation to private conduct rose. Thus, at the time of the proposal and ratification of the thirteenth and the fourteenth amendments, Congress passed a wide range of civil rights statutes designed to protect black people against the actions of both state officials and private persons. On which the Supreme Court indicated that Congress was not empowered to regulate the conduct of private actors as they provide damage to the black persons. In the case of United States v. Cruikshank,[1] the Court held that federal criminal indictments under the Civil Rights Act for the participation in lynching of black people were unconstitutional as applied to persons who had no connection with state governments. However, the issue was not finally settled until 1883 in the Civil Rights Cases. The facts and opinions of the Civil Rights Cases contain, directly or indirectly, the main conceptual issues of the state action doctrine.


It is known that the India’s Constitution is the lengthiest written constitution in the world, while the American Constitution is the shortest and the first written constitution in the world. Being the shortest constitution in the world, the original constitution does not mention the fundamental rights of the people of the United States of America.

The concept of State Action emerged through the Fourteenth Amendment and is now one of the basic principles of the Constitutional Law. According to the State Action Doctrine, the Constitution’s protection of rights and equality principle applies only to the government and does not bind any private actors with the exception of the 13th amendment which prohibits slavery. The doctrine favours the most appropriate way in which the Constitution might regulate private actors by imposing constitutional duties on them.

According to Murray Hunt, “the jurisdiction which is closest to the position favoured by the verticals is the United States and where a constitutional right is relied on in litigation between private parties, the Supreme Court has made clear that Courts must determine whether the activities of the private party alleged to have infringed the protected rights are sufficiently connected to the government to constitute state action to which the Constitution applies.”[I]


The first case in which the Court faced the question of how far the Fourteenth Amendment would reach into private affairs was the 1883 Civil Rights Cases.[2]It is the State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. In the early 1940s, the Court began on drafting a set of exceptions to the rule of state action which are as follows:

1. The public function exception

In 1944, in Smith v. Allwright,[3] the Court identified the operation of elections as an essentially public activity that would be responsible to constitutional standards, regardless of whether the primary election process was running by the private actors. Later in 1974, in Jackson v. Metropolitan Edison Co.,[4]the Court limited the public functions category to those activities which are exclusively the responsibility of the state.

With this from the 1940s to the 1970s the Court achieved a measure of stability and clarity in the category of “public function” exceptions to the state action doctrine.[II]

2. The entanglement exception

It is the category of exceptions that have been referred to as the most confusion when judges and scholars were referring to these types of cases. The question came about how much government involvement is required to transform a private act into an act of the state.

According to his exception, the Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

State Action in India

State action concept in the Indian context has not been expressly defined but has been embodied in Article 12 of the Constitution of India. Article 12 forms the Part III of the Constitution, which deals with fundamental rights. Fundamental rights are those rights which are guaranteed against the state.

Article 12 defines “the State,” which includes the Government and the Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India[5]. Later in courts of India a question arose whether the “judiciary” is meant to be included in the concept of state or not? The answer depends on the judicial functions and non-judicial functions of the court. In the case of Prem Chand Garg v. Excise Commissioner[6], it was held that the guarantee of the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights cannot be permitted to obtrude upon the jurisdiction of the Court, where exercise is necessary for doing complete justice.

It can be seen that various tests while analysing the states acts as a limitation upon the enlarged concept of State Action embodied in Article 12.


It can be seen that just like every doctrine, State Action doctrine too have exceptions. State action doctrine which was formed first in the United States of America is today prevalent in many parts of the world.

[1] 92 US 542 (1876) [2] 109 US 3 [3] 321 US 649 (1944) [4] 419 US 345 (1974) [5] THE CONSTITUTION OF INDIA [6] 1963 AIR 996, 1963 SCR Supl. (1) 885

References- [I] Murray hunt, The Horizontal Effect of the Human Rights Act, PUBLIC LAW 423-427 (1998) [II] III