This article is written by Kumar Adarsh studying BBA LLB(Honours) at KIIT School of Law pursuing a course on Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho).
This article has been published by Sneha Mahawar.
The very essence of our constitution is inscribed in the preamble. The vision and objectives of the welfare state are to provide justice, liberty, equality, fraternity to the individuals, and the unity and integrity of the country. These objectives are given paramount importance as they fulfil the purpose of part III of the constitution which is the fundamental rights that have been enshrined to achieve the best life for every individual living in the country. Under normal circumstances, these rights are used against the state to safeguard the rights of the persons against the activities of the state.
The function of the government and the society has grown since the formation of the constitution of India. There have been instances where private entities are infringing the fundamental rights of the citizen. There have been instances where the government function has increased from governance to commercial activities and this growth has involved private entities. There are instances where the government and private entities are in agreement for specific purposes there are also instances where the private persons have been involved with the responsibility of exercising public duty so now if the private entity has infringed the fundamental rights of a person then can the application of fundamental remedies extend to use it against a private entity?
The scope of this article is to see the present legal position to ascertain in which instances the writ is maintainable against the private entity and under what circumstances the writ is not maintainable against a private entity through the decisions taken by the supreme court and high court in various cases.
The term State has been defined under Article 12 of the Constitution of India which mentions that the government of India(Center), the parliament of India, the government of each state, and the state legislatures are included as states whereas all the local authorities and other authorities should be either under the control of the government of India or within the territorial boundaries of India. The definition of local authorities is mentioned under the General Clauses Act of 1897.- Section 3(31) states that “Local Authorities” which is a municipal committee, district board, board of port commissioners, or other authority which is legally entitled to or which has been entrusted by the government or which is being controlled and managed by municipal or local funds. The panchayats, municipalities, and cooperative societies that have been expressly mentioned in the constitution would come under the scope of the local authority.
The other authorities which come under the states have not been mentioned in the constitution that’s why the supreme court with its interpretation has shed light on the other authorities aspect, for now, The Universities, Rajasthan State Electricity Board, ONGC, LIC, IFC, Airport Authority of India, Bharat Petroleum Corporation and various others institutions have been considered under the definition of the state. While some of the bodies which were not considered as the state are the Board of Control Cricket in India, NCERT, Political Parties, Judiciary, and private bodies with private duties are excluded from the definition of the state.
Yet the inclusion of various other bodies which could come under the definition of the state is still under scrutiny and it is also necessary to determine which instance can a private body be considered as a state and when a writ could be issued against the private person. This problem has been solved by the court which is mentioned below.
Instances where writ is maintainable against a private entity
The writ petition is maintainable against a private body in a few instances which has been inferred and decided by the Supreme Court of India and the High Courts in the following
In the case of Dr Anand Gupta v. Rajghat Education Centre And Ors. The Supreme Court has held that a writ petition can only be issued against a public authority but the writ of habeas corpus can be issued against a private body. the court has gone to the extent of giving the narrow interpretation of the words mentioned under article 226 where the terms such as a writ to “any person or Authority” for enforcement of the fundamental rights which is mentioned in Part III and “for any other purpose”. If the term any person or authority is given a literal interpretation then writ could be issued against the private entities and if any other purpose is interpreted in a literal sense then this would mean that all the private disputes like divorce, succession, etc would come under the purview of the writ. Therefore based on previously decided cases in the supreme court of India the court has emphasised the narrow sense of the interpretation of the above words which were earlier used to be followed by the British Court.
In the case of Dushyant Somal v. Sushma Shomal, a writ of habeas corpus was issued against a parent who kept the child with him illegally as per the order of the lower court the custody of the child was provided to the child’s mother.
From the above two cases, it is concluded that the habeas corpus is maintainable against private individuals and private bodies.
In the case of Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust & Ors v. V. R. Rudani & Ors the court has expressly dealt with the scope of the writ of mandamus. The court had held that the writ of mandamus can be issued to any person or authority if the person is performing a public duty or owing a positive obligation. It is immaterial if the public duty is conferred by any statute or regulation. while performing a public duty by a private body or any other body if any individual rights are infringed then the court shall consider the writ of mandamus and restore that right. this judgment has given a wide scope to the writ of mandamus the court has expressly mentioned that this writ should not be kept in the water-tight arrangement nor it should be made purely technical but it should be widened to the extent which could provide justice and the high court has the widest powers under Article 226.
Though in the light of the recent decision delivered by the High Court of Madras in Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Limited, HDFC Bank Limited, and Insurance Regulatory and Development Authority on 6 June 2019 the court has dealt with the scope of maintainability of the writ of mandamus. The court has stated that when the Insurance Act came into force it gave vast power to the insurance companies on basis of trust that the money would safely be utilised by them but these private companies abused their powers and due to this the insurance sector was nationalised which was brought under the control of the government of India and the insurance business was being conducted by the centre in the name of life Insurance Corporation and General Insurance Corporation of India. In the changing times, the state is now involved with socio-economic activities due to which the state is sharing some of its obligations to other bodies while having control over all the economic operations thus this connects with the monopoly exercised by the insurance companies which is now close to the state function.
Thus the rights of fellow citizens are being strained which is why the High Court can extend its power under Article 226 to remove the clutches of the legislature, executive, public agencies, and private agencies and protect the rights of the citizens. The term “for any other purpose” give the widest powers to the High Courts which is why the court had brought the private bodies performing public duties under the constitutional limitation and is made accountable to judicial review and the reason is that since there is a lack of effective control which has made private bodies acquire more power which is similar to public bodies where the public monopoly powers are replaced by private monopoly power. Therefore it was held that if any private body is imposed by a public duty then the court has the power to entertain the writ petition. The court will take action when the matter has a public law character and likewise the court will abstain from the matter when there is a private law character in the case.
Thus from the above cases, it is clear that public duty forms the most important criteria for the maintainability of the writ against private bodies.
Instances where writ is not maintainable against private individual entity
The writs that we see today are the prerogative writs used by the kings in Britain to enforce the legal remedy in special cases. Mostly the writs in Britain have been used against public bodies and not against any private bodies. The writs like Prohibition are not maintainable against a private entity because this writ is used only against a judicial and a quasi-judicial body.
The writ of Certiorari is used for judicially reviewing the lower court order thus it negates the question of maintainability of this writ against the private body.
The writ of Quo Warranto is not maintainable against a private body because it questions the qualification and authority of the person who is holding a public post under the government of state or government of India.
In one of the rulings of the Supreme Court of India, the court has expressly held in many cases including the case of Army School v. Smt. Shilipi Paul that the writ petition is not maintainable against a private body except the writ of habeas corpus could be issued against a private body.
Instances when writ could be issued against the private body
The above ruling and discussion, clearly state that a writ of habeas corpus and mandamus is maintainable against a private body when we consider the maintainability of the writ of habeas corpus it has no fixed conditions for issuance against a private body therefore the writ of habeas corpus can be issued against anybody at any point in time
When it comes to the issuance of mandamus against a private body then a private is entitled to perform a public duty who is acting on behalf of the government will be considered as a state within the meaning of Article 12 also the writ of mandamus is enforceable against this kind of private body only the bottom line is it has a public duty to perform.
The definition of the state and the extent of other authority is expanding day to day due to the activities of the government bodies having moved from governance to socio-economic activities. The changing times and changing activities of the government would require a need to increase the extent of the law to provide justice and protect the rights of the citizens. This is why after the madras high court judgment the private bodies having public duty are brought under the other authorities as a part of the definition of state under Article 12 of the constitution of India. A writ against these private bodies having public duty could be dealt with in the writ of mandamus and it is maintainable in the eyes of law.
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