Writ jurisdiction and private sector.

Indian citizens, under part-III of the Indian constitution are guaranteed certain fundamental rights, some of which are absolute in nature. Violation of any kind to these rights is intolerable. Citizens are provided with an option of filing a writ petition before the high court under article- 226 and in the Supreme court under article-32. This is done to ensure justice and to safeguard the public interest.

There are 5 types of writ which can be issued in a court of law and they are-

  1. Habeas corpus.
  2. Mandamus.
  3. Prohibition.
  4. Certiorari.
  5. Quo warranto.

The thing to consider is that these writs, generally, are enforceable against the state only. The Indian constitution under section 12 defines the state as a sector which is controlled or authorized by the government. Any entity falling outside of the state is considered as the private sector. Hence, writ petition cannot be filed against a private entity in most of the cases.

The court in, P.D. Shamsadani v. Union Bank of India, AIR 1952 SC 59, held that the fundamental rights are only enforceable against the public sector and simultaneously drew a distinction between the private sector and the public sector. 

Horizontal and vertical application.

Vertical application of fundamental rights means that the action or writ petition can be brought against state and state only, not against any private sector. Horizontal application of fundamental rights can be enforced against the private sector.

The state has huge power and authority vested in it, to avoid the misuse of such powers and to stop it to turn into an undemocratic and totalitarian state, the makers of the constitution deemed it necessary to make the state answerable for its action. The state is bound by the principles of non-discrimination, natural justice, and fairness. After the enactment of the constitution was the vertical application of fundamental rights was considered sufficient.

In, Babu and others v. Managing Director, Hindustan Teleprinters Limited (HTL), Chennai and others, 2013 (3) TMI 339 MADRAS HC, the petition was filed before the court to make the company liable for the ex-gratia amount which they had not given to the employees. The contention here was that initially HTL was a public sector organization but after some time the government disinvested its share in the company and it ceased to be a public undertaking. The challenge rose before the court that whether the writ of mandamus can be initiated against a private sector entity. The court held that since at the time of filing the writ petition the company was neither a public undertaking nor functioning under the government authority and hence it did not hold the company liable.

The court in several cases reiterated the fact that the petition related to a contractual matter dealing entirely with the private sector will not be entertained in the court of law. The court contended that matters relating to a private contract should be dealt with in civil court and the high court or supreme court does not have jurisdiction to deal with the said cases. The jury further added that the High Court can invoke its writ jurisdiction when only a public law remedy is involved.

Impact of liberalization, privatization, and globalization.

After the emergence of liberalization, privatization, and globalization in 1991, the distinction between the private and public sectors started diminishing. The growth of the private sector led to more power in their hands, the continuous dereliction of the state control also worked as fuel to fire. People slowly started recognizing their rights and that these rights can and are violated not only by the state but the private bodies as well. To protect the rights of an individual in such cases, the horizontal application of fundamental rights was implemented.

There are some fundamental rights under article- 15, part-III of the Indian constitution which prohibits discrimination on the grounds of sex, caste, race, which even the private sector cannot violate. If it does so it will be held liable. Similarly under articles 12, 21, 23, 24 horizontal application of fundamental rights are applied and any kind of violation punishes both private and public sector equally.

Privacy of an individual because of advancing technologies is also one of the very important reasons for the horizontal application of fundamental rights. If actions are not taken by the court against the private sector, then it will further encourage them to manipulate people. Article-21 of the Indian constitution protects the personal liberty of individuals, in modern times personal liberty also includes the right to privacy. The application of article -21 is not restricted to the state but also the private sector. Similarly under article-19 also private entities can be held liable.

In Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011, the court stated that the safety of women at the workplace is also their fundamental right and its violation can be brought against both the public sector and the private sector.

The citizens can file a writ petition under article-32 of the Supreme court against the public sector for the violation of their fundamental rights but this right is only applicable to the public sector and its applicability by the private sector is limited only.

There should be a mechanism where the private sector should be held liable as there is misappropriate power vested with them and hence they can misuse their power easily to violate the fundamental rights of the citizens. The court should enforce the horizontal application of fundamental rights in full form.  

Major case laws.

In State Of Punjab v. Raja Ram, it was held by the court that a society registered under the Societies Registration Act, is not a state, unless it can be held that the society is an instrumentality or agency of the state or exercised statutory powers to make the rules, by-laws, or regulations having statutory force.

In Mehta M.C. v. Union Of India (oleum gas leak case), the Supreme Court though granted relief to the petitioner against the violation of Article 21by a Company but in this case, Supreme Court left the question open “whether a company was a state.

In Kamala Gaind (Smt.) v. State of Punjab, it was held that equality before the law means that all the persons, be the citizens and non-citizens to be given equal protection of laws and laws to be equally administered and the like to be treated alike.

In Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011, the court stated that the safety of women at the workplace is also their fundamental right and its violation can be brought against both the public sector and the private sector.

The court in, P.D. Shamsadani v. Union Bank of India, AIR 1952 SC 59, held that the fundamental rights are only enforceable against the public sector and simultaneously drew a distinction between the private sector and the public sector.

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