WRIT JURISDICTION AND PRIVATE SECTOR

The Part III of the Indian Constitution guarantees its citizen basic fundamental rights. The citizens can enforce these rights by filing a writ petition in Supreme Court and High Court under Article 32 and 226 of the constitution against any state action. The main purpose behind the bringing of various authorities within the realm of State under Article 12  is to acquire a speedy and competent remedy by invoking Articles 32 and 226 as against the action of the State. But can a citizen file a writ petition against private individual or authority ?

To answer this question, the judiciary has taken a very innovative step which has opened new vistas to the meaning of ‘State’ in Part III and thus stimulated the judiciary to protect the fundamental rights not only from the clutches of legislature and executive but also from ‘public’ and ‘private’ bodies. Even though various tests, such as constitutional and statutory authorities on whom powers are conferred by law, agency or instrumentality of State, functional realism and so forth were evolved by the Supreme Court from time to time for determining the ambit of ‘State’ under Article 12, still there is uncertainty and confusion. It is so because, if a body either private or public is brought within the purview of Article 12[1], it is subject to the constitutional limitations.

Article 226 empowers the High Courts to issue directions, orders or writs for the enforcement of Fundamental Rights and for any other purpose. Thus, the writ jurisdiction conferred on the High Courts by Art. 226 can be invoked to enforce not only a Fundamental Right but a non-fundamental right as well. The jurisdiction conferred on the High Courts under Article 226 is broader in range than that conferred on the Supreme Court under Article 32, for while the Supreme Court acts only when there is an infraction of a Fundamental Right, a High Court may act when a Fundamental Right or any other legal right is violated. The words “for any other purpose” enable the High Courts to exercise their power of judicial review for the enforcement of ordinary legal rights which are not Fundamental Rights.

The constitution places no limitations or fetters on the powers of the High Court except self-imposed limitations. But these limitations are not a rule of law, but a matter of convenience for judges to dispose of the cases and to indicate as to how discretion will be exercised. Some of such self imposed limitations are:

  • Alternative Remedies -In Veerappa v, Raman 1952[2], it was held that the Motor Vehicles Act, 1939 contains a complete and precise scheme for regulating the issue of permits and provides remedies for redressal of grievances and correction of errors, therefore, a person aggrieved by the refusal of a permit to him should first take recourse to the remedies provided under the Act and not straight way invoke Article 226. Similar was the ruling with reference to the Income Tax and Sales Tax. In a number of cases, the Supreme Court has held that where an action lies to the authorities under the Income Tax Act and Sales Tax Act, High Court may decline to interfere under Article 226 of the constitution,1954.
  • Unreasonable delay or Laches-A person who intends to invoke the extra ordinary jurisdiction under Article 32 or Article 226 of the constitution must approach the courts at the earliest possible time. Relief can be refused on the ground of inordinate delay or laches. But all depends on discretion of court like in Ramachandra Shankar Deodhar v. State of Maharashtra, 1974[3], a writ petition under Article 32 filed after twelve years of the accrual of the cause of complaint was still entertained by the Supreme Court. Article 32 or 226 does not prescribe any period of limitation.
  • Doctrine of res judicata (Res judicata means a matter adjudicated upon) is based on three maxims –

1. nemo debt bis vexari : No man should be vexed twice over for the same cause;

2. interest republical ut sit finis litium : It is in the interest of the state that there should be an end to a litigation;

 3. res judicata pro veritate occipitur : a judicial decision must be accepted as correct. The doctrine of res judicata does not apply in the case of Habeas corpus petitions.

  •  Authorities against whom writs may be issued: All the cases covered under Article 12. In a modern society, State has to undertake a multitude of socio-economic activities.

The decision of the Supreme Court in M. C. Mehta v. Union of India,1987[4] is a striking illustration, aftermath of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas leak and created a lot of panic in Delhi. The case lays down the principle of absolute liability and the concept of deep pockets. The question involved in this case was whether a writ could be maintainable under Article 32 against Shriram Foods and Fertiliser Industries, a private corporation, as ‘other authorities’ within the meaning of Article 12 so as to achieve the true spirit envisaged under Article 21 of the Constitution?

By virtue of the writ petition, the petitioner sought the help of Supreme Court to direct Shriram to pay compensation to the victims of oleum gas leak caused from one of its units, though another writ petition filed by Legal Aid and Advice Board and Delhi Bar Association for closure of certain units of Shriram and replace it in a thinly populated area, was pending before the same Court. The Court examined the facts and issues involved in this case with the objectives of functional test, control test and human rights jurisprudence. Relying on functional test the court held that the activity of producing fertilisers and chemicals was deemed by the State as an industry of vital public interest, whose public importance necessitated that the activity should be carried out by the State itself, though in the interim period with State support and State control, private corporations might have been permitted to supplement the State effort. Here, Shriram was manufacturing chemicals and fertilisers which are so fundamental to the society and so it could be considered as governmental function.

An interesting remark of this case is that even without deciding Shriram as ‘State’ under Article 12, the court maintained the writ petition and laid down the rule of absolute liability of compensation to the victims by modifying the principle of ‘strict liability’ in Rylands v. Fletcher. In short, the Court held that since Shriram was engaged in a hazardous or inherently dangerous industry which posed a potential threat to the health and safety of the persons working in that concern and residing in the surrounding areas, the same should compensate for such harm and it was not in a position to avert its liability by saying that it had taken all reasonable care and that the harm occurred without any negligence on its part. The Court directed the Delhi Legal Aid and Advice Board to file actions in the appropriate court, on behalf of the victims of oleum gas leak, for claiming compensation against Shriram

  • Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani, 1989[5], the question in this case was whether the performance of a ‘public duty’ will make a private person or body amenable to writ jurisdiction even if they are not an authority within the meaning of Article 12 of the Constitution of India. The facts of the case disclose that the appellant decided to close down a college run by it as a measure to protest against a decision by the University of Gujarat to implement and award the revised pay scale of the teachers with retrospective effect. The appellant refused to pay the teachers the terminal benefits under an Ordinance of the University and the amount of arrears of salary under the award even after repeated requests. The teachers finally approached the Gujarat High Court under Article 226 and the petition was granted. In appeal before the Supreme Court also the main contentions raised on behalf of the appellants were: the Trust, being a private body was not amenable to writ jurisdiction of High Court under Article 226 and the awarding arrears of salary under the Chancellor’s award was under the liability of the Government and not of the management of the college.
  • The court found that the college was receiving monetary grants from the Government, discharging a public function by imparting education and activities of the institution were closely subject to the Rules and Regulations of the affiliated University. By giving due respect to these conclusions, Justice Jaganatha Shetty categorically held that if the rights are purely of a private character no mandamus can be issued. If the management of the college is purely a private body with no public duty, mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied.

CONCLUSION

Therefore, is can be said that a writ petition can be filed against a private individual or authority but is limited to ‘Public Duty’ meaning only when ‘Public Duty’ is called upon a private management a writ petition can be filed in High Court and Supreme Court under Article 226 and 32.


[1] THE CONSTITUTION OF INDIA (BARE ACT) Pg.10

[2] 1952 AIR 192, 1952 SCR 583

[3] 1974 AIR 259, 1974 SCR (2) 216

[4]  1987 SCR (1) 819, AIR 1987 965

[5] 1989 AIR 1607, 1989 SCR (2) 697

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