This article has been written by Ms. Vaaghdevi, a student studying B.A.LLB from Damodaram Sanjivayya National Law University, Visakhapatnam. The author is a 1st-year law student.
Introduction
The preamble contains the essential substance of our constitution. Justice, liberty, equality, and brotherhood for all people as well as maintaining the unity and integrity of the nation are the vision and goals of the welfare state. These goals are given top priority because they accomplish part III of the constitution’s goal of enshrining fundamental rights in order to provide every citizen of the nation with the best possible quality of life. Under typical situations, these rights are employed against the state to protect individual rights from state actions. In accordance with the circumstances, Article 226 gives the high courts the ability to issue directives, orders, or writs, including writs of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them, to any person or authority, including the government.
Habeas Corpus – The definition of a writ of habeas corpus according to a basic dictionary is “a writ forcing a person under arrest or in an illegal detention to be taken before a judge or into court, primarily to secure the person’s release until lawful grounds are demonstrated for their incarceration.”
Prohibition – A writ of prohibition is typically issued to stop a lower court or tribunal from going beyond its authority in cases it is currently hearing or from behaving in a way that is not consistent with the principles of natural justice.
Quo warranto – – This merely denotes “by what authority?” This writ is being issued to look into whether a person’s or public office’s claim is legitimate. It prevents the assumption of public office by anyone by preventing the person or authority from acting in a position to which he or she is not authorised. This writ only applies to public offices; private offices are not covered by it.
Certiorari- Certiorari means “to be certified” in Latin. For the purpose of overturning a decision already made by a lower court, tribunal, or quasi-judicial body, the Supreme Court or any High Court may issue a writ of certiorari.
A government entity receives a mandate and a certiorari (both statutory and non-statutory). The scope of “authorities” that fall under the purview of “state” as they are used in Art. 12 includes entities with such a nature. Thus far, they have been distributed to:
- statutory organizations like the Warehousing Corporation and the International Airport Authority. Government agencies that are not statutory are registered under the Companies Act. a legally recognized society that the government sponsors supports, and regulates.
Only for the purposes of Art. 32, which is restricted to the enforcement of fundamental rights, is the narrow government instrumentality approach under Art. 12 relevant. Writs may be issued “for any other purpose” in addition to the enforcement of basic rights, according to Article 226. As a result, the term “authority” in Article 226 is granted more latitude than the term “other authority” in Article 12 and, consequently, writs under Article 32.
In the past, mandamus and certiorari have been granted under Art. 226 to organizations that are not considered to be government instrumentalities, as well as when they provide public utility service, are enforcing a legal obligation, or are carrying out a specific statutory task. So, a writ may be granted to a business, cooperative society, or even an individual when they carry out legal obligations, conspire with the government, perform charitable work, etc.
The jurisprudence is divided according to the factors that the courts take into account while determining whether Article 226 is applicable. The nature of the organisations in question and the purposes they serve are the two main areas that courts have examined. The Supreme Court finally decided to broaden the scope of Article 226 by interpreting “any authority” to include “any person or body executing public duty.” We’ll investigate these aspects using the court rulings.
Certiorari has been granted to a great number of diverse organizations that perform some sort of adjudicatory role, including industrial tribunals, disciplinary committees, and courts-martial held in accordance with the Army Act of 1950.
Judicial pronouncements
- Government instrumentality discourse
In the following cases, the court identified an element of a government instrumentality
Master Vibhu Kapoor v. Council of Indian School Certificate Examination, AIR 1985 Del. 142
A society under the Societies Registration Act is the Council of Indian School Certificate Examination. It performs the public service of educating people. The council is profoundly imbued with a governing personality, both formally and operationally. It has been claimed that the council serves as a state tool.
U.P. State Coop. Land Development Ltd. v. Chandra Bhan Dubey. AIR 1999 SC 753
According to Art. 12 of the Constitution, the U.P. State Co-operative Land Development Bank Ltd., which was established under the Bank Act but operates as a cooperative society under the Societies Act, is an “authority.” Hence, writ petitions submitted by its fired workers to contest the dismissal decisions were found to be maintainable.
- Liberation interpretation beyond government instrumentality under Art. 226
In order to prevent any entity from abusing its authority by exempting itself from the accountability guaranteed by writ petitions, courts have developed various ways to broaden the scope of “authorities” under Art. 226. The nature of obligations and the performance of parties’ constructive obligations have been highlighted
Sohan Lal v. Union of India AIR 1957 SC 529
In most cases, a private person is not the target of a writ of mandamus or an order in the type of mandamus. Halsbury’s Laws of England, Vol. 11, Lord Simonds Edn., p. 84. Such an order is made against a person commanding him to execute some specific thing, stated in the order, which corresponds to his job and is in the nature of a public obligation. If it had been established that the Union of India and the appellant had conspired and that their transaction was merely colorable and entered into with the intent to deny Jagan Nath his rights, it might be deemed to be within the appellant’s jurisdiction to obtain a writ or obtain an order of mandamus. Against the appellant might be said to exist in a Court.
Engg. Mazdoor Sabha v. Hind Cycles Ltd. AIR 1963 SC 874
Even if he cannot be compared to a tribunal that is amenable under Article 136 of the Indian Constitution, it was decided that an arbitrator appointed in accordance with Section 10-A of the Industrial Disputes Act is not a private arbitrator. The Court determined that a writ of certiorari could be maintained against the arbitrator because, in carrying out his duties, he assumes some of the characteristics of a judge. As a result, an arbitrator working under Section 10-A of the Industrial Disputes Act performs public duties despite being private. Thus, the ratio in the Constitution Bench’s ruling in Engg. Mazdoor Sabha and the ruling in Sohan Lal are consistent.
Conclusion
Due to the government bodies’ operations shifting from governance to socioeconomic activities, the definition of the state and the scope of other authorities are constantly expanding. In order to deliver justice and safeguard citizens’ rights, the law must be expanded in response to changing times and government operations. Because of this, private organizations with public duties are now included in the definition of the state under Article 12 of the Indian Constitution as of the Madras High Court verdict. A writ of mandamus could be used to deal with a complaint against these private organizations performing public duties, and it is legally maintainable.
References
- GOVINDARAJAN, M.M. (no date) Home , One stop solution for GST, Income Tax, FEMA, SEZ, Import-Export and Corporate Laws in India, a useful portal for Professionals, trade and Industry. Available at: https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=2088 (Accessed: February 20, 2023).
- Maintainability of Article 226 against private parties (no date) Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-10035-maintainability-of-article-226-against-private-parties.html (Accessed: February 20, 2023).
According to Article 226 of the Indian Constitution, the High Court has this authority to uphold any of the fundamental rights guaranteed by Part III of the Constitution or to pursue any other objective.
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