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.
Since India’s constitution was created, the role of the government and the society has expanded. There have been instances of private parties violating a citizen’s fundamental rights. In some cases, the role of the government has expanded from governance to commercial activity, and this expansion has involved private organisations. Can the use of fundamental remedies be made against a private entity if a private entity has violated a person’s fundamental rights? There are instances where the government and private entities have an agreement for specific purposes, and there are other instances where private individuals have been tasked with performing public duties.
The purpose of this article is to examine the current legal landscape and identify the situations in which a private entity may be sued and the situations in which a private entity may not be sued using decisions made by the supreme court and high court in various cases.
Sovereign nation
The definition of a state is found in Article 12 of the Indian Constitution, which also states that all local governments and other authorities must either fall under the control of the central government of India or be located within its borders. States also include the national parliament, the governments of each state, and the state legislatures. The General Clauses Act of 1897 makes reference to the definition of local authorities. – According to Section 3(31), “Local Authorities” are defined as municipal committees, district boards, boards of port commissioners, or other authorities that are legally entitled to, to whom the government has delegated jurisdiction, or who are in charge of and administer municipal or local money. The local authority would have jurisdiction over the panchayats, municipalities, and cooperative organisations that have been specifically mentioned in the constitution.
The additional authorities that fall under the purview of the states are not listed in the constitution, thus the supreme court’s interpretation has, for the time being, clarified this issue. The definition of the state has included universities, the Rajasthan State Electricity Board, ONGC, LIC, IFC, Airport Authority of India, Bharat Petroleum Corporation, and several other institutions. The Board of Control for Cricket in India, NCERT, Political Parties, the Judiciary, and private organisations with private obligations are a few examples of organisations that were not included in the concept of the state.
However, the inclusion of numerous additional bodies that might fall under the definition of the state is still being debated. It is also necessary to ascertain the circumstances in which a private body may be regarded as a state and the occasions in which a writ may be issued against the private person.
Instances where writ is maintainable against a private entity
The Supreme Court of India and the High Courts have inferred and ruled that the writ petition is admissible against a private body in the following cases.
Judgments:-
In the matter of Rajghat Education Center v. Dr. Anand Gupta and Others. The Supreme Court has ruled that while a writ of habeas corpus may be issued against a private entity, a writ petition may only be issued against a governmental authority. The court has gone so far as to give a limited interpretation of the phrases specified in article 226 where the terms such as a writ to “any person or Authority” for enforcement of the fundamental rights mentioned in Part III and “for any other purpose” are concerned.
A writ could be issued against private entities if the term “any person or authority” is understood literally, and if the term “any other purpose” is interpreted literally, then any private conflicts, such as divorce, succession, etc., would fall under the writ’s jurisdiction. Therefore, the court has emphasised the restrictive sense of the interpretation of the aforementioned phrases that was previously followed by the British Court based on previously decided cases in the supreme court of India.
In the case of Dushyant Somal v. Sushma Shomal, a writ of habeas corpus was granted against a father who illegally retained custody of the child with him. The lower court’s judgement had given the mother of the child custody.
It can be inferred from the aforementioned two cases that a habeas corpus can be filed against private individuals and private entities. The court has specifically addressed the scope of the writ of mandamus in the case of Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust & Ors v. V. R. Rudani & Ors.
It doesn’t matter if the public duty is mandated by a law or rule. If any individual rights are violated while carrying out a public obligation by a private entity or by any other body, the court shall consider the writ of mandamus and restore that right. The court explicitly stated that the writ of mandamus should not be kept in a watertight arrangement or made purely technical but rather it should be widened to the extent that could provide justice, and the high court has the widest powers under Article 226. This judgement has given the writ of mandamus a broad scope.
Although the High Court of Madras recently addressed the issue of the maintainability of the writ of mandamus in Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Limited, HDFC Bank Limited, and Insurance Regulatory and Development Authority on June 6, 2019. The insurance industry was nationalised and brought under the control of the government of India as a result of the private companies abusing their power. The insurance business was being conducted by the centre under the names of Life Insurance Corporation and General Insurance Corporation. The court has stated that when the Insurance Act first went into effect, it gave the insurance companies vast power on the basis of the trust that the money would be used safely by them. As society changes, the state is becoming more involved in socioeconomic activities as a result of which it is sharing some of its tasks with other organisations while maintaining control over all economic operations, which is related to monopoly.
As a result, the rights of fellow citizens are under threat, which is why the High Court may exercise its authority under Article 226 to free the rights of citizens from the control of the legislature, executive, public agencies, and private agencies. Due to a lack of effective control, which has caused private bodies to acquire more power similar to public bodies where the public monopoly powers are replaced by private monopoly power, the court had brought the private bodies performing public duties under the constitutional limitation and is made accountable to judicial review. The term “for any other purpose” gives the widest powers to the High Courts.
As a result, it was decided that the court has the authority to consider a writ petition if any private body is required by law. When there is a public law component to the case, the court will act, and when there is a private law component, the court will take no action.
The aforementioned cases demonstrate that public duty is the most crucial factor in determining whether a writ against a private entity can be maintained.
Instances where writ is not maintainable against private individual entity
The writs we see today are the prerogative writs that the British kings used to enact the legal remedies in particular circumstances. In Britain, writs have typically been employed against governmental entities rather than any private entities. Because this writ is only used against judicial and quasi-judicial bodies, it cannot be maintained against a private organisation.
The question of whether this petition against the private body can be maintained is moot because the writ of certiorari is employed for judicially reviewing the lower court order.
Because it calls into doubt the qualifications and legitimacy of the individual holding a public position under a state or national government, a writ of quo warranto cannot be maintained against a private entity.
The Supreme Court of India has explicitly stated in several decisions, notably the case of Army School v. Smt. According to Shilipi Paul, only a writ of habeas corpus may be issued against a private body; writ petitions cannot be maintained against private bodies.
Instances when writ could be issued against the private body
When we think about 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 anyone at any point in time. The aforementioned ruling and discussion clearly state that a writ of habeas corpus and mandamus is maintainable against a private body
When it comes to issuing a writ of mandamus against a private body, a private entity that is performing a public duty on behalf of the government will be regarded as a state within the meaning of Article 12. Additionally, the writ of mandamus is enforceable against this type of private entity only insofar as it has a public duty.
Conclusion
Due to the government bodies’ operations shifting from governance to socioeconomic activities, the definition of the state and the scope of other authority 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 organisations 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 organisations performing public duties, and it is legally maintainable.