WRIT JURISDICTION AND PRIVATE SECTOR

This article is written by Anjali Bajaj of 2^nd Year of Gopaldas Jhamatmal Advani Law College, Mumbai University, an intern under Legal Vidhiya.

ABSTRACT

This Article delves into the scope and application of writ jurisdiction, the nuances of writ petition in the private sector, examining their significance, procedures, and outcomes with the help of the Articles of the Constitution of India and numerous judgments of the courts. It starts with the introduction emphasizing fundamental rights and infringement of these rights that cover the right of constitutional remedies under Article 32, the power of writ jurisdiction granted under Article 32 for the Hon’ble Supreme Court, and Article 226 for the Hon’ble High Courts. Certain concepts are explained for a better understanding of writ jurisdiction in the private sector. Horizontal and vertical applications of fundamental rights are demonstrated. This Article explains how LPG reduces the difference between the public and private sectors. The scope of writ jurisdiction in the private sector is explained along with nuances to the writ petition and key areas for filing of writ petition before the Courts. This Article covers recent developments in the field of writ petition in the private sector.

Keywords: Writ jurisdiction, Fundamental rights, State, Public functions, Private sectors, violation, Horizontal and Vertical Application.

INTRODUCTION

In India, every citizen is guaranteed some fundamental rights under Part III of the Constitution. These rights are enshrined under Articles 12-35 of the Constitution of India.

However, serving fundamental rights alone is not adequate but should be protected in the form of remedy. Some of these incorporated rights have an absolute and unqualified nature, and violations of these rights are unendurable. Therefore, to provide a shield for public interest and to ensure and nail down justice, citizens are granted the right to file a writ petition in front of the High Court Under Article 226 of the Supreme Court under Article 32. Both Article 226 and Article 32 of the Indian Constitution provide a robust framework for the judiciary to exercise writ jurisdiction, which is essential for safeguarding fundamental rights, ensuring justice, and holding government authorities accountable for their actions. While Article 226 empowers High Courts with broader jurisdiction, Article 32 grants the Supreme Court a unique role as the ultimate protector of the fundamental rights of citizens.

Writ jurisdiction derives its name from the “writs” themselves, which are formal written orders or commands issued by a court. A writ petition is a popular legal tool used in many common law jurisdictions to ask higher courts for relief and remedies. It is often used in situations involving violations of fundamental rights, official government acts, or matters of public interest. They are a cornerstone of the rule of law, ensuring that no one is above the law and that justice prevails in society. These legal instruments empower citizens to hold authorities accountable and contribute to the overall functioning of a just and democratic society. Writs protect citizens’ rights by providing a faster remedy, thereby upholding democratic principles by providing quick justice. Writs are the guardians of individual liberties and rights.

First and foremost, before addressing writ jurisdiction in the private sector, we must understand the concepts, such as writ jurisdiction, public sector (State), private sector, public functions and different types of writ jurisdiction, vertical and horizontal application, the impact of liberalization, privatization, and globalization.

CONCEPTS

• Writ Jurisdiction

A writ issuing power conferred on both the Supreme Court and the High Courts, the former has a limited scope, whereas the latter has a broader spectrum. The main reason is that Article 32, which empowers the Supreme Court to issue writs, grants such power only in connection to enforcement of fundamental rights. In contrast, High Courts under Article 226 can issue writs to enforce fundamental rights and other legal rights, but only when there is no alternate remedy available for violation of such rights except in certain cases. Generally, writs are enforceable and granted against the state only and not against private bodies.

• Public Sector (State) – Article 12 of the Indian Constitution

Unless the context is contrary to the definition, the State includes

• the Government and Parliament of India
• and the Government and the Legislature of each of the States
• and all local or other authorities within the territory of India or under the control of the Government of India

In layman’s language, as per Article 12 of the Constitution of India – The State is a sector controlled, managed, or authorized by the Government.

• Private Sector

Any entity, that is out of the purview of the Definition of State under Article 12, is deemed to be a private sector.

In the famous case P.D. Shamdasani V. Union Bank of India, AIR 1952, SC 59, held that the fundamental rights are enforceable only against the State (public sector) and not against the private sector, and in addition to this court distinguished the private sector and public sector.

• Public Functions

Public functions refer to Public duties performed by a public body or someone acting on behalf of the public body. In some instances, public functions can refer to any temporary or permanent, paid or honorary activities performed by a natural person in the name of the State or the service of the State or its institutions at any level of its hierarchy.

• Types of Writ Petition
• Writ of Habeas Corpus

(Applicable to both public and private authorities)

Habeas Corpus Writ is a Latin term described as “We command that you have the body”. It means you have the body and present it before the Court within 24 hours of the arrest. The Habeas Corpus writ protects the Fundamental Rights of Liberty of people against illegal detention by the State or private authority.

In the landmark case A. D. M. Jabalpur V. S. Shukla 1976, P.1207, popularly known as the Habeas Corpus Case, held that if the enforcement of Article 21 was suspended by the Presidential Order, then an aggrieved party shall not have the right to file a writ petition challenging the legality and validity of detention. However, after the 44th amendment of the Constitution, the decision passed in the Habeas Corpus Case is no longer a valid law. As per the present scenario, even the Presidential Order cannot suspend the right to life and liberty under Article 21.

• Writ of Mandamus

(Applicable only to public authorities and offices exercising public functions)

Writ of Mandamus means “We command” and also “We mandate” or “Order”. A Writ of Mandamus is issued by superior courts to compel the inferior or lower courts or government officers to perform obligatory and mandatory duties.

Writ of Mandamus is issued against:

–      Public authorities and institutions

–      Officers or servants exercising public functions

–      Government and public bodies.

In the leading case of Gujarat State Financial Corporation v M/s Lotus Hotel Pvt Ltd. 1983, p.848, the Corporation established under the State Financial Corporation Act, 1951 had agreed with Lotus Hotels to provide finance on long-term credit and failed to release the funds. The Court issued the writ of Mandamus and directed the Corporation to release the funds as per agreement.

• Writ of Prohibition

(Applicable only to Inferior Courts, Judicial or Quasi-Judicial Authorities)

Prohibition means to forbid, restrict, or prevent and it is termed a ‘Stay Order’. The Superior Courts issue writ of prohibition to subordinate courts or tribunals under their jurisdiction to stop them from exceeding their power or jurisdiction. This writ is issued before the judgment or decision is delivered.

Writ of prohibition is issued against:

–      Inferior or subordinate courts

–      Authorities exercising judicial or quasi-judicial functions

In the famous case of Mannusamappa and Sons V. Custodian Evacuee Property, AIR 1962 SC 789, the custodian, after considering the petitioners as tenants of the said property and also receiving rent for a few months, planned to proceed against them as if they were holding possession in a permissive nature. Writ of Prohibition was issued to stop him from further course of action.

• Writ of Certiorari

(Applicable only to Inferior Courts, Judicial or Quasi-Judicial Authorities)

Certiorari means “to certify,” and it is issued by the Superior Court to subordinate judicial or quasi-judicial bodies, directing them to transfer the records of a particular case to determine whether the court has the jurisdiction to give the order or whether this is against the principles of natural justice. The superior courts also have the power to quash an already passed order by the lower courts. The Writ of Certiorari is corrective and rectifying in nature.

In the prominent case A. Ranga Reddy V. General Manager of cooperative electric supply society-1987, various appeals filed were demanding elections of the Cooperative societies would be held in the state. However, the High Court of Andhra Pradesh held that a writ of certiorari not be issued against a private person.

• Writ Of Quo Warranto

(Applicable to public office)

Quo Warranto means “What is your authority.” This writ of quo warranto questions the authority of a public servant or a private person holding a public office. Thus, this writ is also not applicable to private companies. A writ petition could be filed by a person whose fundamental rights are violated or in the public interest. It is issued against any unlawful holder of a public office.

In the famous case of Jamalpur Arya Samaj Sabha V. DR. D. Ram 1954, p.297, a member of the working committee of the Bihar Arya Samaj Sabha holds the office for more than a prescribed period. The High Court refused to issue a writ of Quo Warranto on the ground that it was a private association.

From the aforementioned types of writs, we understand that only a writ of Habeas Corpus applies to Private authorities.

VERTICAL AND HORIZONTAL APPLICATION

Violation of fundamental rights can be protected against private and public sectors by

vertical and horizontal application.

• Vertical Application

Vertical application of fundamental rights means that action can be brought only against the state and not against any private sector.

• Horizontal Application

Horizontal application of fundamental rights can be enforced against the private sector.

After the enactment of the Constitution, the vertical application of fundamental rights was sufficient. The reason behind making only the state responsible for the fundamental rights of the citizens was the extreme power and authority vested with it. To avoid the misuse of such power and to stop it from turning into an undemocratic and totalitarian state, the constitutional maker considered it necessary to make the state accountable for its actions. The state has to ensure the welfare of its citizens and is bound by the principle of non-discrimination, natural justice, and fairness.

In Babu and others V. Managing Directors, Hindustan Teleprinters Limited (HTL), Chennai and others, 2013 (3) TMI 339 MAD. HC, the petition was brought before the court to make a company liable for the ex-gratia amount which they have not given to their employees. The contention here is that initially HTL was a public sector organization but later on the government disinvested its share and it ceased to be a public undertaking. The challenge that rose before the court was whether the writ of mandamus could be initiated against a private sector. 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.

IMPACT OF LIBERALIZATION, PRIVATIZATION AND GLOBALIZATION

The difference between the private and public sectors started declining after the liberalization, privatization, and globalization in 1991. The growth of the private sector led to more authority and power in their hands, and the continuous dereliction of state control also fanned the flames. People gradually recognize their rights and are violated not only by the State but also by private sectors. Horizontal application of fundamental rights came into the picture to safeguard the rights of people.

SCOPE OF WRIT JURISDICTION IN A PRIVATE SECTOR

Writ petitions, rooted in the principles of justice and the rule of law, are considered valid and legal documents that petitioners submit to a court. These documents beseech the court’s intervention in cases where a violation of a fundamental right or a legal wrong has occurred. While writs are frequently associated with public law issues, they also play a significant role in the private sector, where they serve as a tool to hold private enterprises accountable for their actions and decisions. Private sector entities are generally not subject to writ petitions in the same way as public sectors. However, there are certain situations or extensions where actions of the private sector could lead to legal challenges or lawsuits, which might resemble some aspects of a writ petition through judicial pronouncements and on the ground that the private entity is performing a public duty.

This principle is reaffirmed in the recent case, Jasmine Ebenezer Arthur V. HDFC ERGO General Insurance Company Ltd. & Others [2021 (1) CTC 246], the petitioner sought a writ of mandamus directing the respondent to honor a claim under the insurance policy. The respondent proclaimed that the writ petition was not maintainable as the company did not fall within the ambit of ‘State’ and was out of the purview of the Court’s writ jurisdiction.

The Madras High Court held that if a private body is performing a public duty, the Court has the jurisdiction to entertain a writ petition as it falls within the purview of judicial review.

The writ lies against the state and the instruments of the state but not against a private company. The landmark judgment in this regard is the case of Binny Ltd vs. Sadasivan (2005) 6 SCC 657,

In this case, the appellant worked as a corporate legal manager for the respondent’s private company. Behind being terminated, the appellant filed a writ to challenge the decision that would allow him to work again in the same position with the same salary. But the question is whether a writ is maintainable against a private entity. The writ of mandamus was not maintainable against the company as it was a private employer, and the company did not discharge any public functions decided by the full bench judge of the Supreme Court. Thus, the writ petition is not maintainable.

NUANCES TO WRIT PETITION

Writ petitions are primarily used to challenge the actions of government authorities, Private sector disputes are typically addressed through contractual agreements, civil litigation, alternate dispute resolution, or regulatory bodies rather than a writ petition.

• Contractual Disputes: Most issues in the private sector are resolved through contract law rather than writ petitions. If there’s a dispute between parties in the private sector, it’s usually resolved through contractual remedies or civil litigation.
• Employment Matters: If you’re dealing with employment-related issues in the private sector, like wrongful termination or labour law violations, you would typically file a lawsuit or a complaint with the relevant labour authority rather than a writ petition.
• Regulatory Compliance: Private sector businesses must comply with various regulations and laws. If a private company is not adhering to these regulations, regulatory authorities can take action, but this usually doesn’t involve writ petitions in the traditional sense.
• Fundamental Rights: In some cases, if a private entity is acting in a manner that violates fundamental rights or constitutional principles, a writ petition may be filed against government agencies that may have failed in their regulatory role.
• Public-Private Partnerships (PPPs): In PPP projects, which involve both public and private sectors, there might be situations where writ petitions can be filed if there are issues related to public interest, transparency, or improper actions by government authorities involved in the partnership.
• Judicial Review: Courts may review actions of private entities, especially when they involve public interest or fundamental rights. This review process is not a writ petition but rather a civil lawsuit seeking legal remedies.

It is evident that some of the above nuances, if not resolved by relevant applicable law, become one of the reasons for filing a writ petition.

KEY AREAS OF WRIT PETITIONS WITHIN THE PRIVATE SECTOR:

• Breach of Contract: Writ petitions can be filed against private companies when there is a breach of contract. It includes where the terms of the contract have been violated, leading to financial or other losses.
• Consumer Rights: Individuals or consumer forums may file writ petitions against private companies engaging in unfair trade practices, false advertising, or providing low-quality products or services that harm consumers.
• Labor and Employment Matters: Writ petitions are to be used to challenge actions by private employers related to labour and employment issues. It may include disputes over illegal termination or matters relating to workplace discrimination.
• Environmental Concerns: If private companies engage in activities resulting in harmful environmental impacts, citizens and environmental forums may file writ petitions to protect the environment.
• Intellectual Property Rights: Aggrieved parties can file writs for protection of infringement of intellectual property rights.
• Corporate Governance: Shareholders in private companies can file writ petitions for mismanagement, fraud, or actions affecting their interests.

If a private enterprise violates an individual’s or entity’s legal interests or rights, they can file a writ petition in the private sector. The scope of a writ petition is not limited to any specific situation or area. For instance, in the realm of antitrust and competition law, one can challenge mergers and acquisitions that may harm competition in the private sector due to anti-competitive practices by filing writ petitions. Similarly, in today’s world, concerned individuals have the right to file writ petitions against private companies for unauthorized data collection, breaches, or misuse of personal information in the context of privacy and data protection.

RECENT DEVELOPMENTS

These developments have expanded the scope of writ jurisdiction and provided individuals and businesses with additional rights and remedies.

One significant development is the recognition of writ jurisdiction in private contractual disputes. Traditionally, writ jurisdiction was limited to public law matters, such as government actions and constitutional questions. However, courts have increasingly recognized that writ jurisdiction can also apply to private contractual disputes where fundamental rights are involved.

Dozco India Private Limited V. Vedanta Limited & Others

Facts:

In the case of Dozco India Pvt. Ltd. v. Vedanta Limited & Ors, a contractual dispute arose between Dozco India Pvt. Ltd., a party to a contract, and Vedanta Limited, the other party to the contract. Dozco India Pvt. Ltd. filed a writ petition before the Supreme Court of India seeking the enforcement of certain contractual rights.

Issues:

The main issue in the case was whether the writ jurisdiction could be invoked in a private contractual dispute and if there was a violation of fundamental rights.

Judgment:

The Supreme Court held that writ jurisdiction can be invoked in a private contractual dispute if there is a violation of fundamental rights or if the private entity exercises public functions. The court recognized that the availability of an alternative remedy through civil litigation does not exclude the writ jurisdiction of the court, especially when fundamental rights are at stake.

In this case, the Supreme Court noted that the contract involved a public-private partnership and Vedanta Limited was performing certain public functions. Therefore, the court held that writ jurisdiction can be invoked against a private entity in appropriate cases to prevent abuse of power or to protect fundamental rights.

The court directed Vedanta Limited to comply with the contractual obligations and granted appropriate relief to Dozco India Pvt. Ltd. This case set an important precedent by expanding the scope of writ jurisdiction in private contractual disputes and recognizing the need for judicial intervention to protect fundamental rights in such cases.

Another significant development is the recognition of writ jurisdiction in the context of arbitration proceedings. Previously, writ jurisdiction was considered to be excluded in matters that were subject to arbitration. However, in the case of Emaar MGF Land Limited v. Aftab Singh, the Supreme Court held that writ jurisdiction can be invoked during the pendency of arbitration proceedings to protect fundamental rights or to prevent abuse of process.

The court held that the availability of an alternative remedy through arbitration does not exclude the writ jurisdiction of the court, especially when fundamental rights are at stake. This has provided parties involved in arbitration proceedings with an additional remedy to seek protection of their fundamental rights through a writ petition.

These developments in writ jurisdiction in the private sector have expanded the rights and remedies available to individuals and businesses. They have recognized the need for judicial intervention in certain private contractual disputes and arbitration proceedings to prevent abuse of power or protect fundamental rights. These case laws have set important precedents and have had a significant impact on the legal landscape in India.

CONCLUSION

The power to grant writs is one of the most important powers granted to the Superior Courts. Writs protect the rights of the citizens by providing an immediate remedy, thereby upholding the principles of democracy by providing quick justice. The importance of writs cannot be underestimated, and the courts must necessarily use this power judiciously as they have been given a very wide ambit to use this power to reaffirm that the principles enshrined in our constitution are not only on the document but rather have an impact in the real world of Indian citizen.

Certain Fundamental rights are not enforceable against the private sector even though they yield equal or even more power than the public sector. The court should adopt a mechanism where even the private sector should be held answerable and responsible for their actions. The disproportionate power vested with the private sector gives them enormous chances to misuse their power which in some cases infringes the fundamental rights of the citizens. If the court enforces the horizontal application of rights in full form, then the chances of violation of fundamental rights can be greatly reduced.

REFERENCES

• Anshum Agarwal, “What is the writ jurisdiction in India?” – lawcorner.in.
• Priyal Jain, “Writ jurisdiction of Supreme Court” – blog.ipleaders.in.
• Prashant Mara and Pranav Wahi, “Writs against non-state entities in India – pushing the boundary” – www.mondaq.com
• Nimisha Mishra, “Writ Jurisdiction and Private Sector” – lexpeeps.in.
• www.casemine.com  – last visited 6^th September 06, 2023.
• https://prepp.in/news/e-492-writ-jurisdiction-of-high-court-indian-polity-notes  – last visited 20^th September, 2023