Research – 1

A) Article 12 & Article 226 of Constitution of India is correlated. Explain?

Answer: Yes Article 12 and Article 226 of Constitution of India is correlated to each other.
Article 12 of the Indian Constitution states that,
“Definition in this part, unless the context otherwise requires, 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 other words, for the purposes of Part III of the constitution, the state comprises of the
following:
 Government and Parliament of India i.e the Executive and Legislature of the Union
 Government and Legislature of each State i.e the Executive and Legislature of the
various States of India
 All local or other authorities within the territory of India
 All local and other authorities who are under the control of the Government of India
Article 226: As per the powers conferred under Article 226 of Indian Constitution, High
Courts have the power to issue directions, orders, writs to any person or authority or any
governmental authorities. The High courts have the authority in the territory where their
jurisdiction is exercised to issue directions order or writs in the nature of Mandamus, Habeas
Corpus, certiorari, quo warranto, prohibitions. In legal terms, a writ is a formal written order
issued by a government entity in the name of sovereign authority. In modern parlance, this
government entity is a court.
Under Article 12, the control of the Government does not necessarily mean that the body
must be under the absolute direction of the government. It merely means that the government
must have some form of control over the functioning of the body. Just because a body is a
statutory body, does not mean that it is ‘State’. Both statutory, as well as non-statutory bodies
can be considered as a ‘State’ if they get financial resources from the government and the
government exercises a deep pervasive control over it.
The interpretation of Article 12 becomes very important as fundamental rights can be
enforced only against the state. Who is a ‘state’ is determined by the provisions of Article 12.
The judiciary tries to include more and more bodies under the purview of the state so that
more people can enforce their fundamental rights against it. The interpretation of “other
authorities” has seen a drastic change. The scope of Article 12 is increasing day by day to
provide justice to people whose fundamental rights are violated. Its only purpose is to provide
remedy to people who come under this article. Comprehensibly, Article 226 of the Indian
constitution is one of the key provisions, which has been enacted with the object to protect
the legal rights of a person and award remedies to the aggrieved party. Thus, this Article
empowers a person to move an application before the high court for the enforcement of their
legal right. Unlike Article 32, it is a constitutional right and cannot be suspended even at the
time of emergency. High courts have comparatively narrow jurisdiction over the Supreme
Court. Since the invested power is discretionary in nature, the high court decides whether to
issue a writ or not for the particular fact in issue.

D) Writ should be maintainable against any party which discharge public function. In the
same line, can writ be maintainable against Facebook, Twitter etc. as they also discharge
public functions? Share your thoughts in view of the law.
Answer: Writ being a public law can be invoked only whenever the State or its
instrumentalities fails to discharge any public function that they are obligated to do under any
statute, not for private laws because contract between two parties is a realm of private laws.
Yes, writ can be maintainable against Facebook, Twitter or any other social media platforms
as they also discharge public functions if the state fails to discharge their statute of laws. It is
a writ of right to freedom of speech and expression under Article 19(1) (a) of the
Constitution.
In the case of Senior Advocate Sanjay Hedge recently challenged Twitter’s decision to delete
his account permanently before the Delhi High Court under article 226 of the Constitution.
Mr. Hegde’s case entirely hinges on the argument that Twitter and other social media
platforms will be amenable to the writ jurisdiction of the High Court as they perform public
functions. This article seeks to prove that Twitter does not perform public functions, and
therefore will not be amenable to the jurisdiction of a writ court. He pleaded that Twitter and
other social media platforms perform a public function “by providing a means for
dissemination of and access to information”. This argument, if successful, will pave the way
for users aggrieved by content moderation decisions of social media platforms to approach
the High Courts directly. Any such determination would invariably dilute the sanctity of the
Terms of Service that users agree to be bound by when they create their accounts.
It is settled law that private unaided companies like Twitter cannot be regarded as State under
Article 12 of the Constitution, but they will be amenable to the jurisdiction of High Courts
under Article 226, provided they perform a “public function”. [Zee Telefilms Ltd v. Union of
India and Andi Mukta Sadgur and Ors v. VR Rudani and Ors] As there is no cut and dried
formula to decide whether a private institution is performing a “public function”, the factors
discussed below can be considered against Mr. Hegde’s arguments about Twitter’s public
functions.
The position of law, as it stands at the moment and as discussed above, does not support Mr.
Hegde’s claim that Twitter performs public functions. However, despite what has been
argued, one cannot categorically deny that Twitter and other social media performs functions
with zero public element. It is important to bear in mind that even in a welfare state,
individual liberty should not be compromised because of liberal interpretation of the public
function doctrine.
Despite performing functions with public elements, the current law allows Twitter to
circumscribe the right to freedom of speech of its users with its own right to dictate what kind
of content can be circulated on its platform. 

MELARISHA KHARKONGOR
AMITY LAW SCHOOL KOLKATA