Hardik Khattar

16/12/2020
Mid Semester Exams

Constitutional Governance

A1.

In Naresh Mirajkar v. State of Maharashtra, the court held that Judicial Decisions cannot be
challenged for violation of fundamental rights as the judiciary’s role is to interpret the laws and the
decisions are ‘inter-party’. Also, if one does not agree to the decision, then review petition and
curative petition can also be filled. Therefore, judiciary was not officially considered to be a part of
state under Article 12.

The dissenting opinion in the judgement was provided by Justice Hidayatullah and his stance on the
four questions raised was as follows:

A) The High Court did not have the inherent power to pass the above order.
Section 151of the C.P.C. cannot be used to confer a discretion on the to turn its proceedings which
should be open and public into a private affair.

B) A Court which was holding a public trial from which the public was not excluded, cannot
suppress the publication of the deposition of a witness, heard not in camera but in open Court, on
the request of the witness that his business will suffer.

A trial in camera can only be used when a strong case exists for holding it in camera and inherent
powers can only be recognised on well recognised principles. Where the legislature felt the special
need it provided for it. It is not right to assume from the Official Secrets Act, 1923, that courts
possess a general or inherent power of dispensing with open and public trials.

C) The order commits a breach of the fundamental right of freedom of speech and expression. The
Chapter on Fundamental Rights indicates that Judges acting in their judicial capacity were not
intended to be outside the reach of fundamental rights. State in Arts. 12 and 13 includes Courts
because. Otherwise courts will be enabled to make rules which take away or abridge fundamental
rights and a judicial decision based on such a rule would also offend fundamental rights. A Judge
ordinarily decides controversies between the parties, in which controversies he does not figure, but
occasion may arise collaterally where the matter may be between the Judge and the fundamental
rights of any Person by reason of the Judge action.

D) Even assuming the impugned order means a temporary suppression of the evidence of the
witness the trial Judge had no jurisdiction to pass the order. As he passed no recorded order the
appropriate remedy (in fact the only effective remedy) is to seek to quash The order by a writ under
Art. 32. There may be action by a Judge which may offend the fundamental rights under Arts. 14,
15, 19, 20, 21 and 22 and an appeal to this Court will not only be not practicable but will also be an
ineffective remedy and this Court can issue a writ to the High Court to quash its order, under Art. 32
of the Constitution.

Thus in line with the dissenting opinion of Justice Hidayatullah, the High Court did not have the aut
hority to pass the above order, the order infringes the constitutional right to freedom of speech and e
xpression by a court conducting a public trial from which the public not excluded can not suppress t
he publication of the deposition of a witness heard not in camera but in open court,
Pursuant to Article 32 of the Constitution, the order was subject to the written jurisdiction of the sup
reme court.

In my personal opinion, I believe that Justice Hidayatullah was completely factual and correct in his
dissenting judgement as the facts of the case should have precluded the Court from making the trial
expressly prohibited in media reporting. The HC has the right to have an in0-camera trial but not an
In-Camera witness deposition which is why I believe that the court overdid its judicial bounds while
making that design, furthermore I believe that the Courts had no obligation examining the business
of the witness as a consideration in a trial relating to Fundamental Rights.
A2.

The ambit of the authorities are under article 12 and the definition for state are governments,
legislations and several municipalities and functionaries of institutions which are constitutionally
created and other authorities i.e. which has a wide range of authorities which judges interpret
according to the case. The constitution aims to protect citizens or individuals against the excesses of
state and state power is restrained or curtailed, which is the reason for vertical application of
fundamental rights when fundamental rights are enforceable against state. There are many private
entities fundamental in state and nature of work is more inclined towards the nature of fundamental
of state. This is so because their position is not clear and there is significant lack of clarity.
Four significant happenings through which court has provided for infringement of fundamental
rights : The Supreme Court has held that certain private bodies, in their structure or function, are so
closely connected to the State, they are under the definition of “other authorities” within Article 12
and this is necessary for enforcing fundamental rights against them. Indian cases and courts have
used two tests to determine the scope of “other authorities” which are as follows :-

a. Structural Test: This looks the measure to which the private authority is under the control
of the State.
b. Functional Test: This poses the question whether the private body is performing a task
which could be called a State function.

Finally in Pradeep Kumar Biswas Vs Indian Institute of Chemical Engineering, the Supreme Court
held that structural test is the better test as only those authorities which were functionally,
financially or administratively controlled by or are under the government fall in the ambit of Article
12.

Positive Rights enforceable against the State:

Fundamental rights have been understood to be negative in nature i.e. they act as checks on the
functions of the State and makes sure they do not commit any excesses. With the passage of time
and through various applications and interpretations, like UNHCR stating that it is a duty of the
State to respect, fulfil and protect the rights. The Supreme Court of India under this held in Vishaka
Vs State of Rajasthan, that it was the State’s failure to pass an anti-sexual harassment law for
workplaces for public and private bodies and violated the rights of the petitioner under article 14, 19
and 21. Then the court set up a set of guidelines, now known as Vishaka Guidelines, which were
meant to be a temporary law until the legislature framed one. Court held that individuals have rights
under Article 14, 19 and 21 against State, which has an obligation to regulate private actors so that
these rights must not be violated. This makes it a positive duty of the State to undertake all acts that
make it sure that the right bearers can exercise their, although negative worded, rights.

1) Indirect Horizontality:
Indirect horizontality refers to a case where a private actor is the respondent acting in its private
capacity. It is not about the respondent but it is about the law upon which the respondent relies,
which means that the law is inconsistent. For an example, Zoroastrian Cooperative Vs District
Registrar, There was a state law that the cooperative society to frame laws for the members of the
society i.e. Parsis. This legislation was sued upon in the High Court and High Court held that the
law was inconsistent. An appeal was made in the Supreme court .The Supreme Court held that the
cooperative Society has the rights and the freedom to association with whomever they wanted to
that this right overrode the right of the individual against non-discrimination on the basis of caste,
religion etc. Consequently, the Supreme Court upheld the legislation the legislation which allowed
the society to exclude people purely on the basis of religion.

There is a significant test for this. Let us say there is a common law of defamation and it is not in
tune with what the constitution required. Thus, the private law can be modified to make it
constitutionally consistent so that it can extend it to the private entities. In an American Case, New
York Times Vs Sullivan, it was held that private defamation proceedings against New York Times is
not consistent with the constitution i.e. idea of fundamental right of freedom of speech and
expression. In private matters, the relationship can be modified or regulated by modifying the law
between them to make laws consistent with constitution and in this way, the constitution is
indirectly applied to those private individuals or entities. This is also known as the “Radiating
Effect” i.e. constitution is going to govern each and every proceeding.

2) Direct Horizontality:
Finally, direct horizontality refers to a situation where the private act of a private party is challenged
on the touchstone of the Constitution. There are constitutional provisions which are applicable to
state and also to private bodies and individuals, so if violated, the Supreme Court can intervene.The
Indian Constitution has three specific provisions that make horizontal violations illegal. Under
Article 15(2), no citizen may be restricted from access to shops, public restaurants, hotels and
places of public entertainment, as well as places of public for the use of general public on grounds
such as religion, race, caste etc. Article 17 abolishes the practice of untouchability. Article 23
prohibits human trafficking and also bonded labour. In a case, IMA Vs Union of India, the Supreme
Court referred back to the debates of Constituent Assembly to hold that word “shops” was of very
wide import, it not only referred to the physical shop, but also to the wide variety of goods and
services provided in a market. Therefore the Court held that the schools did fall under the ambit of
the phrase shops for the purposes of Article 15(2) and the private schools were subject to non-
discrimination under the Constitution. Therefore in direct horizontality, the constitution helps
Supreme Court keeps a check on every procedure and direct Parliament to make it punishable if a
violation.
A3.

In the case of AR Antulay v RS Nayak, the apex court took up, Suo Moto, a case from the high
court with a special request to the presiding Chief Justice to assign these two cases to a sitting judge
of the High Court, to expedite the trial of the appellant was challenged. The appellant had raised an
objection that the case could be tried only by a special judge, which was rejected. The supreme
court observed that the writ petition challenging the validity of the order and judgement of this court
was nullity. The appellant filed a special leave petition before the Supreme Court questioning the
jurisdiction of the special judge who was sitting judge of the High Court to try the case involution
of the appellant’s fundamental rights conferred by articles 14 and 21 and the provisions of the
criminal law amendment act of 1952. The Concurring Opinion held that justice not done should be
corrected by applying the principle of ‘Neminem Gravbit’.

The majority judgment held that since the offences could be held under trial by Special Judges only,
the order transferring the cases to the High Court was thus unauthorised by law. Now as per the
constitution of India and its directions, the Supreme Court does not confer jurisdiction on the High
Court, such power being purely legislative. However, a superior court could always correct its own
error brought to its notice by way of petition or ex debit-justitiae. The disagreeing opinion about the
case was the interpretation of law by the bench in light of the very nature of function of judiciary.
Due to the privilege inheritance making a judicial decision was becoming indispensable to every
judicial function. This particular case was entertained under a special leave petition under article
136 and was not filed under article 32. However surprisingly the court did not look into the issue of
whether a writ petition could be allowed under article 32 to challenge the decision of the court.

It was concluded that relevant statutory provisions and binding precedents were ignored. In such a
special situation the only way out was to recourse to article 32 which itself is a fundamental right.
Therefore it would follow that Judiciary needs to be within the meaning go state under article 12
and would not resort to terming it “an inherent jurisdiction” or by citing legal maxims.
However to mention the dissenting judgement as well, which states that the inherent privilege in
judicial decision making thus gives it a way to make erroneous decisions which could violate
fundamental rights. The judgement is partially right to say that binding power of jurisdiction or
judgement should not depend upon the correctness of its exercise, however in saying that allowing
article 32 would open a floodgate of respective challenges is a large exaggeration of its
consequences.

Talking about the Indian Legal system, In case the determining court is the highest court that is the
Supreme Court of India, and then the only remedy is to invoke its review or newly created curative
jurisdiction, and according to me this position has been amply clarified and maintained by the court
in A.R. Antulay vs R.S. Nayak, Although some Judges did resort to the inherent jurisdiction of the
court in setting aside an earlier order of the court for violation of the fundamental rights. While a
majority of the judges have expressly said that a wrong determination of the court cannot be
corrected in proceeding for certiorari, no judge has refuted this proposition. The fact of the matter is
Antulay was decided on appeal under article 136 and not under article 32 which makes it a non-
fundamental rights case and thus the Supreme Court could have Jurisdiction over the High Court.
A4.

Article 12 of the Indian Constitution states the following ‘The State Includes the government, the
Parliament of India and Government and legislatures 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’. The term
‘Other Authorities has been a bone of contention for the past 60 years with a slew of judgments and
dissenting opinions and tests being formed and reformed in order to tackle the issue.

The cases start with the Rajasthan State Electricity Board v. Mohan Lal case in which the
Supreme Court had to first take a decision as to what the term ‘Other Authorities’ meant. The Case
involved a dispute relating to articles 14 and 16. The Board argued that the phrase must be read
Edjusm Generis while the Supreme Court rejected this reasoning arguing that there was no
common ‘Genus’ running through. They instead took to the dictionary and ruled that the Board was
a result of a statue and thus was a part of State.

The Next case is Sukhdev Singh v Bhagat Ram in which Justice Matthew had developed the
Agency and Instrumentality approach which partly advocated for the Functional Approach. Justice
Matthew finally did not take into consideration the Functional approach and settled on the Legal
Approach. It is to be noted that the Legal Approach gives agency to the state of those entities that
the state has created via statute, or over which it has extensive control. The Functional Approach
brings within the ambit of Article-12 all entities that serve a public function.

In the following case RD Shetty v International Airport Authority . The International Airport
Authority was a corporate body constituted under the International Airport Authority Act of 1971. It
invited tenders for running restaurants and snack bars at the Bombay International Airport, and
ultimately accepted the highest bid. This decision was challenged, on the ground that in awarding
the contract, the Authority had failed to abide by its own stipulations, and in treating similarly
situated persons differently, had violated Article 14. Thus the court first established the proposition
that even when the government is acting as a contractor, it is bound by public law obligations of
fairness, non-discrimination, and non-arbitrariness. It also held that these obligations arise both
from Article 14 and general principles of public and administrative law. The Indian SC also relied
on the US Supreme Court case Marsh v Alabama. wherein the Court held that even in a company-
owned town, the public’s constitutional rights would supersede the property rights of any one
person. In the judgement the Court established and expanded on the fact that public function and
governmental character was dependent on how these entities affected the public at large. So,
basically, the Court adopted the language of the ‘Agency and Instrumentality test’, but incorporated
both legal and functional approaches, developing a composite test for state control and public
function in a holistic, case-specific enquiry. The Court also stated that there was no Cut and Dried
formula for taking into consideration problems of such type but the overall facts of this case did
point towards the IAA being a part of the State.

Then came the landmark judgement in Ajay Hasia v Khalid Mujib. In this case, the question was
whether a Regional Engineering College in Srinagar fell within the definition of ‘State’ as per
Article 12. In this case, however, the Court shifted its stance away from the Functional Approach
and focused itself more on State Control as per the Legal Approach. What concerned the Court was
whether the State tried to evade its obligations by hiding behind the corporate veil while
maintaining control over said corporate. It resembled the Corporate Law scenario. So, it concurred
with the R. D. Shetty judgement, to the extent of pointing it into 6 markers of the ambit of State,
five of which dealt more into legal approach, and only one being more about functional approach.
This showed the attitude of the Supreme Court and the Judiciary in general with respect to the
functional test. Ajay Hasia focused on the Shareholding of the company, extensive financial
assistance given by the state or monopolistic tendencies.

We finally arrive to the Pradeep Kumar Biswas v Indian Institute of Chemical Biology
In this, the Court went into the history of Article 12 jurisprudence, and distinguished between a
narrow and broad approach for interpreting Article 12. But in this case, the question wasn’t in a
distinction between functional and legal approach, but between a narrow statutory
approach(wherein it only covered entities created by a statute) and legal approach. In this case, the
Functional Approach started to reach a point of no-use and consequently the court cited R.D. Shetty
and Sukhdev Singh judgements as merely affirming the legal approach.This case can also be known
as the ‘Final Case of the Functional Approach’. Even the dissenting opinions, instead of favouring
the Functional Approach, focused on the Statutory Approach.
The state of the Article 12 Jurisprudence through this judgement now came down only to the tenets
of Legal Approach. The status of the Legal approach became permanent and in the cases to follow
like the Zee Telefims case, the Functional approach became obsolete.

Thus I believe that the Indian Supreme Court has not completely taken the ‘Other Authorities’ term
in the sense it should have. The transition of nation states from completely capitalistic nations to
welfare states does put an undue burden on the citizens as they end up facing exploitation from
various Public-Private Partnerships. Moreover I believe that the Supreme Court should have taken
into account the functional approach/test into consideration as well.