247

CHAPTER -7

THE ROLE OF JUDICIARY AND THE RECENT

DEVELOPMENTS REGARDING ARTICLE 12

I. Judicial Activism

Judicial Activism does not carry any statutory definition. It connotes

that function of the judiciary which represents its active role in promoting
justice.

Judicial activism, to defme broadly, is the assumption of an active role

on the part ofthe Judiciary1• In the words of Justice J.S. Verma, Judicial Activism
must necessarily mean "the active process of implementation of the rule of
law, essential for the preservation of a functional democracy".

The jmist, speaking ofjudicial activism in the modem context, explores

how justice to the individual or group of individuals or to the society in general
is ensured through the active participation of the court, particularly as against
public agencies.

Judicial Activism is an ascriptive tetm. It means different things to

different people. While some may exalt the term by describing it as judicial
creativity, dynamism of the judges, bringing a revolution in the field of human
rights and social welfare through enforcement of public duties etc., others
have criticized the term by describing it as judicial extremism, judicial terrorism,
transgression into the domains of the other organs of the State negating the
constitutional spirit etc.

The Indian republic, in principle, has broadly accepted the Montesquian

anatomy of State as a trinity of instrumentalities consisting of the Legislatm·e,
the Executive and the Judiciary. Following the theory of separation of powers,

1. Chaterji, Susanta, "For Public administration": Is Judicial Activism Really Deterrent

to Legislative Anarchy and Executive J)lranny? ". The Administratm; Vol. XLII, April-
June 1997, at 9,11.
 248

organs of a mode1n government - Legislature, Executive and Judiciruy - are

entrusted with three different functions, viz. policy-making, policy-
implementation, and policy-adjudication respectively. But there is a harmony
of purpose among the instrumentalities, as outlined in the Preamble to the
Constitution. The Modus vivendi is comity, not rivalry.

The Administration is required to implement the will of"We the People

of India", as reflected in the Constitution oflndia, in accordance with the laws
and policies adopted thereof. For the attainment of the constitutional goals the
Administration must essentially be responsive to the needs and aspirations of
the people and sensitive to the demands of the rule of law. Open government,
democracy, transparency and accountability are some of the significant values
that should imorm the democratic institutions of the contemporruy polity.
However, other contrruy outcomes may result if any one or more of the three
organs come to be divested or robbed of the original ideology. When value-
erosion or operational aberration takes place, mismatch follows and cracks
surface; governance strays off its orbit resulting in goal-derailment and
administrative disaster2 • That is why, the Judiciruy, in any system of good
governance, is entrusted with the power of judicial review of administrative
actions as 'sentinel in qui vive '.

The realist school of jurisprudence exploded the myth that the judges
merely declared the pre-existing law or interpreted it and asserted that the
judges made the law. It stated that the law was what courts said it was.

Theoretically, though, the Judiciruy is expected to adjudicate or evaluate

the policies promulgated by the Legislative or Executive wing of the
government, it, equally importantly, checks excesses committed by the other
two branches and enforces the rights of the people in case of default or distortion
by the Legislature and executive in the discharge of duties, using the power of
judicial review.

2. Dey, Bata K., "Defining Good Governance", Indian Journal ofPublic Administration,
Vol. 44, July-Sept. 1998 at 412,419.
 249

The Judiciary is looked upon today, perhaps more than ever before, for
removal of the maladies in public life. One reason may be the general
disenchantment of people for the other limbs of government. While the
Legislature and Executive in a parliamentru.y from of government are exposed
to the pulls and pressures of the electoral forces, the judiciary well perfonns
the entrusted task of holding the scale of justice even and aloft .

The transition from the colonial administration to the administration of

a welfare state has generated onerous responsibilities for the Administr~tion

for securing and promoting the legitimate interests of the people. Today, the
government has to undertake multifarious political, social and economic
activities in discharge of its constitutional responsibilities and in the process ·
exercise of a large meas'ure of discretionary power becomes inevitable. The
increase of administrative power is fraught with the danger of its abuse.

Failure to use, as well as abuse, of its power by the Administration is

sure to disturb the heart-beat of social aspiration, thereby, necessitating
appropriate correctional therapy. The judiciru.y operates as a mechanism of
this correction and judicial activism serves as potent pacemaker to correct as
fru; as possible, malfunctioning in violation of the constitutional mandates and
to stimulate the State organs to function in the right direction. Balanced judicial
activism is, therefore, indispensable for imparting the needed vitality to the
mle of law in a welfare state 13 •

Failure on part of the legislative and executive wings of the Govemment

to provide 'good govemance' makes judicial activism an imperative. The
illustration of a few mling of the Supreme Court of India evolving new
dimensions of public law having implications for public administration would
bring out the impact of judicial activism.

In a series of path-breaking pronouncements, for instance, S. P Gupta

1~ Union ofIndict, the Supreme Court of India, through public interest litigation,

3. Bhattacharjee, G.R. "Judicial Activism: Its Message for Administrator". The

Administrator; Vol. XLII, April-June 1997, at 31,32.
4. AIR 1982, SC 149.
 250

has granted access to persons inspired by public interest to invite judicial

intervention against abuse of power or misuse of power or inaction of the
government. Not only was the requirement of locus standi liberalized to
facilitate access but the concept ofjustifiability was widened to include within
judicial purview actions or inactions that were not considered to be capable of
resolution through judicial process according to traditional notions of
justifiability. Most of these cases had witnessed gross and callous failure of
neglect on the part of public functionaries or administrative authorities in the
discharge of their public duties. The Supreme Court of India has come to the
rescue a grossly under-paid workers, 5 bonded labour, 6 prisoner, 7 pavement
dwellers, 8 under-tt.ial-detenues, 9 inmates of protection homes, 10 victims of
Bhopal gas disaster11 and so on and so forth.

By may landmark judgements, for instance, Rat/am Municipality v.

Virdichancfl- 2 , the Apex Court has activated the administrative machinery when
they failed to perform their legal obligation. The judicial process has achieved
not merely initiation of action in case of inaction, but also monitored and
channelised the action in the proper direction.

The Supreme Comt had demonstrated that it is truly a sentinel on the

qui vive in petitions relating to scandals involving the high and the mighty and
gave necessru.y directions to the investigating agencies. In Vineet Narain v.
Union oflndial 3 Apex Court took upon itself the task of monitoring the
investigations pertaining to the Hawala transactions.
One of the known means for getting clean and less polluted persons to
govern the country is their exposme to public scrutiny. The Court tuled that

5. Peoples Union for Democratic Right v. Union ofIndia, AIR 1982 SC 1473.
6. Bandhua Mukti Morcha v. Union ofIndia, AIR 1984 SC 802.
7. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
8. Olga Tellis v. Bombay Municipal Corporation, ( 1985) 3 SCC 545.
9. Hussainara Khatoon v. Satte ofBihm; AIR 1979 SC 1360.
10. Upendra Baxi v. State ojUP, (1983) 2 SCC 308: (1986) 4 SCC 106.
11. Union Carbide Corporation v. Union ojlndia, (1991) 4 SCC 584.
12. AIR 1980 SC 1622.
13. AIR 1996 SC 3386.
 251

voters; right to know antecedents of contesting candidates is a facet of Art.

19(1) (a) and that such disclosure is necessary for survival of true democracyl 4 •

In Common Cause 1~ Union oflndial 5 the Supreme Court cancelled the

allotment of petrol pumps made by the then Minister of State of Petroleum and
Natural Gas, Capt. Satis Sharma on the ground of nepotism and malafide and
passed severe structures against the minister.

The activist tlust of the Supreme Court for ensuring good governance
and probity in public life is brought to light by the above-mentioned illustrative
cases.

The above decisions indicate a demonstration of ad hocism due to the

deficiency of the institutions (the Legislature and Executive). The Comts by
taking resort to judicial activism are encroaching upon the exclusive domain
of the other instrumentalities inasmuch as the goal of the Court is to render
justice.

It is the primary duty of the Executive to provide a fair and just

government. It is not for the Comts to function as an extended arm of the
Executive 16 . However, as has rightly been observed, judicial power or activism
is inversely proportional to the political process. The weaker the political
process, stronger is the judicial power; the reverse is true in part. By means of
judicial activism, the Judiciary merely assists in the process of governance; it
does not take over the functions of the Executive wing of the government.

The aforesaid judicial activism has alone led the public administration
to be conscious and conscientious of public interest as its goal.

Judicial activism is not just a matter of serial affirmation of judicial

power over other domains and instrumentalities of state power; it is as much a
narrative of evolution of new constitutional cultures of power. No panacea for

14. People Union for Civil Liberties v. Union ofIndia, AIR 2003 SC 2363.
15. AIR 1996 SC 3538.
16. Palkhiwala, Nani, "Role ofJudiciary: Government by the Judiciary". CMLJ, Vol. 31,
Oct-Dec d1995, at 193.
 252

the nation's constitutional ills, it offers a kind of chemotherapy for the

carcinogenic body politic. And even the therapeutic uses of judicial power
change with the changing contexts of domination and resistance 17 .

Judicial activism has made a number of salutary, wholesome and

beneficial effects on the public administration to make it effective and
participative. But one must not be overenthusiastic in thinking that com1s can
remedy all the ills in public life.

Judicial activism in India encompasses an area oflegislative vacuum in

the field of human rights. Judicial activism reinforces the strength of democracy
and reaffirms the faith of the common man in the 'rule of law'. The judiciary,
however, can act only as an alarm clock but not a~ a timekeeper. After giving
the alarm call it must ensure to see that the executive performs its duties in the
manner envisaged by the Constitution.

It would be seen that judicial activism which is the search for the spirit
oflaw, has been profitably used by powerless minorities, such as bonded labour,
prison inmates, under trial prisoners, sex workers and such other powerless
minority group as are crusading for protection of human rights of women and
children or seeking redressal against governmental lawlessness, or relief against
developmental policies which benefit the have at the cost of the have nots.

Judicial activism, however, is not an unguided missile. It has to be

~
controlled and properly channelised. Courts have to function within established
parameters and constitutional bounds. Decision should have a jurisprudential
base with clearly discernible principle. Limit of jurisdiction cannot be pushed
back so as to make them irrelevant. Court have to be careful to see that they do
not overstep their limits because to them is assigned the sacred duty of guarding
the Constitution. People of this country have reposed faith and trust in the
courts and, therefore, the judge have to act as their trustees. Betrayal of that
trust would lead to judicial despotism which posterity would not forgive 18 .
17. Prof. U. Baxi, Preface to Sathe, S.P. Judicial activism in India: Transgressing Borders
and Enforcing Limits, Oxford University Press, 2005 edition, at xvi
18. Anand, A.S., Judicial Review- Judicial Activism-Need for Caution, 42 JILl (2000) at
157.
 253

It must always be remembered that the judges in exercise of their power

of judicial review are not expected to decide a dispute or controversy which is
purely theoretical or for which there are not judicially manageable standards
available with them. The courts do not, generally speaking, interfere with the
policy matters of the executive unless the policy is either against the Constitution
or some statute or is actuated by mala fides. Policy matter, fiscal or otherwise,
are thus best left to the judgement of the executive. The danger of judiciary
creating a multiplicity of rights without the possibility of adequate enforcement
will in the ultimate analysis be counter productive and undermine the credibility
of the institution. Comt cannot 'create rights' where none exist nor can they
go on making orders which are incapable of enforcement or violative of other
laws or settled legal principles 19 •

Article 142 of the Constitution of India vests in the Supreme Court

powers of very wide amplitude. The plenary jurisdiction under article 142 is
the residual source of power which the Supreme Comt may draw upon as
necessary whenever it is just and equitable to·do so and in particular to ensure
the observance of the due process of law, to do complete justice between the
parties while administering justice according to law. In Supreme Court Bar
Association v. Union of India and another0, while dealing with the power
under article 142 of the Constitution, a constitution bench of the Supreme
Court said:

It, however, needs to be remembered that the powers conferred

on the Court by Article 142 being curative in nature cannot be
construed as powers which authorize the Court to ignore the
substantive rights of a litigant while dealing with a cause
pending before it. This power cannot be used to 'supplant'
substantive law applicable to the case or cause under
consideration of the Court. Article 142, even with the width
of its amplitude, cannot be used to build a new edifice where

19. Ibid.
20. (1998) 4 sec 409
 254

none existed earlier, by ignoring express statutory provisions

dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly ... The Supreme
Comt in exercise of its jurisdiction under Article 142 has the
power to make such order as is necessary for doing complete
justice 'between the parties in any cause or matter pending
before it'. The very nature of the power must lead the Court
to set limits for itself within which to exercise those
21
powers ....

Thus, even under article 142(1) of the Constitution, the Supreme Court
held that the court does not have any jurisdiction to make an order plainly
inconsistent with the express statutory provisions of substantive law, much
less, inconsistent with any constitutional provision.

It is in fact stating the obvious to say that courts must, while exercising
the power ofjudicial review, exercise proper restraint and base their decisions
on recognized doctrines or principles of law. Judicial activism and judicial
restraint are two sides of the same coin. It is therefore essential to remember
that judicial restraint in the exercise of its functions is of equal importance for
the judiciary while discharging its judicial obligations under the Constitution.
With a view to see that judicial activism does not become 'judicial adventurism'.
The courts must act with caution and proper restraint. They must remember
that judicial activism is not an unguided missile and failure to bear this in
mind would lead to chaos. People would, thus, not know which organ of the
state to look to for ensuring check on the abuse or misuse of power.

It would be prudent to remember the following observations of Lord

Justice Lawton in Laker Airways22 •

In the United Kingdom aviation policy is determined

by ministers within the legal framework set out by

21. Ibid.
22. 1977 (2) WLR 234 at 267.
 255

Parliament. Judges have nothing to do with either policy

making or the carrying out of policy. Their function is
to decide whether a minister has acted within the powers
given him by statute or the common law. If he is declared
by a court, after due process oflaw, to have acted outside
his power, he must stop doing what he has done until
such time as Parliament gives him the powers he wants.
In a case such as this I regard myself as a referee. I can
blow my judicial whistle when the ball goes out of play;
but when the game restarts I must neither take prut in it
nor tell the players how to play.

Thus 'judicial whistle' needs to be blown for a limited purpose and

with caution. It needs to be remembered that courts cannot run the government
nor the administration indulge in abuse or non-use of power and get away with
it. The courts have the duty of implementing the constitutional safeguards that
protect individual rights but they cannot push back the limits of the Constitution
to accommodate the challenged violation.

All it means is that judges ru·e expected to circumspect and self

disciplined in the discharge of their judicial functions. It is an onerous duty
cast on the judiciary to see that either inadvertently or overzealously, they do
not allow the instrumentality of the courts to be polluted thereby eroding public
oust and confidence in the institution.

Judicial activism is a delicate exercise involving creativity. Great skill

is required for innovation. Caution is needed because of the danger of populism
imperceptibly influencing the psyche. Public adulation must not sway the judges
and personal aggran~zement must be eschewed. It is imperative to preserve
the sanctity and credibility of judicial process.

II. Public Interest Litigation

The liberalization of locus standi and the conceptualization of Public
Interest Litigation in the area of personal liberty was possible in India by judicial
 256

activism of certain judges of the Supreme Court, particularly justice Krishna

lyer and justice Bhagwati. The Court, by using postManeka tools, contributed
for jurisdictional liberalism to humanize our judicial system.
The Court started the PIL with the prison conditions. Mrs Kapila
Hingorani, a Supreme Court advocate, filed a petition based on a seties · of
Articles in a national daily exposing the plight of Bihar under trial prisoners,
most of whom had served for a longer period than that would have been to
their credit if convicted23 •

The Supreme Court was anxious to see that the fundamental rights were
available to the poor and the destitute in India in theory as well as in practice24 •

This way court broke the old traditional theory and embarked upon
unorthodox and unconventional strategies for btinging justice to the poor and
the Court moved even on a letter addressed to the Court25 • In Sunil Batra, the
Court treated a letter written by Batra from the Tihar Jail to one of the judges
of the Supreme Court as a writ petition for habeas Corpus 26 •

In 1980, Justice Bhagwati started the innovative use of judicial power

in a rather informal way. He started entertaining letters on behalf of
disadvantaged people and treated some of them as writ petitions. One such
letter was addressed by two Professors of Law on behalf of the inmates of
Agra Protective Home run by the State of Uttar Pradesh27 . Then there was a
letter written by a social science researcher, Dr. Vasudha Dhagamwar,

23. Hussainara Khatoon, v. State ofBihm; AIR 1979 SC 1360 (Case No.1) AIR 1979 SC
1369 (Case No.2), AIR 1979 SC 1377 (Case No.3), AIR 1979 SC 1819 (Case No.4).
24. Ghouse, Mohmmad, 'Human Rights and Fundamental Rights'.ll IBR (1984) 396,
413.
25. Chaturvedi, M.N. Liberalizing the Requirement ofStanding in Public Interest Litigation,
26 JILl (1984) 52, Cassels, Jamie, Judicial Activism and Public Interest Litigation in
India. Attempting the Impossible? 37 AJCL (1989) 495, 499.
26. Sunil Batra v. Delhi Administration, AIR 1980 SC 1579, see also, Khatri v. State of
Bihar; AIR 1981 SC 928 (first case), Khatri v. State of Bihm; AIR 1981 SC 1068.
(second case).
27. Upendera Baxi v. State of UP (1981) 3 Scale 1137.
 257

complaining of the detention of several under trial prisoners in jails in the state
of Bihar, and particularly of four tribal boys who were confmed in jail for
nearly eight years 28 . The Court directed the lower Court to expedite the case.
The next case which relates to the release of the petitioner from the jail, was
brought by the Free Legal Aid Committee, Hazaribagh29 •

The practice of entertaining letters as petitions, which was initiated and

followed on an ad hoc basic by some of the justices was ultimately
institutionalized by justice Bhagwati in the Judges Appointment and Transfer
Case 30 • It laid down that where legal injury was caused or legal wrong was
done to a person or class of persons who by reason of poverty or disability or
socially or economically disadvantaged position could not approach the court
for judicial redress, any member of the public acting bonafide could bring an
action in court seeking judicial redress. This theme was further developed by
Bhagwati, J., in Asiacf 1 case, where the Court treated a letter written by a
social action group as writ petition.

It was alleged in the letter that there were violations of various labour
laws in relation to workmen employed in the construction work connected
with the Asian Games. In the opinion of Bhagwati, J., it would violate their
fundamental right under Article 21. The reasoning given by Bhagwati, J ., was
as follows:

Here the workmen whose rights are said to have been violated
and to whom a life of basic human dignity has been denied
are poor, ignorant, illiterate human's who, by reason for their
poverty and social and economic disability, are unable to
approach the courts for judicial redress and hence the
28. Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939 (First case), Kadra Pahadiya v.
State ofBiha~; AIR 1981 SC 1167 (second case).
29. Sant Birv. State ofBihar, AIR 1982 SC 1470.
30. S.P Gupta v. President ofIndia, AIR 1982 SC 149.
31. Peoples Union for Democratic Rights v. Union ofIndia, AIR 1982 SC 1473, see also
Sheela Barse v. State ofMaharashtra, AIR 1983 SC 378; veena Sethi, v. State ofBihm~
AIR 1983 SC 339
 258

petitioners have under the liberalized rule of standing locus

standi to maintain the present Writ petition espousing the cause
of the workmen32 .

Elaborating the State attitude towards PIL the lemned judge suggested:

The state public authority which is arrayed as a respondent in

public interest litigation should in fact, welcome it, as it would
give it an oppmtunity to right a wrong or to redress an injustice
done to the poor and weaker sections of the community whose
welfare is and must be the prime concern of the state or public
authority33 •

In Sheela Barse s34 case, the Court treated a letter from a journalist as
writ petition, complaining of custodial violence to women prisoners while
confmed in police lock up. In another letter the shocking situation of Bihm·
State administration was brought to the notice of the Supreme Court, where
certain prisoners had already been in jail for a period of over 25 years without
any justification35 .
The letter was addressed to justice Bhagwati by the Free legal Aid
Committee, Hazaribagh. Which admitting the letter as writ petition Bhagwati,
J., observed:
It is the solemn duty of this Court to protect and uphold the
basic tights of the weaker sections of the society and it is this
duty we are trying to discharge in entertaining this public
interest litigation36 •
In Bandhua Mukti Morcha 1~ Union of Jndid 7 , the court brought the
public interest litigation as an 'approptiate' proceeding under Article 32 and
32. Ibid. at 1483.
33. Ibid. at 1478, see also State ofHimachal Pradesh v. A. Parent ofa student ofMedial
College, Simla, AIR 1985 SC 910.
34. AIR 1983 SC 378.
35. Miss Veena Sethi v. State ofBiha~; AIR 1983 SC 339
36. Ibid. at 340.
37. AIR 1984 SC 802/
 259

226. The learned judge has given the meaning of 'appropriate' proceeding to
mean:

A member of the public may move the court, even by just

writing a letter, because it would not be right or fair to expect
a person acting pro-bono publico to incur expenses out of his
own pocket for going to a lawyer and preparing a regular writ
petition for being filed in court for enforcement of fundamental
right of the poor and deprived sections of the community and
in such a case, ~ letter addressed by him can legitimately be
regarded as an 'appropriate' proceeding' 8 •

This way Bhagwati, J., put the ad-hoc arrangement on a sound

jurisprudential foundation. While justice R.S. Pathak criticized the practice of
entertaining letter as writ petitions and insisted on certain formalities. He said:

While this Court has readily acted upon letters and telegrams
in the past, there is need to insist now on an appropriate
verification of the petition or other communication before
acting on it ... There may be exceptional circumstances which
may justify the waiver of the rule 39 .

Two out of three judges expressed the opinion that the letters or other
communication should be addressed to the whole Comt, that is, to the chief
justice and his companion judges and not to a particular, judge40 . A change
over in this wavelength can be seen in the Neeraja s41 , case where the Bench,
consisting ofBhagwati and Sen, JJ., treated the letter from a journalist as writ
petition but in the light of the opinion of the Court in Stone Quarries42 , it
requested the advocate to file a regular writ petition in substitution of this
letter. This case relates to the rehabilitation of bonded labourers. To avoid the

38. Ibid. at 814 (emphasis added).

39. Ibid. at 840-41.
40. Ibid. at 841 per Pathak, J. at 848,per A.N. Sen, J.
41. Neeraja Chaudhary v. State ojMP, AIR 1984 SC 1099.
42. BandhuaMuktiMorchav. Union ojindia, AIR 1984 SC 802.
 260

above difficulty when Bhagwati, J., became the chief justice of India. he set
up a Public Interest Litigation Cell in the Supreme Court. Now a letter received
by the Comt is processed by this Cell.

The Court utilized the innovative technique of appointing inquiry

commission, whenever it thought fit, for the purpose of ascertaining facts in
PIL cases. In Mukesh Advani43 the Court treated a letter as writ petition and
directed the District judge, Bhopal to enquire and report about the working
conditions in flagstone mines at Raisen. It relied on the report of the District
Judge who found that there was no bonded labour.

In Sheela Barse 44, the letter for release of children below the age of 18
years detained in jails all over India, was treated by justice Bhagwati as writ
petition. Now the tendency of the social activist was to seek judicial intervention
in only public matter through PIL. A series of PIL petitions were filed in the
Supreme Court by journalists, social action groups and pavement dwellers of
Bombay facing the threat of forcible eviction and demolition of their dwelling45
and the Court maintained the writ petition.

A demand for affirmative action in cases of executive inaction, misaction

or slow action reached the Court in Umed Ram Sharma4 6 where the Court held
that residents in hilly areas affected by denial of proper roads and non-
availability of roads had locus standi to maintain the petition for proper
direction. In this case the Bench, consisting of R. S. Pathak, Sabyasachi
Mukherjee and V.D. Tulzapurkar47 JJ., although a critique ofPIL allowed PIL
to operate.

In MC. Mehta4 8, a case on environmental pollution, Bhagwati, C.J.,

speaking on behalf of five judges Constitution Bench, laid down two important
principles. First, we 'must not forget that letter would ordinarily be addressed

43. MukeshAdvani v. State ofMP, AIR 1985 SC 1363.

44. Sheela Barse v. Union oflndia, AIR 1986 SC 1773 (Second case).
45. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
46. State ofHP v. Umed Ram, AIR 1986 SC 847.
47. Tulzapurkar, Judiciary: Attacks and Survival, AIR 1983 (Jour.) 9.
48. MC. Mehtav. Union oflndia, AIR 1987 SC 1086.
 261

by poor and disadvantaged persons or by social action groups who may not
know the proper form of address". Secondly, about the requirement of affidavit,
the learned Chief Justice observed:
If the Court were to insist on an affidavit as a condition of
entertaining the letter the entire object and purpose of
epistolary jurisdiction would be frustrated because most of
the poor and disadvantaged persons will then not be able to
have easy access to the court and even the social action group
will fmd it difficult to approach the Court49 .

The above liberal approach adopted by Bhagwati, C.J., is a welcome

step, however, it is submitted, that the Court should think over some limit at
least to enquire about the genuineness of such letter in order to prevent the
misuse of PIL.

The PIL has been proved very useful in ameliorating the conditions of
girls in Agra Protective Homes 50 and of children in remand homes and
obsetvation homes 5 1 . It has been successful in providing compensation to poor
victims of police firing in Bihar by evolving niew right to compensation for
the violation of Article 21. 52 It is true that the Supreme Court has regarded the
poor and the disadvantaged as entitled to preferential consideration53 but in
few cases the Court could not provide actual relief asked therefore 54 . In some
cases where the matter of large mass of poor people was involved the Court
left with a direction to the government to improve their lot55 • The Cowt felt its
49. Ibid. at 1090.
50. Upendra Boxi v. State UP, AIR 1987 SC 191, see also, Vikram Deo Singh Tomarv.
State ofBihm; AIR 1988 SC 1782.
51. Sheela Barse v. Children Aid Societ)~ AIR 1987 SC 656.
52. People Union for Democratic Rights v. State of Bihar, AIR 1987 Sc 355.
53 Bihar legal Support Societ)~ New Delhi v. C. J. ofIndia, AIR 1987 SC 38,39.
54. Vincentv. Union oflndia, AIR 1987 SC 990, see also, Sivarao, v. Union oflndia, AIR
1988 sc 952.
55. Sodan Singh v. New Delhi Municipal Committee, AIR 1989 Sc 1988. Kishen Pattanayak
v. State ofOrissa. AIR 1989 SC 677, see for comment Pande, B.B., When They came
to the Court Seeking Basis Needs Alternatives to the Flawed Response. 31 JILl 360
(1989) and XXV ASIL (1989) 50.
 262

concern in the matter of death of a child, victim of police torture through PIL
and awarded compensation for violation of Article 21 56 .

It extended its arms to prevent the death in police lockups and custody57
and to protect Chakma refugees settled in Arunachal Pradesh from forceful
eviction. 58 The similar power is widely used by the High Court while exercising
its power under Article 226 59 • While admitting a letter written by tribal woman
alleging police atrocities the court thought it a duty of the Court in PIL cases to
grant relief to the needy persons who were really oppressed, illiterate and
uneducated and observed:

On the other hand we do not want to encourage such sort of

litigation, otherwise the traditional litigation will suffer and
the courts of law instead of dispensing justice will have to
take upon themselves administrative and executive funcitons 60 .

The Court is now thinking about the limits and 'Caution' in utilizing
the extraordinary strategy ofPIL technique. However, in the matter of seminal
importance, e.g., public health61 and environmen~ 2 the Court has shown its
deep concern in expanding the PIL process. The Court extended Article 21
even to include the right to property to provide remedy to the victims of riots
Mrs. Indira Gandhi in which their properties were destroyed due to arson and
looting63 • In a PIL normally any public spirited person or organization comes

56. Peoples Union for Democratic Rights v. Police Commissioner, Delhi Police, (1989) 4
SCC 730, SAHEL! a Women s Resources Centre v. Comm1: OJPolice, Delhi, AIR 1990
SC 513, Nilabati Beher v. State of Orissa, AIR 1993 SC 1960.
57. D.K Basuv. StateofWB.,AIR1997SC610.
58. National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC
1235.
59. Rajasthan Kisan Sangthan v. State, AIR 1989 Raj, 10.
60. Ibid. at 16.
61. A.S.Mittalv. State ofU.P AIR 1989 SC 1570, Paramanand Katarav. Union oflndia,
AIR 1989 SC 2039, KC. Malhotra v. State, AIR 1994 MP 48.
62. Subhash Kumar v. State ofBihar AIR 1991 SC 420, Law Society ofIndia v. Fertilizers
and Chemical Travancore Ltd., AIR 1994 Ker, 308.
63. R. Gandhi v. Union ofIndia, AIR 1989 Mad. 205.
 263

before the Court for obtaining relief in favour of persons economically or

socially oppressed and unable to approach the court for vindication of their
fundamental or legal right complaining against State action or inaction. A unique
application as PIL was moved before the Calcutta High Court where the State
itself came up before the court championing the cause of numerous small
depositors of the residuary non-banking companies 64 . In this historic case the
court laid down that the State could move public interest litigation for protection
and vindication of the legal and constitutional right of the under privileged
and the determinate class of persons who were unable to approach the court
who sometimes were not even aware of their rights to save themselves from
exploitation. The above interpretation, it is submitted, will go a long way in
the effective performance of State's duty to protect the public interest through
PIL.
The PIL movement in India, espousing the cause of unorganized and
unrepresentative people, itself has been unorganized and most of the cases
were initiated by law professors, jomnalist, social scientists and lawyers who
had no permanent plan to improve their lot. The points raised by Pathak65 , J.,
about the grave danger inherent in a practice where a mere letter was treated as
a petition from a person whose antecedents and status were unknown or
uncertain, could not be overlooked. The warning given by learned judge that
'the Court must be even vigilant against the abuse of its process' requires
serious consideration confide. Nilimd'6 discloses such a situation, where a letter
was received from a woman complaining of illegal confmement, the Court
treated the letter for urgent action. The letter was placed before the court after
a lapse of two and half months. In this respect the court directed the matter to
be placed before the Chief Justice oflndia for taking action against responsible
64. State ofW.B. v.- Union ofIndia, AIR 1996 Cal. 181: .Ws Overland Investment Ltd. v.
State, AIR 1997 Cal. 18.
65. Bandhua Mukti Marcha, v. Union ofIndia, AIR 1984 SC 802, at 840 per Pathak, J.,
this point has also attracted the attention of the academics, see, for example, Singh,
Parmanand. Thinking About the Limits ofJudicial Vmdication ofPublic Interest. (1985)
3 sec 1 (Jour).
66. Nilima Priyadarshini v. State ofBihm; AIR 1987 SC 2021 (First Case), Nilima v. State
ofBihm; AIR 1989 SC 490 (Second Case).
 264

officials for such delay. Subsequently it was found that the letter was forged
and the girl prayed for the prosecution of persons committing such forgery.
The court taking the case as unfortunate stmy, however, did not proceed with
the prosecution67 . Such a case brought unnecessary suffering and embarrassment
to the Court as well as to the girl for whose benefit the PIL was meant. It is
submitted that there is a need to put some check on PIL to avoid its misuse.
However, the Court is now thinking to protect the society from the called
"Protectors" to prevent the misuse of PIL. Chhetriya Pardushan Sangharsh
Samiti 68 • Sabyasachi Mukharji, C.J., cautioned:
While it is the duty of this court to enforce fundamental rights,
it is also the duty of this court to ensure that this weapon under
Article 32 should not be misused or permitted to be misused
creating a bottleneck iri the superior court preventing other
genuine violation of fundamental rights being considered by
the Court. That would be an act or a conduct which will defeat
the very purpose of preservation of fundamental rights 69 •

In another case70 the Court refused to consider a litigation between the

members of the erstwhile Raj family to settle. their own scores as a public
interest litigation. The matter was related to the management of a trust, Savaiman
Singh II Museum. Mukharji. C.J., opined that the issue for the benefit of a
particular section of people for their personal rights could not be a pro bono
publico. The Court laid down some guidelines for PIL in Sub hash Kumar71 to
invoke the jurisdiction of the Court. Justice K.N. Singh opined that recourse to
a PIL proceeding should be taken by a person genuinely interested in the
"Protection of society of behalf of the community". A PIL could not be invoked
by a person or body of persons to satisfy his or its personal grudge and enmity72 .

67. Ibid (Second case).

68. Chhetriya Pardushan Mukti Sangharsh Samiti v. State of UP AIR 1990 SC 2060.
69. Ibid. at 2062.
70. RamsharanAutyanuprasi v. Union ofindia, AIR 1989 SC 549.
71. SubhashKumarv. State ofBihar, AIR 1991420.
72 Ibid. at 424, for a critical comment on this issues, see, Dhavan Rajeev. Law as Struggle:
Public Interest Law in India. 36 JILl (1994) 302.
 265

Any personal interest cannot be enforced through the process of this Court
under Article 32 of the Constitution in the garb of a PIL Singh, J., further
observed:

It is duty of this Court to discourage such petitions and to

ensure that the cause of justice is not obstructed or polluted
by unsctupulous litigants by invoking the extra ordinary
jurisdiction of this cowt for personal matters73 ·•

It is notable that in order to discourage people from bringing petitions

which are motivated by merely personal interest in the name of public interest,
the court went to the extend of imposing heavy cost of Rs. 10,000/- on the
petitioners74 • In the matter of a PIL involving issues of constitutional law the
cowt expected that the petitioners having no expert knowledge in that field
should refrain from filing such petition75 . The Court also initiated contempt
proceedings and punished the contemner with fine and imprisonment in
appropriate cases76 • It is submitted that the use ofPIL should be limited for the
incapable, poor and illiterate people who are unable to enforce their rights.

In view of the operations by the cowt on a wider canvass of judicial

review, a potent weapon was forged by the Supreme Court by way of Public
Interest Litigation (PIL) also known as social action litigation. The Supreme
Court has ruled that where judicial redress is sought in respect of a legal injwy
or a legal wrong suffered by persons, who by reason oftheir poverty or disability
are unable to approach the court for enforcement of their fundamental rights,
any member of the public, acting bona fide, can maintain an action for judicial
redress. Thus, the underprivileged and the downtrodden have secured access
to court through the agency of a public-spitited Person or organisation. This
weapon was effectively used by the Supermen Court and the High Courts,
being Constitutional courts. To a large extent from 1980 onwards77 .
73. Ibid.
74. Prayag Vyapor Manda! v. State ofU.PAIR 1997 All. I.
75. S. P Anand v. HD.Deve Gowda, AIR 1997 SC 272.
76. In Re: Dr. D. C. Saxena v. Han 'ble the ChiefJustice ofIndia, AIR 1996 SC 2481.
77. Anand, AS., Judicial Review- Judicial Activism- Need for Caution, 42 JILL, (2000)
at 155.
 266

With a view to retain legitimacy and its efficacy the potent weapon of
PIL forged for the benefit of the weaker sections of society and those who, as
a class, cannot agitate their legal problems by themselves has to be used carefully
so that it may not get blunted by wrong or overuse. Care has to be taken to see
that PIL essentially remains Public Interest Litigation and does not become
either Political Interest Litigation or Personal Interest Litigation or Publicity
Interest Litigation or used for persecution. If that happens, it would be
unfortunate. PIL would loose its legitimacy and the credibility of the courts
would suffer. Finding the delicate balance between ensuring justice in the
society around us and yet maintaining institutional legitimacy is a continuing
challenge for the higher judiciaty. The court must be careful to see that by
their over zealousness they do not consciously or unconsciously cause
uncertainty and confusion in the law. In that event, the law will not only develop
along uncertain lines instead of straight and consistent path but the judiciary's
image may also in the bargain get tarnished and its respectability eroded. That
would be a sad day. Judicial authmitarianism cannot be permitted under any
circumstances78 •

The expanded concept of locus standi in connection with PIL, by judicial

interpretation form time to time, has expanded the jurisdictional limits of the
courts exercising judicial review. This expanded role has been given the title
of 'judicial activism' by those who are critical of this expanded role of the
judiciary. The main thrust of the criticism is that the judiciary by its directives
to the administration is usurping the functions of the legislatures and of the
executive and is running the country and, according to some, ruining it. What
these critics of the judiciary overlook is that it is the tardiness of legislature
and the indifference of the executive to address itself to the complaints of the
citizens about violations of their human rights which provides the necessity
for judicial intervention. In case where the executive refuses to cany out the
legislative will or ignores or thwarts it, it is surely legitimate for courts to step
in and ensure compliance with the legislative mandate. When the court is

78. Ibid. at 156.

 267

apprised of and is satisfied about gross violations of basic human rights it

cannot fold its hands in despair and look the other way. The judiciruy can
neither prevaricate nor procrastinate. It must respond to the knock of the
oppressed and the downtrodden for justice by adopting certain operational
principles within the parameters of the Constitution and pass appropriate
directions in order to render full and effective relief. If the judiciary were to
shut its door to the citizen who fmds the legislature as not responding and
executive indifferent, the citizen would take to the stTeets and that would be
bad both for the rule of law and democratic functioning of the state. Courts
have come to realise and accept that judicial response to human rights cannot
be blunted by legal bigotry. Courts no longer feel bound by the rigid rule of
locus standi where the question involved is injury to public interest. Judiciruy
in this country has been the most vigilant defender of democracy, democratic
values and constitutionalism.

III. Violation of Fundamental Rights and Judicial Review

Judicial review is the most important and powerful weapon in the hands
of Judiciary through which it protects the individual from the violation of the
fundamental rights~ The scope of judicial review is in three specific areas:
1. Judicial review of legislative action'
n. Judicial review of executive or administrative action;
111. Judicial review of judicial action.
In our Constitution distribution of legislative powers between the
Parliament and the legislatures of the states is defined. Various heads of
legislation are contained in the three lists- union, state and concurrent-contained
in the seventh schedule to the Constitution. The enactments oflegislatures can
be challenged on the ground that they are in conflict with chapter III of the
Constitution or are otherwise ultra vires the Constitution.

Judicial review is not an expression exclusively used in constitutinal

law. Literally, it means the revision of the decree or sentence of an inferior
court by a superior court. Under general law, it works through the remedies of
 268

appeal, revisioin and the like, as prescribed by the procedural laws of the land,
irrespective of the political system which prevails. Judicial review has, however,
a more technical significance in public law, particularly in countries having
written constitutions. In such c-ountries it means that courts have the power of
testing the validity of the legislative as well as other governmental actions.
The necessity of empowering the courts to declare a statute unconstitutional
arises not because the judiciary is to be J?ade supreme but only because a
system of checks and balances between the legislature and the executive on
the one hand and the judiciary on the other hand provides the means by which
mistakes committed by one are corrected by the other and vice versa. The
function of the judiciary is not to set itself in opposition to the policy and
politics of the majority rule. On the contrary, the duty ofthe judid&ry is simply
to give effect to the legislative policy of a statute in the light of the policy of
the Constitution. The duty of the judiciary is to consider and decide whether a
particular statute accords or conflicts with the Constitution and make a
declaration accordingly79 .

The legislature, the executive and the judiciary are three co-ordinate
organs of the state. All the three are bound by the Constitution. The ministers
representing the executive, the elected candidates as members of Parliament
representing the legislature and the judge of the Supreme Court and the High
Courts representing the judiciary have all to take the oaths prescribed by the
third schedule to the Constitution. When it is said, therefore, that the judiciary
is the guardian of the Constitution, it is not implied that the legislature and the
executive are not equally to guard the Constitution. For the progress of the
nation, however, it is imperative that all the three wings of the state function in
complete hatmony80 •

A judicial, decision either stigmatises or legitimises a decision of the

legislature or of the executive. In either case the court neither approves nor
condemns any legislative policy, nor is it concerned with its wisdom or

79. Anand, AS., Judicial Review- Judicial Activism- Need for Caution, 42 JILL, (2000)
at 149.
80. Ibid.
 269

expediency. Its concern is merely to determine whether the legislation is in

conformity with or contrary to the provisions of the Constitution. It often
includes consideration of the rationality of the status. Similarly, where the
court strikes down an executive order, it does so not in a spirit of confrontation
or to assert its superiority but in discharge of its constitutional duties and the
majesty of the law. In all those cases, the court discharges its duty as a judicial
sentinel 81 .

When the validity of an Act is challenged before a comt of law, the

judiciary is required to consider the constitutionality of the statute on the
touchstone of the parameters fixed by the Constitution. It is no reflection either
on the government or on the Parliament that their views as to constitutionality
are again being reviewed by the judiciary. In interpreting the existing law, that
is to say, what the law is, the courts are required to keep the particular situation
in view and interpret the law so as to provide a solution to the particular problem
to the extent possible. This is a legitimate exercise by the judiciary of its
constitutional obligation by virtue of the role assigned to it in the constitutional
scheme. The gaps in the existing law, which are filed by updating the law,
result in the evolution of juristic principles, which in due course of time get
incorporated in the law of the land and thereby promote the growth oflaw82 •

Judicial review is an essential component of the rule oflaw, which is a

basic feature of the Indian Constitution. Every state action has to be tested on
the anvil of rule of law and that exercise is performed, when occasion arises
by reason of a doubt raised in that behalf in the courts. This well-established
constitutional principle of the existence of the power ofjudicial review and its
need was indicated by Chief Justice Marshall in Marbury v. Modison 83 :

It is emphatically the province and the duty of the judicial

department to say what the law is. Those who apply the rule
to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the Courts
81. Ibid. at 150.
82. Ibid.
83. 2 LEd. 60, 1 Cranch 137 (1803).
 270

must decide on the operation of each. So if a law be in

opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the Court must
either decide that case conformably to the law, disregarding
the Constitution; or conformably to the Constitution,
disregarding the law; the Court must determine which of the
conflicting rules governs the case. This is of very essence of
judicial duty. If, then, the Courts are to regard the Constitution,
and the Constitution is superior to any ordinary Act of the
Legislature, the Constitution, and no such ordinary act (sic.),
must govern the case to which they both apply . . . why
otherwise does it (the Constitution) direct the judges to take
an oath to support it?

Judicial institutions have a sacrosanct role to play not only for resolving
inter-se disputes but also to act as a balancing mechanism between the
conflicting pulls and pressure operating in a society. Comt of law are the
products of the Constitution and the instrumentalities for fulfilling the ideals
of the state enshrined therein. Their function is to administer justice according
to the law and in doing so, they have to respond to the hopes and aspirations of
the people because the people of this country, in no uncertain terms, have
committed themselves to secure justice-social, economic and poitical-besides
equality and dignity to all.

In human affairs, there is a constant recurring cycle of change and

experiment. A society changes as the norms acceptable to the society undergo
a change. The judges have been alive to this reality and while discharging
their duties have tried to develop and expound the law on those lines while
acting within the bounds and limits set out for them in the Constitution.

The progress of the society is dependant upon proper application of

law to its needs and since the society today realises more than ever before its
rights and obligations, the judiciary has to mould and shape that law to deal
with such rights and obligations.
 271

The law has not remained static. The doctrine of exclusivity of

fundamental rights as evolved in Gopalan s case 84 was thrown overboard by
the same Supreme Court, about two decades later in Bank Nationalisation
case85 , and four years later in 1974, in Hardhan Sahas case86 , the Supreme
Court judged the constitutionality of preventive detention with reference to
article 19 also.

Twenty eight years after the judgment in Gopalan s case 87, in 1978 the
Supreme Coutt in Maneka Gandhi s case 88 , pronounced that the procedure
contemplated by article 21 must be 'right, just and fair' and not arbitrary; it
must pass the test of reasonableness and the procedure should be in conformity
with the principles of natural justice and unless it was so, it would be no
procedure at all and the requirement of article 21 would not be satisfied.

Responding to the changing times and aspirations of the people, the

judiciary, with a view to see that the fundamental rights embodied in the
Constitution of India have a meaning for the down-trodden and the under
privileged classes, pronounced in Madhav H askot s case 89 that providing free
legal service to the poor and needy was an essential element of the 'reasonable,
fair and just procedure'.

In Nandini Satpathy v. P. L. Dani90 , the Supreme Court held that an

accused has the right to consult a lawyer during interrogation and that the right
not to make self-incriminatory statements should be widely interpreted to cover
the pre-trial stage also. Again, in Sheela Barse v. State ofMaharashtra91 the
Supreme Court laiddown certain safeguards for arrested persons. In Bandhua
Mukti Morhca s case92 the Supreme Court held that right to life guaranteed by
atticle 21 included the right to live with human dignity, free from exploitation.
84. AIR 1950 SC 27.
85. AIR 1970 SC 564.
86. AIR 1974 SC 2154 .
. 87. AIR 1950 SC 27.
88. AIR 1978 SC 597.
89. AIR 1978 SC 1548.
90. AIR 1978 SC 1025.
91. 1983 (1) sec 96.
92. AIR 1984 SC 802.
 272

The courts have, thus, been making judicial intervention in cases

conceming violation of human rights as an ongoing judicial process. Decisions
on such matters as the right to protection against solitary confmement as in
Sunil Batra v. Delhi Admn, 93 , the right not be held in fetters as in Charles
Sobraj v. Supdt., Central Jai/ 94, the right against handcuffing as in T. V
Vathe.eswaran v. State of Tamil Nadu 9S, the right against custodial violence as
in Nilabati Behera v. State of Orissa96 , the rights of the arrestee as in D.K.
Basu v. State ofWB. 97, or the female employees not to be sexually harassed at
the place of work as in the case of Vzshaka v. State ofRajasthan98 and Apparel
Export Promotion Council v. A.K Chopra99 are just a few pointers in that
direction.

IV. Compensatory Remedy

In many of its decisions, the Supreme Court of India started a new era
of compensatory jurisprudence in Indian legal histmy. The question of
compensation for violation of the fundamental right was considered by the
court, for the first time, in the Khatri 100 case, involving police atrocities. The
question was whether the state was liable to pay compensation to the blinded
prisoners who were blinded by the police force acting not in their private
capacity but as police officials. The court conceded101 that the state is liable for
compensation but it did not pronounce on the issue of compensation as the
fact of blinding was disputed. Even though the fact of blinding was difficult to

93. 1978 (4) sec 494.

94. 1978 (4) sec 104.
95. 1983 (2) sec 68.
96. 1993 (2) sec 476.
97. 1997 (1) sec 426.
98. 1997 (6) sec 241.
99. JT 1999 1999 (1) SC 61.
100. Khatri, v. State ofBihar, AIR 1982 SC 928 (First case). AIR 1981 SC 1068 (Second
case), popularly known as Bhagalpur Blinding cases.
101. Ibid. see also, veena Sethi v. State ofBihar, AIR 1983 SC 339, 137.
 273

prove 102, it is submitted, that the court should have awarded compensation to
the victims.

Failure of the prison administration in extending human treatment to

its inmates is a tragic feature of this country. It is, however, surprising that
when such matters are brought before the court, the state attempted to defend
the lawlessness of its officer. To put an end to this lawlessness, the supreme
Court evolved a new remedy of compensating the victims in Rudal Sah 103 •
This writ petition disclosed a sordid and disturbing state of affairs. Though the
petitioner was acquitted by the Court of Session, Muzaffarpur, Bihar, on June
3, 1968 he was released from the jail on October 16, 1982, that is to say, more
than 14 years after he was acquitted. By this petition, the petitioner asked for
his release on the ground that detention in the jail was unlawful. He also asked
for certain ancillary relieflike rehabilitation, reimbursement of expenses which
he may incur for medical treatment and compensation for the illegal
incarceration. The court held that the detention was illegal and passed an order
for payment of Rs. 30,000/- to the petitioner as interim compensation.
Chandrachud, C.J., made it clear that the order of the Comi was not based on
the consent of state but the right of the petitioner. The state must repair the
damage done by its officer to the petitioner's rights. 104 This right to
compensation, the court rightly observed, is some palliative for the unlawful
acts of instrumentalities which act in the name of public interest and present
for their protection the powers ofthe state as a shield105 • However, the petitioner
must come with clean hands and if he is found in falsehood before the Court
he may be disentitled from receiving any monetary compensation106 •

In SebastianM Hongray 107, two persons were taken to a military camp

for interrogation and thereafter they were not seen. The Court issued the writ

102. See, Khatri cases I and II, Id. At 930.

103. Rudal Sah v. State ofBihm; AIR 1983 SC 1086.
104. Ibid. at 1089.
105. Ibid., see Kuttikris1man, C., Right to life as a Limit on State Power: The Growth of
Human Rights Jurisprudence in India, XII Ac.L.R. 1 (1988) 1.37.
106. Dhananjay Sharma v. State ofHaryana, AIR 1995 SC 1795.
107. SebastianM Hongray v. Union ofIndia, AIR 1984 SC 571 (First Case).
 274

of habeas ~orpus to produce them before it. However, they could not be
produced. In these circumstances the court directed the Government to pay
Rs. One lac each to the wives as a measure of 'exemplary cost" 108 • it may be
noted here that there is no mention of Article 21. However, the judgment could
be understood only when we take it as compensation for violation of
fundamental right to life and personal liberty as the petition was admitted under
Article 32 and the order of compensation was made in the Habeas Corpus
petition itself.

The constitutional safeguards for protection of arrested persons are

flagrantly violated by police officiaF 09 • It is the most unhappy part of our
criminal justice system that some times, magistrates also neglect to act in
accordance with law.· Such a situation arose in Bhim Singh, v. State of J. &
K. 110 where a member of the Legislative Assembly was atTested by the police
while going to attend the session of the House. He was not produced before
any magistrate within the requisite period though remand was obtained. The
court held that it constituted a gross violation of Articles 21 and 22(2) 111 : Since
Bhim Singh was already released, the court held that he could be compensated
by awarding suitable monetary compensation by way of exemplary costs.
Following the Rudal Sah 112- and Sebastin 113 case the comt directed the state to
pay a sum ofRs. 50,000 to Bhim Singh.

Another significant question, in this respect, is whether the police officer

responsible for the act, could be made personally liable to pay compensation

108. AIR 1984 SC 1026 (Second case), see also, Charanjit Kaur v. Union of India, AIR
1994 SC 1491 where the compensation of Rs. 6 lacs was awarded for a death of
military officer in mysterious circumstances. People Union for Civil Liberties v. Union
of India, AIR 1997 SC 1203,wher compensation ofRs. One lac was awarded to the
families of each of the. deceased who were killed in fake encounters by the police.
109. State ofPunjab v. Sukhpal Singh. AIR 1990 SC 231.
110. AIR 1986 SC 494.
111. Ibid. at 499, see also, Rajasthan Kisan Sangthan v. State, AIR 1989 Rj. 10, State of
Maharashtra v. R.S. Patil, (1991) 2 SCC 373, Arvinder Singh Bagga v. State ofU.P,
AIRSC 117.
112. Rudal Sah v. State ofBihar, AIR 1983 SC 1086.
113. AIR 1984 SC 1026 (second case).
 275

to the victim. In R. S. Patil s114 case a new dimension of right to compensation

emerged. Before the present case it was the liability of the State to pay
compensation for violation of the right to personal liberty. In this wavelength
the State's liability to pay compensation extended even to the personal or illegal
act of the officer. In order to make such officer liable in R.S. Patil the question
was whether the poice officer could be made personally liable to pay
compensation to the victim. But the Supreme Court, it is submitted, missed the
opportunity of developing personal liability of the police officer and absolved
the responsibility of the police officers. But this approach fmd modification in
the Arvinder Singh Bagga115 case, where the court directed the State to take
immediate step to Mohan J., opined that upon payment by the state it will be
open to recover personally the amount of compensation from the concerned
police officers 116 • It may be pointed out that the present judgment would go a
long way in economising the liability of the State and would teach a leason to
the erring officers who would be responsible to their duties.

A complex problem of modem industrial society came up before the

court inM C. Mehta 117, where itconsidered the compensation claims of accident
victims due to escape of olium gas. It extended the right to life and personal
liberty to protect the victims of industrial hazards. Bhagwait, C.J., stated:

Where an enterprise is engaged in hazardous or inherently

dangerous activity and harms results to any one on account of
an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in escape of toxic
gas the enterprise is strictly and absolutely liable to compensate
all those who are affected by the accident118 .

Thus, once the activities cani.ed on is hazardous or inherently dangerous,

114. State ofMaharashtra v. R.S. Patil, (1991) 2 SCC 373.

115. Arvinder Singh Bagga v. State ofU.P AIR 1995 SC 117.
116. Ibid. at 119, see also, Tabassum Sultana v. State ofU.P, AIR 1997 All. 177.
117.MC. Mehta, v. Union ofindia, AIR 1987 SC 1086.
118. Ibid. at 1099.
 276

the person canying on such activity as liable to make good the loss caused to
any person by his activity inespective of the fact whether he took reasonable
care while canying on his activity 119 . Though the Court laid down the principle
ofliability it did not adjudicate on the compensation claim in the wirt petitions
and returned the matter to the civil court for disposal. Violation of the
fundamental right was not considered in the present case as an 'appropriate
case" for awarding the compensation in its writjurisdiction120 •

It is submitted that in case of industrial hazards the compensation should

be awarded in the writ jurisdiction itself. It may be pointed out that such case
could be covered within the criterion laid down by the court for determining
an 'appropriate case" 121 • The right of victim in such case does not depend
upon the fact that ·the damage was caused by the state or private individual
because even the private person may be directed to pay the compensation122 •

The expansive interpretation of Article 12 in recent years, has imposed

a positive duty upon the state to protect the individual's property which was
considered by the court in R. Gandhi v. Union of Indid 23 The compensation
was claimed for destruction of the property of the victims due to total failure
of the state of perform its mandatmy duty to protect the life and livelihood of
the citizens. The High Court upheld the compensation claims to rehabilitation
of the affected persons. In this respect a significant question arises: Is the

119. Indian Council for Enviro-LegalAction v. Union ofindia, AIR 1996 SC 1446, 1465.
120. Ibid. at 1091, however, the above principle is a good guideline for working out
compensation in the cases to which the ratio is intended to apply. See, Union Carbide
Corporatin v. Union ofIndia, AIR 1992 SC 248 at 261, 309.
121. Ibid. see also, R.L. & E. Kendra Dehrandun v. State of UP., AIR 1991 SC 2216.
122. Ibid see also R.L. & E. Kendra, Dehradun v. State of UP., AIR 1991 SC 2216, where
the court directed the lessee to pay Rs. 3 lacs under Article 32 for repairing the
damage done to ecology by his act. Bodhisattwa Gautam v. Subhra Chakraborl)~
AIR 1996 SC 922, 928. Delhi Domestic working women s Forum v. Union ofIndia,
(1995) 1 SCC 141, Vishaka v. State ofRajasthan, AIR 1997 SC 3011.
123. AIR 1989 Mad. 205, see also,M!s. Inder Puri General Store v. Union ofIndia, AIR
1992 J & K. 11 K. Sai Reddy v. Dy. Executive Engineer, J & C.A.D. Nampally, AIR
1995 A.P. 208.
 277

obligation of the State to protect the property of its citizens in absolute terms
and the need to protect the property in the light of the resources available as
also the practical problems and difficulties faced in the day-to-day
administration of the State. The expectations from the State should be in the
realm of reasonable care required to be taken by the State in giving such
protection to the property of its citizens as in normal circumstance it is required.
The concept of reasonable care, therefore, in tmn gives rise to an equally
important concept of negligence on the part of the State124 . When the State
was not negligent in its duty to protect the citizens property in communal riot,
it cannot be made liable to pay for the loss.

It is significant that the plea of sovereign immunity was never taken by

the state in the above cases. The conflict between the concept of sovereign
function and personal liberty was considered for the first time, by the Andhra
Pradesh High Comt in C. Ramkonda Reddy 1~ State 125 . Here the compensation
was claimed for the death of a prisoner in jail. The court held that there was
failure or negligence on the part of the police to guard jail properly and ensure
safety of prisoners 126 •

The comt gave primacy to Article 21 over the sovereign immunity. In

the opinion of the Comt where a citizen had been deprived of his life or liberty,
otherwise than in accordance with the procedure prescribed by law, it was no
answer to say that the said deprivation was brought about in the discharge of
the sovereign function127 • The Andhra Pradesh High Comt declined to follow
Kasturi LaP 28 in the light of the stand taken by the Supreme Court in Rudal
Sah 129, Sebastian 130 and Bhim Singh 131 case. The court directed the State to pay
Rs. 1,44,000 as the only mode for enforcing Article 21.

124. State ofJ & K v. Mls. Jeet General Store, AIR 1996 J. & K. 51.54.
125. AIR 1989 A.P. 235.
126. Ibid. at 244.
127. Ibid. At 247, per Jeevan Reddy, J.
128. Kasturilal v. State of UP, AIR 1965 SC 1039.
129. Rudal Sah v. State ofBihar, AIR 1983 SC 1086.
130. SebastianM Hangrayv. Union ofindia, AIR 1984 SC 1026.
131. Bhim Singh v. State ofJ & K AIR 1986 SC 494.
 278

The jurisprudential basis of the principle to award compensation was

laid down by the court in Nilabati Behera v. State of Orissa132, where it held
that the defence of sovereign immunity was not applicable to a claim in public
law for compensation. Verma, J., delivering the judgment for the court, opined
that the proceeding for compensation under Atticle 32 and 226 was a public
law remedy to which sovereign immunity did not apply. Even though it could
be available as a defence in private law in an action based on tort133 . Thus, the
compensation to the victims whose rights have been violated would depend
upon the nature of proceeding one chooses to pursue. It is submitted that the
above decision did not clarify the position when the claim of compensation
was raised in appeal cases and the extent of sovereign immunity to prevent the
victims from compensation in a private law suit. Therefore, in order to prevent
an exodus of litigations availing writ jurisdiction in the place of a civil suit, the
very defence of sovereign immunity should be scrapped134 . The same principle
of compensation should be applicable to public law and private law remedies.
In that case, the sovereign immunity defence is reduced to non fundamental
rights issues irrespective of the nature of proceedings 135 •

When the victim is entitled for compensation he should be provided

relief by the court. In SAHELP 36 , the court held that the mother of the child
was entitled to get compensation for the death of her son, who died as a result
of injury caused by the police officers, from Delhi Administration. Ray, J.,
observed that Naresh was done to death due to the beating and assault by the
agency of the sovereign power acting in violation and excess of the power
vested in such agency 137 • The court made it clear that, "It is well settled now

132. AIR 1993 SC 1960, see also Qumar Sultana v. Commr., Municiapl Corpn. Of
Hyderabad. AIR 1995 A.P. 203.
133. Ibid. at 1969.
134. See, Dwivedi, B.P., From Sah to SAHEL!: A New Dimension to Government Liabilif)~
36 .HLI (1994) 99, 108.
135. See. Singh, Mahendra P., Constitutional Liability of the State: Erosion ofSovereign
Immunity 15 The lawyes, May 1994, 17.
136. SAHEL! a Women sResources Centre v. Commr. OfPolice, Delhi, AIR 1990 SC 513.
137. Ibid. at516.
 279

that the State is responsible for the tortuous acts of its employees". Following
Vidyawati 138 , the court rejected the defence of soverign immunity and directed
the state to pay Rs. 75000 to the mother of the deceased child139 • The most
remarkable point in SAHEL! was that it did not make any distinction between
the cases of violation of fundamental rights and other legal rights.

Following the above viewinHazurSingh v. Behari La!l 40 , B. R. Arora,

J., explained the present position of the sovereign immunity as follows:

State cannot claim any immunity from payment of damages

for the illegal and wrongful action of its officers on the so
called doctrine of sovereign immunity. Time has come to give
a good bye to the doctrine of sovereign immunity and to sweep
of this archaic rule, which has become out moded in the
concept of modem development141 .

The compensation is awarded, generally, on the ba:sis of the entitlement

of the claimant at the law. The modem concept of justice is more concerned
with providing relief to the victims than the niceties of legal ptinciples 142 . For
this purpose, the court may also take into consideration the economic condition
of parties while determining the quantum of compensation143 • Some recent
decisions are a pointer where the court awarded compensation to the victims
inespective of justification of their claim. In People Union for Democratic
Rights v. State ofBihar144, the police opened fire at a peaceful meeting without
any warning or provocation as a result of which 21 persons died and several
persons suffered injuries. The court directed the State to pay compensation of

138. State ofRajasthan v. V1dyawati, AIR 1962 SC 933.

139. SAHELI'S case, AIR 1990 SC 513 see also, People Union for Democratic Rights v.
Police Commissione1; Delhi Police, (1989) 4 SCC 730, P. V Kapor v. Delhi Admn.
1992 Cr. L.J. 128 (Delhi).
140. AIR 1993 Raj. 51.
141. Ibid. at 59. see also, N Nagendra Rao, & Co. v. State ofA.P. AIR 1994 SC 2663.
142. See, Union Carbide Corporation v. Union ofIndia, AIR 1990 SC 273.
143. See, MC. Mehta, v. Union ofIndia, AIR 1987 SC 1086.
144. AIR 1987 SC 355.
 280

Rs 20,000 for each case of death without prejudice to any just claim of
compesation145 • Though this observation is comparable with Rudal Sah where
the court said that the order (or compensation) will not preclude the petitioner
from bringing a suit to recover appropriate damages from the State and its
ening officials 146 , the difference is that in Rudal Sah the court decided the
compensation claims, while in the latter case it did not decide the claims and
returned the matter to the High Court.

Jwala Devi v. Bhoop Singh 141, is another decision falling in the above
category. It was alleged by an old woman that she was assaulted, tortured and
paraded in the street after rubbing black shoe polish on her face by police
officials. These allegations could not be proved before the comt and the claim
for compensation was rejected. But the court directed the Sate to pay Rs. 5,000/
= to the petitioner148 . A similar order was passed by the court in a medical
mishap case 149, where the eyes of the patient were irreversibly damaged after
operation by a team of doctors. As to the question of appropriate compensation
to the victims in this case, Ranganath Misra, J. (as he then was), observed that,
I
'on humanitarian consideration the victims should be afforded some monetary
relief by the State Government' 150 . The court directed the State to pay Rs.
12,500/= to each of the victims. It may be pointed out here that in all the above
mentioned cases Justice Misra was a member of the Bench151 • It is indeed a
remarkable development for which the credit goes to justice Misra, Indeed,
we suggested that the Supreme Court a the guardian of civil liberties should
make use of this new technique more frequently in compensating such victims.

145. Ibid. at366.

146. Ibid. MC. Mehta s case, at 1089.
147. AIR at 1443.
148. Ibid. at 1443.
149. A.S.Mittalv. StateofUP. AIR 1998 SC 1570.
150. Ibid at 1577 (emphasis added) such order is justified under Article 142. See, Dwivedi,
B.P.,FromSah to SAHEL!: ANew Dimension to GovernmentLiability,36 JILl (1994)
99,108, see also, Jain S.N.Money Compensation for Administrative Wrongs through
Article 32, 25 JILl (1983) at 118.
151. See case mentioned above.
 281

Subsequently, a new development took place in Indian liberty

jurisprudence by including the right to medical assistance, petfect and competent
medical aid and timely treatment to a person in government owned and managed
hospital or government sponsored scheme, into life and liberty under Article
21. The question arises in this respect is, whether the failure on the part of a
government hospital, doctors and staffs employed there in, to provide such
service may amount to violation of Article21 and the State may be held liable
to pay compensation for medical negligence? The court answered this question
in affirmative and directed the State to compensate the victims in such cases 152 .
In order to develop the accountability of the doctors and staff, it is submitted,
that the State should be entitled to recover the said amount from the negligent
employees.

To sum up the aforesaid principle, it is pertinent to quote the words of

Dr. A. S. Anand, J.:

· 'monetary or pecuniary compensation is an appropriate and

indeed an effective and sometimes perhaps the only suitable
remedy for redressal of the established infringement of the
fun.damental right to life of a citizen by the public servants
and the State vicariously liable for their acts. The claim of the
citizen is based on the principle of strict liability to which the
defence of sovereign immunity is not available and the citizen
must receive the amount of compensation from the State,
which shall have the right to be indemnified by the
wrongdoer. 153

152 Jasbir Kaur v. State of Punjab, AIR 1995 P&H 278, (the court awarded the
compensation of Rs. One lac when a newly born child was taken away by a cat in
government owned and managed hospital) P.B. Khet Majdoor Samity v. Sate ofW.B.,
AIR 1996 SC 2426 (a compensatin ofRs. 25,000/= was awarded for the failure of the
government hospital to provide timely medical treatment), Tabassum Sultana v. State
of UP. AIR 1997 All. 177 (the compensation ofRs. There lacs was awarded for the
loss of motherhood of young lady after the operation for tubectomy under the
government sponsored scheme).
153 D.K Basu v. State ofW.B., AIR 1997 SC 610, 628.
 282

Thus, the comts have evolved a general principle of Governmental

liability. It does not make any distinction between a fundamental right or other
legal right. It is also universal in its application covering writ jurisdiction as
well as a civil suit. Officials of the Government act, for and on behalf of the
state. Thus, the state is rightly made liable for their acts and defaults. The
solution lies with the enactment of comprehensive legislation154 or judicial
innovation completely discarding the sovereign immunity. The Court has
initiated the emergence of a fundamental right to compensation.

The judiciary has thus, been rendering judgments which are in tune and
temper with the legislative intent while keeping pace with time and jealously
protecting and developing the dimensions of the fundamental human rights of
the citizens so as to make them meaningful and realistic. New contents are
being provided to criminal justice also resulting in prison reforms and
humanitarian treatment of the prisoners and the under trials. The doctrine of
equality has been employed to provide equal pay for equal work. Ecology,
public health and environment are receiving attention of the courts. Exploitation
of children, women and labour is receiving the concern it deserves. The
executive is being made inore and more to realize its responsibilities.

V. Recent Judgments Regarding Article 12

In course of time, the Supreme Court has been expanding the hmizon
of the term "other authority" in Article 12. A large number of bodies statutory
and non-statutory, have been held to be 'authorities' for purposes of Article
12. Even if the entire share capital of a company is subscribed by the
government, it cannot yet be treated as a government department. The company
154. See, Singh, Mahendra P, Constutiional Liability of the State: Erosion of Sovereign
Imunity 15 The Lawyers, May 1994, see also, Chauhan, v. S., Sovereign Immunity
Versus Fundamental Rights: Gray Area of Tension in the Constitutional Law of India,
AIR 1992 (Jour). 129, at 135 where the learned author pleads for legislation to cure
the anomaly. On the other hand. Alice Jacob takes the view that the cure lies in the
hands of the judiciary and not the legislature, see, Jacob, Alice, Vicarious Liability of
Government in Torts, 7 JILl (1965) at 251.
 283

has its own corporate personality distinct from the government. Such a
government company can still be treated as an authority under Article 12 155 .
Government Companies, such as Bharat Earth Movers Ltd., Indian Talephone
Industries Ltd., in which the Government holds 51% share capital, and which
are subject to pervasive govemment control, have been held to be "other
authorities" under Article 12 156 .

(i) Co-operative Society

In UP. State Coop~ Land Development Bank Ltd 1~ Chandra Bhan
157
Dubey , the court held that, U.P. State Co-operative Land Development Bank
Ltd. was a cooperative society but it was under pervasive control of the State
Government and was an extended arm of the Government. It was thus an
instrumentality of the State.
The comts have been led to take such an expansive view of Article 12
because of the feeling that if instrumentalities of the government are not
subjected to the same legal discipline as the government itself because of the
plea that they were distinct and autonomous legal entities, then the government
would be tempted to adopt the stratagem of setting up such administrative
structures on a big scale in order to evade the discipline and constraints of the
Fundamental Rights thus eroding and negating their efficacy to a vety large
extent. In this process, judicial control over these bodies would be very much
weakened 158 •

(ii) Company
I was held by the Court in Biman Kishore Bose v United India Insurance
Co. Ltd 159, that a company enjoying the monopoly of carrying on a business

155. Hindustan Steel Works Construction Ltd. v. State ofKerala, AIR 1997 SC 2275; Steel
Authority of India Ltd. v. Shri Ambica Mills Ltd., Air 1998 SC 418; Balbir Kaur v.
Steel Authority ofIndia, AIR 2000 SC 1596.
156. M Kumar v. Earth Movers Ltd., AIR 1999 Kant 343.
157. AIR 1999 SC 75 3.
158. Steel Authority of India Ltd. v. National Union Water Front Workers, AIR 2001 SC
3427.
159. (2001) 6 sec 477 ..
 284

under an Act of Legislature has the "trappings" of"State" and is an "authority"

under Article 12.
Once a body is characterized as an "authority'' under Article 12, several
significant incidents invariably follow, viz. :

( 1) The body becomes subject to the discipline of the Fundamental Rights

which means that its actions and decisions can be challenged with
reference to the Fundamental Rights.

(2) The body also becomes subject to the discipline of Administrative

Law.

(3) The body becomes subject to the writ jurisdiction of the Supreme Court
under Atticle 32 and that of the High Court under Article 226.

(iii) Government Company

Mysore Paper Mills, a government company, has been held to be an
instrumentality of the State Government and, hence, an authority under Article
12 160 . More than 97% of the share capital of the company has been contributed
by the State Government and the financial institutions of the Central
Government. Out of 12 directors, 5 were government nominees and the rest
are approved by the Government. The company has been entrusted with
important public duties and the Government exercises various other forms of
supervision over the company. The company is an instrumentality of the
Government and its physical form of a company "is merely a clock or cover
for the Government".
Not only a body sponsored or created by the government may be treated
as an "authority", but even a private body may be so treated i f - (i) it is
supported by extraordinary assistance given by the State, Or (ii) if the State
funding is not very large, state fmancial suppmt coupled with an unusual degree
of control over its management and policies may lead to the same result.

160. Mysore Paper Mills Ltd. v. The Mysore Paper Mills Officer' Association, AIR 2002
sc 609.
 285

(iv) Nationalised Bank

In CanaraBankv. MD. Chikkaswamy161 , it was held by the Court that,
Nationalised Bank was an instrumentality of the State and therefore it was a
State within the meaning of Article 12. Nationalised Banks have larger
obligations meant for the good of the people and the society. Therefore, subject
to bona fide errors that may crept in, when the Nationalised Bank makes a
claim for recovery of the amount, it has an obligation to be fairly accurate
with regard to its .claim both regarding the principal amount claimed and also
the rate of interest.

(v) Council of Scientific and Industrial Research

The expansive interpretation of the expression "other authorities" in
Article 12 is furnished by the recent decision of the Supreme Court in Pradeep
Kumar Biswas v. Indian Institute of Chemical Biology162 • In this case, the
Supreme Court has overruled Sabhajit Tewary 163 and has held that the Council
of Scientific and Industrial Research (CSIR) is an authority under Article 12
and was bound by Article 14. The court has ruled that "the control of the
Government in CSIR is ubiquitous". The court laid down the following
proposition for identification of 'authorities" within Article 12:

The question in each case would be-whether in the light of

the cumulative facts as established, the body is fmancially,
functionally and ~administratively dominated by or under the
control of the goyernment. Such control must be particular to
I
the body in ques tion and must be pervasive. If this is found
1

I
then the body is a state within Article 12. On the other hand,
. I
when the control is merely regulatory whether under statute
or otherwise, it fould not serve to make the body a state 164 .

161. AIR 2002 Kar 100.

162. c2oo2) 5 sec 111.
163. AIR 1975 SC 1329.
164. (2002) 5 sec at 134.
 286

When the law provides for a general control over a business in terms of
a statute and not in respect of the body in question, it would not be a 'State' 165

Pradeep Kumar Biswas 166 and Bassi Reddy161 were recently considered
in Gayatri De v. Mousumi Co-operative Housing Sosiety Ltd. and others 168 ,
wherein a mandamus was issued against a Co-operative Society on the ground
that the order impugned therein was issued by an "administrator" appointed
by the High Court who had also no statutory role to perform.

(vi) Religious Board

In Chain Singh v. Mata Vaishno Devi Shrine Board1 69 • It was contended

that a religious board was a 'State'. Although Mata Vishno Devi Shrine Board
was constituted under a statute, it was per se not a State actor. It was observed
that the decisions of this Court in Bhuri Nath and Others v. State of J. & K.
and others 170 , requires reconsidaration in the light of the principles laid down
in Pradeep Kumar Biswas 111 .

In Virendra Kumar Srivastava v. UP.Rajya Karmachari Kal. Nigam

and other172, a division Bench of this Court while applying the tests laid down
in Pradeep Kumar Biswas 113 observed that there exists a distinction between a
'State' based on its being a statutory body and a one based on the principles
propounded in the case of Ajay Hasia & Ors, v. Khalid Mujib 114 .

All autonomous bodies having some nexus with the Government by

165. See Federal Bank Ltd. v. Sagar Thomas, AIR2003 SC4325: KR. Anithaandothersv.
Regional Director ESICorporation, AIR2003 SC 3393; G. Bassi Reddyv. International
Crops Research Institute, AIR 2003 SC 1764.
166. (2002) 5 sec 111.
167. AIR2003 SC 1764.
168. AIR 2004 SC 2271.
169. 2oo4 AIR sew 5402.
170. AIR 1997 SC 1711.
111. (2002) 5 sec 111.
172. AIR 2005 SC 411.
173. (2002) s sec 111.
174. AIR 1981 SC 487.
 287

itself would not bring them within the sweep of the expression 'State' Each
case must be determined on its own merits.

Having regard to the modem conditions when Government is entering

into business like private sector and also undertaking public utility services,
many of its actions may be a State action even if some of them may be non-
governmental in the strict sence of the general rule. Although tule is that a
writ cannot be issued against a private body but thereto the following exceptions
have been introduced by judicial gloss: (a) Where the institution is governed
by a statute which imposes legal duties upon it; (b) Where the institution is
'State' within the meaning of Art 12, (c) Where even though the institution is
not 'State' within the preview of Art. 12, it perfmms some public function,
whether statutory or otherwise 175 .

(vii) Board of Control for Cricket in India

In Zee Telejilms Ltd. v. Union of India, 176 a five-judges bench of the

Supreme Court examined the question whether BCCI came within the meaning
of 'State' under article 12.

The court noted that the scope of article 12 had been subjected to
expansion as a consequence of a cettain socio-economic miliew. 177 However ,
as was pointed out in Balco Employees' Union (regd) v. Union ofIndia, 178 the
socio-economic policy of the government had changed, and presently it lays
emphasis on governance more than business and commercial activities
Consequently, the court felt that no further need existed to expand the scope
of article 12 and further. 179

It was contended before the court the BCCI should be treated as 'State'
because it controlled and reguleted cricketer's right guaranteed under article

175. Zee Te.film Ltd. v. Union ofIndia, AIR 2005 SC 2677 at 2680.
176. (2005) 4 sec 649
177.Jdat683.
178. (2002) 2 sec 333.
179. (2005) 4 sec 649, 684.
 288

19 (1) (g). Rejecting the contention outright; the court held that this right
could be claimed only against the state. Atticle 19(1)(g) applied only when it
was established that the regulating authority in question fell within the scope
of' state' under article 12. 180

Thus, to argue that evety entity, which validly or invalidly anogates to

itself to regulate or for that matter even starts regulating the fundamental rights
of the citizen under Article 19(1)(g), is a State within the meaning of Atticle
12, is to put the cart before the horse. 181

In Zoroastrian Cooperative Housing Society Ltd. v. District Registrar

Cooperative Societies (urban), 182 the question was whether cooperative
societies fall within the meaning of 'State' in Article 12. The court, speaking
through Balasubramanyan J pointed out that a cooperative society cannot be
cop.sidered 'State' unless the tests laid down inAjay Hasia v. KhalidMujib 183
were satisfied. Since no case had been made out that the society in question
satisfied these tests, the comt was compelled to hold that it was not 'State'
within the meaning of Article 12. 184 •

(viii) Local or Statutory Authority

In Srikant 1~ Vasantrao 185, The court has consistently refused to apply

the enlarged definition of 'State' given in Part III (and Part IV) of the
Constitution, for interpreting the words 'State' or 'State Government. While
the term 'State' may include a State Government as also statutory or other
authorities for the purposes ofpatt- III (or Patt-IV) of the Constitution, the
term 'State Government' in its ordinruy sense does not encompass in its fold
either a local or statutory authority. Therefore, though Godawrui Marathwada
liTigation Development Corporation and Maharashtra J eevan Pradhikru·an may

180. Id. at 680.

181. Id. at 680-88
182. (2005) 5 sec 632.
183. AIR 1981 SC 487.
184. (2005) 5 sec 632, 659.
185. AIR 2006 SC 918.
 289

fall within the scope of 'State' for purpose of Part-III of the Constitution, they
are not 'State Government' for the purposes of section 9-A of the Act.

(ix) Private Dispute

In Ram Chandra Prasad v. Food Corporation of Jndial 86 , it was
submitted by the petitioner who was the learned advocate of this Court,
appearing in person, that despite rendering of professional service to the Food
Corporation of India as empanelled advocate of the said Corporation all the
bills as submitted has not been fully paid. The petitioner filed a supplementary
affidavit giving the details of the bills and the amount as still payable. It has
been further contended by the petitioner that the taxi fare though was agreed
upon to be paid has not been paid. It was also another case of the petitioner
that since he was engaged to deal with the taxation matters his fees cannot be
equated with the shipping matter. In a nutshell the entire writ application was
based on the factual matrix that the petitioner has not been paid proper fees
with reference to the duty as discharged by him. In this case the Food
Corporation of India even if an authority under Article 12 of the Constitution
of India,, but the engagement of a lawyer by such authorities is within the
commercial transaction and contractual domain of the Corporation. The
engagement of a lawyer and payment of fees since within the field of contractual
matter and when the claim of the petitioner has been disputed, the Court was
of the view that the matter does not involve for any adjudication having public
element thereof. It was simply a private dispute between one learned advocated
and his client about non-payment of fees and the Court was of the view that it
was absolutely on the private domain for which writ was not maintainable.

(x) Independent Body

In Lt. Governor of Delhi v. V. K. Sodhi, 187 the Court held that State
Council of Education, Research and Training (SCERT) is not State or other
authority within meaning of Art. 12. The two elements, one, of a function of
the State, namely, the co-ordinating of education and the other, of the Council
186. AIR2007 Cal169.
187. AIR 2007 SC 2885.
 290

(SCERT) being dependant on the funding by the State, satisfied two of the
tests indicated to constitute 'State'.· But, from that alone it could not be assumed
that SCERT is a State. It has to be noted that though fmance is made available
by the State, in the matter of administration of that finance, the Council is
supreme. The administration is also completely with the council. There is no
govermental interference or control either financially, functionally or
adminitratively, in the working of the Council. SCERT, in addition to the
operational autonomy of the executive Committee, it could also amend its
bye-laws subject to the provisions of the Delhi Societies Registration Act
though with the previous concurrence of the Government of Delhi. The
proceedings of the Council are to be made available by the Secretruy for
inspection of the Registrar of Societies as per the provisions of the Societies
Registration Act. The records and proceedings of the Council have also ~o be
made available for inspection by the Registrar of Societies. In the case of
dossolution of SCERT the liabilities and assets are to be taken over at book
value by the Govt. of Delhi which had to appoint a liquidator for completing
the dissolution of the Body. The creditors loans and other liabilities ofSCERT
shall have preference and bear a first charge on the assets of the Council at the
time of dissolution. This is not an unconditional vesting of the assets on
disolution with the Government. It is also provided that the provisions of the
Societies Registration Act, 1860 had to be complied with in the matter of
filing list of office-bearers every year with the Registrar and the canying out
of the amendments in accordance with the procedure laid down in the Act of
1860 and the disolution being in terms of Ss. 13 and 14 of the Societies
Registration Act, 1860 and making all the provisions of the Societies
Registration Act applicable to the Society. These provisions, indicate that
SCERT is subservient to the provisions of the Societies Registration Act rather
than to the State Goernment and that the intention was to keep SCERT as an
independent body188 .

188. Ibid.
 291

(xi) Statutory Body

In Punjab Water Supply and Swerage Board 1~ Ranjodh Singh 189, the
Court held that statutory body was a 'State' within the meaning of Article 12.
The State may have some control with regard to recruitment of employees of
local authorities, but such control must be exercised by the State strictly in
terms of the provisions of the Act. The statutory bodies are bound to apply the
rules of recruitment laid down under statutory rules. They being 'States' within
the meaning of Atticle 12 of the Constitution of India are bound to implement
the constitutional scheme of equality. Neither the statutory bodies can refuse
to fulfill such constitutional duty, nor the State can issue any direction contrary
to or inconsistent with the constitutional principles adumbrated under Article
14 and 16 the Constitution of India.

189. AIR2007 SC 1082.