Public Duty & Public Law Rights: A study in the light of recent decisions under Article 226 of Constitution of India.

Transcription

1 Public Duty & Public Law Rights: A study in the light of recent decisions under Article 226 of Constitution of India. By P.Chandrasekhar, Advocate, Ernakulam. Is Article 226 of the Constitution of India available to enforce private law rights? Administrative law in India has been shaped in the English mould. Power to issue writ or any order or direction for any other purpose has been held to be included in Article 226 with a view apparently to place all the high courts in this country in some what the same position as the court of the King s Bench in England (1). Private law is that part of a legal system which is part of the common law that involves relationships between individuals such as the law of contract or torts. It is to be distinguished from public law which deals with relationships between individuals, business entities and non-profit organizations with the state including regulatory statutes, penal law and other law that effects the public order. English law reckons ordinary private law remedies such as damages, injunction and declaration and public law remedies in the form of certioari and mandamus, collectively known as the prerogative remedies.. Claims to remedies in tort are based on the infringement of private law rights and are in principle ineligible for judicial review, even though brought against public authorities (2). Contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. House of Lords dismissed the application for certiorari of an employee of British Broadcasting Corporation to quash her dismissal since the ordinary contractual obligations of master and servant had never been within the scope of the prerogative remedies (3). In R.v. Lord Chancellor s Department Exp.Nangle(4) application of a civil servant for quashing disciplinary action was dismissed since his proper course was to sue for breach of contract. In R. East Berkshire Health Authority Exp. Walsh (5) the Appeal Court dismissed application of a male nurse against a health authority to quash the decision dismissing him from service. It was held that whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee s position and not on the fact of employment by a public authority per se or the employe s seniority or the interest of the public in the functioning of the authority. In Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (6) the House of Lords was concerned with decision of the Kensington and (1) ; AIR 1953 SC 210 (2) ; Administrative Law; 8 th Edition; H.W.R.Wade & C.F.Forsyth, page 656 (3) ; R v. British Broadcasting Corporation ex.p.lavelle (1983 (1) WLR 23) (4) ; (1992) 1 All. E. R. 897 (5) ; 1985 QB 152 (6) ; [1992] 1 All ER 705

2 Chelsea and Westminster Family Practitioner Committee reducing the basic practice allowance of Dr. Premananda Roy, a medical practitioner. The House of Lords held that Dr. Roy had no right to be paid a basic practice allowance until the committee had carried out their public duty to decide as to whether or not to include Dr. Roy's name on the medical list. The public law decision of the F.P.C. to include Dr. Roy's name on the medical list brought into existence private law rights and duties. True demarcation line between public and private law involves focusing on whether the decision-making body took the decision challenged in the course of its public functions. It is the nature of the function which is being performed which is allimportant.. In R v Panel on Take-overs and Mergers ex parte Datafin (7) Sir John Donaldson MR said that the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction. In The Queen on the application of Hopley v Liverpool Health Authority & Others (unreported)(30 July 2002) Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are i) Whether the defendant was a public body exercising statutory powers ii) Whether the function being performed in the exercise of those powers was a public or a private one; and iii) Whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. In Queen on the Application of Tucker v. Director General of the National Crime Squad (8). Lord Justice Scot Baker of Court of Appeal dismissed the application of a Detective Inspector in the Derbyshire Constabulary for certiorari to quash the decision terminating his services stating that the decision impugned in the case did not have sufficient element of public law to be subjected to judicial review and that it was of purely domestic nature. A body performing public duty is, of course, amenable to writ jurisdiction but all decisions of that body are not subject to judicially review. Only decisions which has public element in it are judicially reviewable under writ jurisdiction. Early decisions of the Supreme Court took notice of the fact that the makers of Indian Constitution provided and conferred on the High Court powers to issue directions, orders or writs primarily to enforce fundamental rights and for any other purpose was included with a view to place all the high courts in this country in some what the same position as the Court of King s Bench in England (9). The Court could make an order or issue a writ in all appropriate cases and in appropriate (7); [1987] 2 WLR 699 (8) ; R v. British Broadcasting Corporation ex.p.lavelle (1983 (1) WLR 23) (9) : AIR 1953 SC 210

3 manner so long as it keeps to the broad and fundamental principles regulating the exercise of jurisdiction in the matter of granting such writs in English law (10). In Lekhraj v. Dy. Custodian, Bombay (11), the Supreme Court said that the chief function of the writ is to compel the performance of public duties and writ of mandamus is issued only in a case where there is a statutory duty conferred on the officer concerned. In Banchhanidhi Rath v. The State of Orissa (12) it was held that if a right is claimed in terms of a contract such a right cannot be enforced in a writ petition. In Radhakrishna Agarwal v. State of Bihar (13), the Supreme Court did not consider the proposition that every case of a breach of contract by the State or its agents or its officers would call for interference under Article 226 to be a sound one. In Rohtas Industries Ltd v. Rohtas Industries Staff Union (14), the Supreme Court held that the jurisprudence of judicial review in this branch is substantially common for Indian and Anglo-American systems. In L.I.C. v. Escorts Ltd (15) the Supreme Court said that actions of the State or instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. In a revolutionary departure from its earlier traditional view the Supreme Court in Andi Mukta S.M.V.S.S.J.M.S. Trust v. V.R.Rudani (15a), held that the words any other authority mentioned in Article 226 are not to be confined to statutory authorities and instrumentalities of the State and that they cover any other person or body performing public duty. It was also held that mandamus could not be denied on the ground that the duty to be enforced is not imposed by the statute. The Court however emphasized that if the rights are purely of a private character no mandamus (10); AIR 1954 SC 440 (11); AIR 1966 SC 334 (12); A.I.R S.C. 718 (13); AIR 1977 SC 1496 (14); AIR 1976 SC 425 (15); (1986) 1 SCC 264 (15a);(1989) 2 SCC 691

4 could issue. Andi Mukta s case was followed by the Supreme Court in K.Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering (15b), wherein it was held that private unaided educational institutions cater to educational need of the community and therefore there is a public element. In VST Industries v. VST Industries Workers Union (15c), the Supreme Court held that manufacture and sale of cigarettes did not involve any public function and that in what could be considered a part of the service conditions of service of a workman no breach of public duty is involved. In Air India Statutory Corporation v. United Labour Union (16), the Supreme Court held that for a public law remedy enforceable under Article 226 of the Constitution, the action of the authority should fall in the realm of public law. In Steel Authority of India Ltd. v. National Union of Waterfront Workers(17) a constitution bench of the Supreme Court, observed that the divide between the public law and private law is material in regard to the remedies which could be availed of when enforcing the rights, public or private. In U.P. State Cooperative Land Development Bank Ltd v. Chandra Bhan Dubey (18), the Supreme Court said that by various decisions the Supreme Court has held with varying and divergent view that jurisdiction under Article 226 could be invoked only when a body or authority, the decision of which was complained of, was exercising its power in discharge of public duty and that writ is a public law remedy. Federal Bank v. Sagar Thomas (19) arose from a petition of a Branch Manager of a private Scheduled Bank challenging the decision of his employer dismissing him from service. High Court held that Federal Bank Ltd is performing public duty and as such it came under the definition of other authority within the meaning of Article 12 of the Constitution of India. Supreme Court set aside the judgment of the High Court and held that private bank like Federal Bank did not discharge public duty and the statutory control by Reserve Bank of India do not confer any such status upon the bank. This legal position has been reiterated by the Supreme Court (15b); (1997) 3 SCC 571 (15c); (2001) 1 SCC 298 (16); (1997) 9 SCC 377 (17); (2001) 7 SCC page 1 at page 23. (18); (1999) 1 SCC 741 (19); 2003(3) KLT 876(SC)

5 An overall survey of English and Indian decisions would show that there is no remarkable difference between the law as it applied in England and the law applied in India with regard to availability public law remedy in the form of prerogative writs. Except in the case of a State within the meaning of Article 12 of Constitution of India and where infringement of any right guaranteed under Part III of the Constitution is complained of, the twin test of the public duty discharged by the authority and presence of public law right which is sought to be enforced is necessary to invoke writ jurisdiction. There appears to be, however, some confusion with regard to meaning and content of the word authority used in Article 12 and the same word used in Article 226 of the Constitution of India. An authority which is amenable to writ jurisdiction under Article 226 need not be an authority within the meaning of that word used in Article 12. Article 12 identifies an authority as State for the purpose of Part III of Constitution of India. Part III contains the fundamental rights. A State within the meaning of Article 12 is amenable to writ jurisdiction under Article 32 and Article 226 of Constitution of India when infringement of fundamental right is involved. Violation of constitutional right injects necessary public element to a decision or action giving rise to public law remedy. Breach of contract on the part of State, therefore, is subject to writ jurisdiction when it involves violation of fundamental right guaranteed under the Constitution of India. State, under Article 12, has no relevant except when fundamental right is sought to be enforced. When rights other than fundamental rights are sought to be enforced it is not necessary to see whether the authority against whom the writ is asked for is an authority within the meaning of Article 12. While every authority discharging a public function is not a State within the meaning of Article 12, Article 226 which has been couched in a very wide terms, takes in its ambit every authority discharging a public duty. The High Court while rendering Federal Bank s case appears to have lost sight of this distinction. As a result the High Court, in that case went on to hold that Federal Bank is discharging a public duty and therefore is a State within the meaning of Article 12. Two recent decisions are glaring example for the error into which High Courts are likely to be betrayed in the absence of well laid down criteria for determining public duty and public law right. In Suter Paul v. Sobhana English Medium High School (21) the Division Bench has held that having considered the pervasive control (20) ; ( 2003) 8 SCC 639 (21) ; 2003(3) KLT 1019

6 of the educational authorities over the recognized unaided school, we have no hesitation to hold that such institutions are amenable to the jurisdiction of the High their functioning? The relationship between the teachers of private schools and their employers, namely, the educational institutions in which they work, is contractual in nature. There was no statutory under pinning in the employment giving rise to any public law right. It is one thing to say that an unaided private educational institution, while imparting education, which is essentially a governmental function, is discharging public duty, and it is altogether another thing to say that teachers of an aided private educational institution by virtue of their employment has a public law right created in their favour. The service conditions of teachers and non teaching staff of recognized unaided schools in Kerala are covered by Chapter XIV AA of Kerala Education Rules. No public duty element can be found in the decision of a private school towards a teacher or a non-teaching staff of an unaided private recognized school arises unless any of the provisions of Chapter XIV AA of Kerala Education Rules is violated by the school. Though an unaided private recognized school, imparting education, is discharging public duty as held by the Division Bench in Annamma v. State of Kerala (22), writ to enforce contractual right arising from a contract of personal service is not maintainable. Yet another decision in which the court failed to consider the distinction between the public duty and public law right is Jose Kuttiyani v. Kerala High Court Advocates Association(23). The Association is an unregistered collective body of Advocates practicing in High Court of Kerala. The relation between the Association and its members is contractual and not statutory. The writ petition filed by Shri Kuttyani, was in challenge of a decision of the Association suspending him from the primary membership of the Association. The decision did not involve any public element. By suspending Shri Kuttyani, the Association did not violate any statutory provision and the writ was not filed alleging infringement of any statutory duty on the part of the Association. The fact that an Advocate had to be a member of an Advocate s Association to become member of Advocates Welfare Fund and that the Association has a statutory role in forwarding the application of an Advocate for membership in the Advocates Welfare Fund did not inject any public law element into the decision of the Association to suspend Shri Kuttyani. In short, the Court, in Kuttyani s case, was enforcing a private law right of Shri Kuttyani by issuing a writ, which is a public law remedy. It is submitted that it is time for closer scrutiny into the nature and content of public duty and public law rights, which are necessary ingredients for invoking writ jurisdiction under Article 226 of Constitution of India and to lay down definite criteria, at least broadly, for future guidance. Had the Supreme Court held in no uncertain terms that the difference between public law rights and private law (22) ; 1994 (1) KLT 309 (23) ; 2004(1) KLT 35.

7 rights is not relevant in deciding whether decision of a person or authority is amenable to writ jurisdiction under Article 226 of Constitution of India, it would not have been necessary for High Courts to labour on the question of existence of public law element in a decision under challenge. But till such time, the necessity to demarcate the dividing line between public law right and private law right needs no emphasis. P.Chandrasekhar