Friday, 22 July 2016

Can a writ petition be filed against a private company?

 Article 32: Remedies for enforcement of rights(Right of Constitutional Remedy)

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution Remedies for enforcement of rights conferred by this Part

226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeascorpus, mandamus, prohibitions, quowarranto and certiorari , or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32
A writ is  a  "form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way".

Writ of Habeas Corpus:

Protection of Individual’s liberty when detained illegally and wrongfully
Filed before court by any individual or organization not necessarily the aggrieved party
Against state as well as individual
Physically producing in court incase the detention is questioned
The court may not insist on physical production in court incase the if all the material facts relating to detention are made available
If detention is found to be illegal or unlawful, the ccourt may direct release
Writ of Mandamus
Filed on the violation of a legal right only by the aggrieved party
Private rights cannot be enforced-cannot be issued against an individual or a private person
Issued only against a public authority or a person  holding office
Means to command ,i.e. , a command to do or not to do something in nature of public duty
Cannot be issued against President or Governors
Writ of Prohibition
Filed by an aggrieved individual against a judicial or quasi judicial body (a lower court or a tribunal) when it is acting in excess or absence of its jurisdiction

Writ of Certiorari
Similar to Writ of Prohibition except it is filed in the case wherein the judgement has been delivered
 Thus the purpose of the writ is to quash or nullify the judgement/direction/order issued by such a judicial/quasi-judicial body. 

Writ of Quo Warranto
Filed by any person to ensure that a public office is not held by  a person   who is not qualified to hold the office

A brief reading of Articles 32 and 226 of the constitution clearly explains that a writ can be issued "to any person or authority" and "for enforcement of any of the rights conferred by Part III and for any other purpose." The scope is sure very wide and can be interpreted in various  ways.

The Supreme Court through its judgements has tried to clarify its stance on whether a  writ petition can be filed against a private company.

S.D. Siddiqui vs University Of Delhi And Ors. is a landmark in this regard .In this it was held that while ordinarily a writ is filed only against the state or the instrumentality of the state as it was held in previous judgements of   Tekraj Vasandhi v. Union of India, General Manager,  Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad  ,Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors .

The court reiterated its stance as was in the case of Binny Ltd. v. Sadasivan where the Supreme Court observed that a writ will lie against a private body only when it performed a public function or discharged a public duty. This public function or duty was explained by the court in the S.D Siddiqui case –“A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it

We can say that a writ petition is only maintainable against the state or its organs ,or a person holding public office discharging his duties in capacity of that office, ordinarily. Writ petitions are filed essentially for the violation of a fundamental right as mentioned in Part III of the Constitution of India.

It can thus be summarized that a writ against a company is not maintainable except where the company is discharging a public function.

1 comment:

  1. I am an ordinary citizen of India and yet there are at least three stay orders in respect of targeted writ petitions specifically filed on behalf of Govt run insurance companies or their association.