Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an appeal filed challenging the judgment passed by the Single Judge whereby the writ petition of the Appellant was dismissed on the ground that it was not maintainable as Gems & Jewellery Export Promotion Council (GJEPC) did not fall within the ambit of State under Article 12, a Division Bench of Satish Chandra Sharma CJ., and Subramonium JJ., held that the writ petition would not be maintainable as the GJEPC, does not fall within the ambit of “State” and “other authorities” under Article 12 as GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12 or not.

The Court noted that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression “State”. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is “State”.

Placing reliance on Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 and Zee Telefilms. Ltd. v. Union of India, (2005) 4 SCC 649, the Court observed that the control that must be exercised by the State over the authority should be pervasive in nature to the extent that the authority should have limited autonomy. These are the broad guidelines that must be borne in mind when venturing into the question as to whether or not a certain authorities can be termed to be a “State”.

Thus, the Court analyzed MoA, AoA and other documents to discern whether GJEPC can be brought within the net of “other authorities” for the purpose of Article 12 and observed that a deep dive into the AoA and MoA of the GJEPC only brings forth the understanding that the GJEPC is a nodal agency, meant to mediate between exporters of gems and jewellery, and the Central Government.

The Court further noted that the function performed by the GJEPC cannot be termed as “public duty” and any administrative or financial hold that the Central Government is deemed to have over GJEPC is far from pervasive. The GJEPC retains its autonomous character and it is the CoA which not only looks after the affairs of the GJEPC, but is also empowered to make rules and regulations with regard to conditions of service, appointment, elections, etc. GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12.

The Court thus, held that the impugned judgement wherein it was held that the writ petition would not be maintainable as the GJEPC does not fall within the ambit of “State” and “other authorities” under Article 12 of the Constitution of India, is legally firm and does not require any interference on the part of this Court.

[Jitarani Udgata v. Union of India, 2022 SCC OnLine Del 3449, decided on 17-10-2022]


Advocates who appeared in this case:

Mr. Anoop Chaudhari & Ms. June Chaudhari Senior Advocates with Mr. Samarth Chowdhary, Advocate, for the Appellants;

Mr. Vivekanand Mishra & Mr. Aayushmaan Vatsyayana, Advocates, for the Respondent 1.

Mr. Jayant Mehta, Senior Advocate with Mr. Aman Raj Gandhi, Mr. Vardaan Bajaj & Mr. Abhishek Tiwari, Advocates, for the Respondent 2.


*Arunima Bose, Editorial Assistant has put this report together.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: While deciding the instant writ petition wherein an elected member of Federation of Karnataka Chambers of Commerce and Industry (FKCCI) came before the Court grieving against the alleged mismanagement of and undemocratic practices perpetrated in the FKCCI, the Bench of Krishna S. Dixit, J., declined to indulge in the matter and made certain observations regarding FKCCI and it being an “instrumentality of the State” under Art. 12 of the Constitution. Some of the important observations are as follows-

FKCCI being “instrumentality of the State” under Art. 12

  • While making observations upon this aspect, the Court noted indisputable facts that FKCCI is a very old institution having been incorporated as a company on 03-12-1938 and its Memorandum of Association enumerates its objectives, primary of which is to promote and protect inter alia trade, commerce, service and manufacture. There are 3,000 ‘direct members' and about 2,50,000 ‘indirect members' drawn from all sectors of trade, commerce & industry, spread all over Karnataka State. It is a member of national bodies like FICCI, ASSOCHAM & OVERSEAS Enterprises.

  • However, the Court observed that merely because the avowed objects of a private body linguistically partake the nature of certain functions which ordinarily governmental bodies do, it does not thereby become a limb or agency of the State. “The indicia to become one are different and apparently lacking in the formation and functioning of FKCCI. The Court also noted the submission of the petitioner's counsel who conceded that none of the High Courts in the country have yet held that Federations such as the counterparts of FKCCI fit into the expression ‘other authorities' employed in Art. 12.

  • The Court observed that if a body of individuals were to be treated as an instrumentality of State, then that would strain the writ jurisprudence, which has been developed, precedent by precedent, over the decades. The Court pointed out that an association of persons incorporated (or not), may undertake activities very much in public interest; however, it does not become a ‘State Agency' for the purpose of Part III of the Constitution.

Contractual Nature of Membership qua the Company

The Court noted that The FKCCI falls under Section 8 of the 2013 Companies Act which corresponds to Section 25 of the erstwhile Companies Act, 1956. The relation between a company of this kind and its members is essentially contractual in nature; since MOA/AOA have a binding effect on the company and its members therefore, the grievance of the petitioner if any cannot have redressal at the hands of constitutional Courts.

Desirability of Having Past Presidents in the Managerial Bodies

Noting one of the petitioner's grievances against the past Presidents being the ex-officio members of the Managing Committee, as provided under Art.11.1 (iii) of AOA, the Court observed that the provision intends to draw wisdom of the experienced and to employ it for the corporate objectives. The Court pointed out that such ideas are enacted even in the campus laws such as university legislations which provide for the appointment of ‘Old Guards' as professors emeritus and their inclusion in the Senate/Syndicate.

After all, ‘grey hair has to be respected' as of necessity, if not because of virtue”.

The Court did note that that there is some sense in the submission made on behalf of the petitioner that the inclusion of too many Past Presidents may jeopardize the flow of fresh blood into the Management Committee; however, it is for the wisdom of managerial section of the FKCCI to take a call on this.

Sub-Committee Recommendations and their Justiciability and Appointment of Observers from outside the Membership

  • The Court noted that whether a report/recommendation submitted by an expert committee should be made use of or not, is left to the discretion of the Managing Committee. It was further noted that that once the recommendation of the Bye-law Committee is tabled, deliberated & accepted, that would not proprio vigor bring about change in the structure of management of the FKCCI.

  • The Court noted that the petitioner had other channels to resolve his grievance, like the statutory channel under the Companies Act, 2013 and judicial channel in the form of NCLT. The petitioner could not have hastened to complain to the Writ Court, bypassing all these avenues.

  • Vis-a-vis grievance of petitioner against the appointment of Observers, the Court noted that past Presidents are being appointed as ‘Observers' as provided under the Byelaws of FKCCI since decades. The contention of the petitioner that these Observers should be drawn from outside so that there will be no scope for their lobbying for any particular section, cannot be agreed to. Merely because the persons appointed as Observers too have a voting right and they may vote as well, is too feeble a ground for faltering their appointments.

  • The Court stated that who should be members and who should not be, are all matters of private policy as incorporated in the MOA/AOA/Byelaws and the decision making in matters like these, are left to the Managing Committee of FKCCI.

With the afore-stated observations, the Court dismissed the instant petition.

[B. L. Shankarappa v. Federation of Karnataka Chambers of Commerce and Industry (FKCCI), 2022 SCC OnLine Kar 1585, decided on 30-09-2022]


Advocates who appeared in this case :

K.N. Phanindra, Senior Counsel a/w Kiran B S, Advocate, for the petitioners;

K.G. Raghavan, Senior Counsel a/w G. Komala, Advocate, for R1.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In total 4 writ petitions were filed against Air India Ltd./AIL (‘respondent’) by the AIL employees (‘petitioners’), being employed from late 1980s and retired between 2016 and 2018 alleging stagnation in pay and non-promotion of the petitioners along with anomalies in the fixation of pay due to the implementation of the report of the Justice Dharmadhikari Committee, which was constituted by the UoI (through its Ministry of Civil Aviation) to harmonize the differential service conditions of AIL and Indian Airlines Ltd., which came to be merged, a Division Bench of Dipankar Datta CJ., and M S Karnik J., held that the writ petitions although maintainable on the dates they were instituted, have ceased to be maintainable by reason of privatization of AIL which takes it beyond the jurisdiction to issue a writ or order or direction to it.

The Court remarked that when the Air Corporations Act, 1953 was operative, Air India was a statutory body. Thereafter, with the repeal of the said Act by the Air Corporations (Transfer of Undertakings) Act, 1994, Air India ceased to exist but upon its incorporation, AIL became a wholly owned Government company and, thus, an ‘other authority’ within the meaning of Article 12. That position subsisted when these writ petitions were instituted and continued thereafter till privatization of AIL. There is, thus, no doubt that this Court was competent to receive the writ petitions when the same were presented but not maintainable at present.

The question for consideration was regarding maintainability of the writ petitions owing to the intervening event of privatization of AIL, the principal respondent, between institution of the writ petitions and its final hearing before the Court.

The Court noted that the change in the status of the ‘authority’ against whom the writ was initially claimed to play a significant role in determining the issue of maintainability.

In Beg Raj Singh v. State of UP, (2003) 1 SCC 726, the Court laid down in para 7 that

A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e., the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law.

In Rajesh D. Darbar v. Narasingrao Krishnaji Kulkarni, (2003) 7 SCC 219, the Court laid down that the courts are entitled to mould, vary or reshape the relief to make it justly relevant in the updated circumstances, provided

(i) circumstances in which modified remedy is claimed are exceptional;

(ii) such modification, if the statute on which the legal question is based, inhibits by its scheme or otherwise, such change; and

(iii) the party claiming the relief must have the same right from which either the first or the modified remedy may flow. We do not see any reason to hold that conditions (ii) and (iii) are satisfied in view of the very scheme of a writ remedy.

The Court held that Article 226 would not arm the Courts to issue a writ to any authority or person not comprehended within its meaning and thus, they are precluded from issuing any writ to AIL in the changed circumstances.

[R S Madireddy v. Union of India, 2022 SCC OnLine Bom 2657, decided on 20-09-2022]


Advocates who appeared in this case:

Mr. Sanjay Singhvi, Senior Advocate a/w Ms. Rohini Thyagarajan, Pankaj Sutar and Ms. Shanvi Punamiya i/b. M/s. Jayakar and Partners, Advocates, for the Petitioners/applicants;

Mr. Dashrath A. Dube, Advocates, for the Union of India;

Mr. Darius Khambhata, Senior Advocate, Mr. Kevic Setalvad, Senior Advocate a/w Mr. Aditya Mehta, Sneha Prabhu, Mr. S.D. Shetty, Mr. Rakesh Singh, Mr. Ravi Kini, Shristi Shetty and Jehan Lalkaka i/by. M. V. Kini & Co., Advocates, for the respondent 3 and 4;

Mr. Muralidhar Khadilkar a/w. Mr. Aakash Joshi for proposed respondent 5 in IA(L)/25662/2022.


*Arunima Bose, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J. allowed the writ petition questioning status of IDBI Bank as “State” under Article 12 of the Constitution and further stated that the acts of public sector undertakings arising out of contractual transactions between the parties will not fall under the term “public duty” to attract the Court’s jurisdiction.

Brief facts of the case are such that the petitioner challenged the demand of Rs 11,00,000 as a processing fee of a credit facility and retaining of original property documents as security against such facility as arbitrary and illegal, hence, being violative of his fundamental rights. The petitioner, while relying on R.D.Shetty v. International Airport Authority, (1979) 3 SCC 489, contended that as per the order passed by the RBI, IDBI would be treated as a private bank only for regulatory purposes and it would continue to be a public sector bank for all other purposes. It was further argued that IDBI is controlled by the Central Government and it is always under the watch of Central Vigilance Commission.

Counsel for the respondent challenged the maintainability of Petition stating that respondent bank does not perform any public or statutory or sovereign function and it does not enjoy any monopoly in the banking. It was argued that its function is confined to commercial activities and the Central Government does not have any deep or pervasive control over its functioning.

The court dismissed the petition, holding that providing of credit facility or loan on the strength of title deeds given against security cannot be said to be done in discharge of any public function. Hence, even when the bank is a public sector bank, demand for a processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty. Therefore, IDBI is not amenable to writ jurisdiction. [Unimoni Financial Services Ltd. v. IDBI Bank Ltd., 2020 SCC OnLine Ker 7347, decided on 16-12-2020]

New releasesNews

Kumar Kartikeya’s Article 12

Overview:

This well-researched work provides an exposition of the judicial interpretation of the concept of “State” in Article 12 of the Indian Constitution. The work gives an in depth insight of the term “State”. The book contains a wealth of information and provides some solutions to vital questions on the concept of ‘State’.

The present work fulfils the void of scholarly literature in this pressing area. The book is a valuable contribution to Indian constitutional literature and a work par excellence.  The work is divided into 9 chapters.

Special features:

  • Provides a thorough and critical analysis of judicial discourse and literature on ‘State’.
  • Addresses the issue with admirable meticulousness and conceptual clarity.
  • The work focuses more on what the State implies rather than what it is.
  • Author has discussed various types of the Constitutions such as nomadic, nominal and semantic.
  • Discusses other pertinent and emerging issues other than fundamental rights and directive principles.
  • After a thorough and critical historical examination of the British and US position, the author has made successful attempt to examine the judicial response to the concept of “State” under Indian Constitution.
  • This is the only available research work on the subject.

Table Of Contents:

1. INTRODUCTION

2. CONCEPTUALISATION OF STATE AND INFLUENCE OF OTHER CONSTITUTIONS

3. THE CONCEPTUALISATION OF “STATE” VIS-À-VIS FUNDAMENTAL RIGHTS

4. CHANGING JUDICIAL DISCOURSE ON STATE VIS-À-VIS FUNDAMENTAL RIGHTS

5. JUDICIARY AS STATE?

6. THE IDEA OF STATE VIS-À-VIS DIRECTIVE PRINCIPLES OF STATE POLICY

7. THE IDEA OF STATE VIS-À-VIS NON-STATE ENTITIES

8. THE IDEA OF “STATE” IN OTHER PARTS OF THE CONSTITUTION

9. CONCLUSION

About Author

Late Dr. Kumar Kartikeya after completing his BA LLB from University of Lucknow joined the Bar and practiced law for three years. Later, to pursue higher studies in law, he joined National Law School of India University (NLSIU), Bangalore and completed his LLM with specialisation in Business Laws. However, his interest towards academics and particularly in the field of constitutional law forced him to join NALSAR University of Law, Hyderabad. Prior to joining National Law University, Odisha in 2014, he was a part of the KIIT Law School, KIIT University, Bhubaneswar. Kumar completed his PhD from National Law University Odisha on the topic “The Concept of State under the Constitution: A Critical Study of Judicial Response”. He presented numerous papers on constitutional and legal issues at various national and international seminars. Dr. Kumar, a brilliant constitutional law teacher passed away in the year 2014 due to cancer.

“Kumar was a beloved teacher, an astute and brilliant analyst of the law, a promising scholar of immaculate intellectual integrity and a man of absolute generosity and assiduous kindness to all those who worked with him,”. (Dr.) Srikrishna Deva Rao, Vice-Chancellor, National Law University Odisha.

The book provides a thorough and critical analysis of judicial discourse and literature on state. It does go beyond fundamental rights and directive principle and discusses other pertinent and emerging issues. The book does provide an in-depth insight to the concept of State. I am sure that it will be useful for the students of constitutional law, practitioners and researchers. The book contains a wealth of information and provides some solutions to vital questions on the concept of State.from the Foreword by Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR.


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Kumar Kartikeya’s Article 12