1. The University of Madras V. Shantha Bai and Anr, AIR 1954 Mad 67

Hon'ble Judges- Rajamannar, C.J. and Venkatarama Ayyar, J

Facts:

In 1949 a new college called the Mahatma Gandhi Memorial College was founded in the town of Udipi and affiliated to the University of Madras. While granting affiliation, the Syndicate gave permission for the admission of only 10 girl students in the Junior Intermediate class as a temporary measure for that year and directed that in future no women students should be admitted without the special sanction of the syndicate. On 24-7-1951, the petitioner Shantha Bai applied for admission to the Intermediate course in this college, but her application was refused by the Principal on the ground that girl students would not be admitted, there upon, she filed the petition. In appeal she raised for the issue of a writ of mandamus against the Principal of the College to admit her to the Intermediate course. The first respondent to this application was the University of Madras and the second, the Principal of the college. The affidavit in support of the petition stated that the second respondent had refused to admit the petitioner as a result of the directions given by the first respondent not to admit women into the college; that those directions were opposed to Section 5(1) of the Madras University Act, 7 of 1923 and that they were also repugnant to Article 15(1) of the Constitution, in that they discriminated against the applicant on the ground of sex and therefore void. On these allegations it was prayed that a writ of mandamus be issued directing the second respondent to admit the petitioner in the college

Contentions:

(1) Article 15 (1) prohibits discrimination only by the State; the University of Madras is not a State and its directions are therefore unaffected by the operation of Article 15 (1).

(2) The right of a citizen to get admission into an educational institution is governed not by Article 15 (1), but by Article 29 and that article does not prohibit any restriction based on the ground of sex.

(3) The directions given by the University do not deny the right of women to be admitted into colleges, but only regulates the exercise of that right and that having regard to the nature of the right, the restrictions are reasonable and not discriminatory.

Primarily, we will discuss this case as to find answer to the question, whether the University can be held to be "local or other authority" as defined in Article 12.

Pleadings:

(1) On behalf of the University it was contended that it could not be included as persons Natural or Juristic who cannot be regarded as Instrumentalities of the Government. The University of Madras is a body corporate created by Madras Act VII of 1923. It is not charged with the execution of any Governmental functions; its purpose is purely to promote education. Though Section 44 of the Act provides for financial contribution by the local

Government, the University is authorized to raise its own funds of income from fees, endowments and the like. It is a State-aided institution, but it is not maintained by the State.

(3) A direction given by the University that the colleges affiliated to it should provide certain facilities for women before they can be admitted cannot be said to be discriminatory on the ground of sex and therefore, it is not void, and that the American decisions which decided that exclusion of Negroes from educational institutions is opposed to the 14th Amendment do not bear on the point. In fact, there was no regulation refusing admission to women students. The regulations were only addressed to the colleges which refused permission to admit women when they do not provide sufficient facilities.

Judgement

The State is defined in Article 12 as including "The Government and Parliament of India and the Government and the Legislature of each of the state and all local or other authorities within the territory of India or under the control of, the Government of India." The question is whether the University can be held to be "local or other authority" as defined in Article 12. These words must be construed 'ejusdem generis' with Government or Legislature and so construed can only mean authorities exercising governmental functions. They would not include persons natural or Juristic who cannot be regarded as Instrumentalities of the Government. The University of Madras is a body corporate created by Madras Act VII of 1923. It is not charged with the execution of any Governmental functions; its purpose is purely to promote education. Though Section 44 of the Act provides for financial contribution by the local Government, the University is authorised to raise its own funds of income from fees, endowments and the like. It is a State-aided institution, but it is not maintained by the State.

The Court concluded that the University of Madras is not a state as defined in Article 12 of the Constitution and that its regulations are not subject to the prohibition enacted in Article 15(1); that admission to colleges is regulated by Article 29(2) and that the regulations of the University requiring that colleges should provide certain facilities for women before they could be admitted are not discriminatory on the ground of sex. And the appeal was allowed.

2. Rajasthan State Electricity Board, Jaipur V. Mohan Lal 1 1 AIR 1967 SC 1857.

Hon'ble Judges: K.H. Subba Rao, C.J., G.K. Mitter, J.C. Shah, J.M. Shelat and V. Bhargava, JJ

Facts:

The appellant, Electricity Board of Rajasthan Jaipur (hereinafter referred to as "the Board") is a body corporate constituted on 1st July 1957, under the Electricity (supply) Act, 1948 (No. 54 of 1948). Before the constitution of the Board the supply of electricity in the State of Rajasthan was controlled directly by a department of the State Government named as the Electrical and Mechanical Department. Respondent No. 1, Mohan Lal as well as other respondents was all permanent employees of the State Government holding posts of Foremen in the Electrical and Mechanical Department. On the Constitution of the Board the services of most the employees including all these respondents were provisionally placed at the disposal of the Board by a notification issued by the Government on 12th February 1958 purporting to exercise its power under section 78A of Act 54 of 1948. In this notification a direction was included that the Board was to frame its own new grades and service conditions under its regulations and the employees whose service were transferred to the Board were to exercise option either to accept these new grades and service conditions or to continue in their existing grades and service conditions except in regards to conduct and disciplinary rules or to obtain relief from Government service by claiming pension or gratuity as might be admissible on abolition of post under the Rajasthan Service Rules. The Board however did not frame any new grades and service conditions at least up to the time that the present litigation arose. Respondent No. 1 was deputed by the State Government by its order dated 27th January 1960. After having worked under the Board for a period of about two years to the Public Works Department of the Government, on 10th August 1960 an order was made by the Government addressed to the Secretary of the Board indicating that respondent No. 1 as well as other respondents were to be treated as on deputation to the Board. On 24th November 1962 the Public Work Department passed an order reverting respondent No. 1 to his parent department with effect from 1st December 1962 but the period of deputation was later extended till 25th July 1963. On 11th July 1963 he was actually reverted to the Board from the Public Works Department and the Board issued orders posting respondents No. 1 as a Foreman. In the interval while respondent No. 1 was working in the Public Works Department respondent 4 to 14 had been promoted by the Board as Assistant Engineers while respondent No. 1 was promoted to work as Assistant Engineer in the Public Works Department. On his reversion, respondent No. 1 claimed that he was also entitled to be promoted as Assistant Engineer under the Board because some of the other respondents promoted were junior to him and in the alternative that in any case he was entitled to be considered for promotion.

Contentions:

(1) The Board could not be held to be "State” as defined in Article 12 of the Constitution and consequently no direction could be issued to the Board by the High Court under Art 226 or 227 of the Constitution on the basis that the action of the Board had violated Article 14 and 16 of the Constitution.

(2) Respondent No. 1 claimed that he was also entitled to be promoted as Assistant Engineer under the Board because some of the other respondents promoted were junior to him and in the alternative that in any case he was entitled to be considered for promotion.

Ratio:

The State, as constituted by our Constitution, is further specifically empowered under Art 298  to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word "State" as used in Art. 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence. In circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge before us that the Board cannot be held to be an agent or instrument of the Government. The Board was clearly an authority to which the provisions of Part III of the Constitution were applicable.

The principle of Ejusdem generis enunciated in the case of Shantha Bai was rejected by the Hon’ble Supreme Court and it observed that the rule of Ejusdem generis should not be carried away too far.

It was observed, “The ejusdem generis rule is one to be applied with caution and not pushed too far... To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus.” 

In considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only

1. Whether against the authority, fundamental rights in terms absolute are intended to be enforced?

2. Whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms?

3. Sukhdev Singh v. Bhagat Ram

Facts:

Appeals against dismissal from three Corporations- Oil and Natural Gas Commission Act, 1959, Industrial Finance Corporation Act, 1943 and Life Insurance Corporation Act, 1956 were made by their respective employees regarding terms and conditions as laid down in regulations about terms of appointment, conditions of service and procedure for dismissal.

Contentions:

1. Whether an order for removal from service contrary to regulations framed under the Oil and Natural Gas Commission Act, 1959; the Industrial Finance Corporation Act, 1948; and the Life Insurance Corporation Act, 1956 would enable the employees to a declaration against the statutory corporation of continuance in service or would only give rise to a claim for damages?

2. Whether an employee of a statutory corporation is entitled to claim protection of Articles 14 and 16 against the Corporation?

Justice KK Mathew

I think, these corporations are agencies or instrumentalities of the 'state' and are, therefore, 'state' within the meaning of Article 12. The fact that these corporations have independent personalities in the eye of law does not mean that they are not subject to the control of government or that they are not instrumentalities of the government. These corporations are instrumentalities or agencies of the state for carrying on businesses which otherwise would have been run by the state departmentally. If the state had chosen to carry on these businesses through the medium of government departments, there would have been no question that actions of these departments would be 'state actions'. Why then should be actions of these corporations be not state actions?

Justice Mathew evolved a test to determine that whether a corporation comes within purview of ‘the State’ as per Art. 12-

1. Establishment of the corporation by any enactment of the Parliament/legislature2. Control over management, decision making, policy formulation and financial support

by the Government.

The employees of these statutory bodies have a statutory status and they are entitled to a declaration of being in employment when their dismissal or removal is in contravention of statutory provisions and appeals made by all the corporations were set aside by the majority.

4. Ramana Dayaram Shetty V. International Airport Authority of India and Ors

Hon'ble Judges- P.N. Bhagwati, R.S. Pathak and V.D. Tulzapurkar, JJ

Facts:

The respondent 1, the International Airport Authority of India had invited tender for setting up Canteens in the Airport premises. In the tender notice there were certain conditions to the effect that only persons fulfilling those conditions could apply for the tender. The director had the right to accept any tender or reject any tender without assigning any reason thereto. The Authority was a corporation established under the International Airport Authorities Act, 1971 enacted by the Government. The tender that was accepted was that of respondent 4. To this one A.S Irani who was already running a canteen in the Airport premises in spite of his contract period coming to an end. He filed a writ petition under Art. 226 thereby challenging the acceptance of tender and claiming it to be violative of the fundamental rights enshrined under Article 14 of the Constitution. It was submitted that he did not fulfill the conditions required for applying the tender. The writ being dismissed by the division bench in limine, the petitioner preferred an SLP under Art. 136.

Contentions:

1. The 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered 2nd Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender. The 1st respondent could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of the 4th respondents

2. The acceptance of the tender of the 4th respondents was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action.

Judgement:

The Court dismissed the appeal and confirmed the order of the High Court rejecting the writ petition. It made a remark “It does appear from the affidavits filed by the parties that the appellant has no real interest in the result of the litigation, but has been put up by A.S. Irani for depriving the 4th respondents of the benefit of the contract secured by them”. The International Airport Authority was held to be ‘authority’ as per Article 12.

However the Supreme Court gave the test to find whether a ration is an agency or instrumentality of Government:

whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance

whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary,

whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control,

whether the corporation enjoys State conferred or State protected monopoly status and

whether the functions carried out by the corporation are public functions closely related to governmental functions

5. Sabhajit Tewary V. Union of India (UOI) and Ors

Facts:

The petitioner was a junior stenographer in the Council of Scientific and Industrial Research. He was claiming upon recommendations of the Finance Sub Committee of the Council of Scientific and industrial Research with regard to remuneration of stenographers. In short, the petitioner’s allegations are that he should be granted the same number of advance increments as approved and granted to new entrants.

The petitioner has to establish that the Council of Scientific and Industrial Research is an authority within the meaning of Article 12 of the Constitution in order to prove his claim.

The Council is a society registered under the Societies Registration Act. The Prime Minister of India is the ex-officio President of the Society. The Governing Body consists of inter alia some persons appointed by the Government of India representing the administrative Ministry under which the Council of Scientific and Industrial Research is included, and the Ministry of Finance and one or more members appointed by the Government of India. The Government of India may terminate the membership of any member or at one and the same time of all members other than the ex-officio members of the Governing Body.

The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance with the provisions of Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or department of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilization of the result of the researches conducted under the auspices of the Council towards the development of industries in the country arc carried out in a responsible manner.

The case of Sabhajit Tewary has been overruled by the Supreme Court in the case of Pradeep Kumar Biswas v. Union of India.

6. Central Inland Water Transport Corporation Limited and Anr v Brojo Nath Ganguly and Anr

Facts:

The Central Inland Water Transport Corporation Limited (hereinafter referred to in short as "the Corporation"), was incorporated on February 22, 1967. The majority of the shares of the Corporation were at all times were held by the Union of India which is the Second Respondent in these Appeals, and the remaining shares were and are held by the State of West Bengal and the State of Assam.

Both Ganguly and Sengupta filed writ petitions in Calcutta High Court under Article 226 of the Constitution challenging the termination of their service from the corporation.

Contentions of the Corporation:

1. A Government company stands on a wholly different footing from a statutory corporation for while a statutory corporation is established by a statute, a Government company is incorporated like any other company by obtaining a certificate of incorporation under the Companies Act and, therefore, a Government company cannot come within the scope of the term "the State" as defined in Article 12 of the Constitution.

2. A statutory corporation is usually established in order to create a monopoly in the State in respect of a particular activity. A Government company is, however, not established for this purpose.

3. The Corporation does not have the monopoly of inland water transport but is only a trading company as is shown by the objects clause in its Memorandum of Association.

4. Assuming a Government company is "the State" within the meaning of Article 12, a contract of employment entered into by it is like any other contract entered into between two parties and a term in that contract cannot be struck down under Article 14 of the Constitution on the ground that it is arbitrary or unreasonable or unconscionable or one-sided or unfair.

Held:

The corporation was an instrumentality of the State under the meaning of Article 12 of the Constitution. It was a government company which was owned wholly by the Central Government and managed by Chairman and Board of Directors removable by the central Govt. It was held to be nothing more than a government acting under a corporate veil carrying out a Governmental activity and Governmental functions of vital public importance through the instrumentality of Government company.

8. Ajay Hasia and Ors V. Khalid Mujeeb Sheravardi and Ors2

Hon'ble Judges-Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza Fazal Ali, V.R. Krishna Iyer and A.D. Koshal, JJ.

Facts- The Regional Engineering College, Srinagar (hereinafter referred to as the College) is one of the fifteen Engineering Colleges in the country sponsored by the Government of India. The College is established and its administration and management are carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898.

In or about April 1979, the college issued a notice inviting applications for admission to the first semester of the B.E. course in various branches of engineering and the notice set out the above admission procedure to be followed in granting admissions for the academic year 1979-80. The petitioners applied for admission to the first semester of the B.E. course in one or the other branch of engineering and they appeared in the written test which was held on 16th and 17th June, 1979. The petitioners were thereafter required to appear before a Committee consisting of three persons for viva voce test and they were interviewed by the Committee. The case of the petitioners was that the interview of each of them did not last for more than 2 or 3 minutes per candidate on an average and the only questions which were asked to them were formal questions relating to their parentage and residence and hardly any question was asked which would be relevant to any of the tour factors for which marks were allocated at the viva voce examination. When the admissions were announced, the petitioners found that though they had obtained very good marks in the qualifying examination, they had not been able to secure admission to the college because the marks awarded to them at the viva voce examination were very low and candidates who had much less marks at the qualifying examination, had succeeded in obtaining very high marks at the viva voce examination and thereby managed to secure admission in preference to the petitioners. The petitioners filed before us a chart showing by way of comparison the marks obtained by the petitioners on the one hand and some of the successful candidates on the other at the qualifying examination, in the written test and at the viva voce examination. This chart shows beyond doubt that the successful candidates whose marks are given in the chart had obtained fairly low marks at the qualifying examination as also in the written test, but they had been able to score over the petitioners only on account of very high marks obtained by them at the viva voce examination. The petitioners feeling aggrieved by this mode of selection filed the present writ petitions challenging the validity of the admissions made to the college on various grounds.

Contention-

The respondents contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir Societies Registration Act, 1898 and it is therefore not an 'authority' within the meaning of Article 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint

2 AIR 1981 SC 487.

be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution.

Question to be determined- Whether the Society can be said to be 'State' within the meaning of this definition.

Justice P.N. Bhagwati-

The constitutional philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio-economic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental Rights and not to over-ride them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red-tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and Radio, Rail Road and Telephones-in short every economic activity-and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution.

If a corporation is found to be a mere agency or surrogate of the Government, "in fact owned by the Government, in truth controlled by the government and in effect an incarnation of the government," the court must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an 'authority' within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.

What then are tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government? It is not possible to formulate an inclusive or exhaustive test which would adequately answer this question. There is no cut and dried formula, which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not.

The Court approved the decision in the International Airport Authority's 3 case and summarized the relevant tests gathered from as follows:

(1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.

(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.

(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is the State conferred or State protected.

(4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.

(5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.

(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government.

The Court further observed that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12.

Judgment-

The Court directed the State Government, the Society and the College to select the best fifty students, out of those who applied for admission for the academic year 1979-80 and who have failed to secure admission so far, will be granted admission for the academic year 1981-

3 AIR 1979 SC 1628.

82 and the seats allocated to them will be in addition to the normal intake of students in the College.

The writ petition was dismissed.

7. PUDR v. Union of India

Many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. 

8. Prem Chand Garg v. Excise Commissioner, Allahabad

Facts:

The petitioners Prem Chand Garg, 8 another partners of M/s. Industrial Chemical Corporation, Ghaziabad, have filed under Art. 32 petition No. 348 of 1961 impeaching the validity of the order passed by the Excise Commissioner refusing permission to the Distillery to supply power alcohol to the petitioners. This petition was admitted on December 12, 1961 and a Rule was ordered to be issued to the respondents, the Excise Commissioner of U.P., Allahabad, and the State of U.P. At the time when the rule was thus issued, this Court directed under the impugned Rule that the petitioners should deposit a security of Rs. 2,500/- in cash within six weeks. According to the practice of this Court prevailing since 1959, this order is treated as a condition precedent for issuing rule Nisi to the impleaded respondents. The petitioners found it difficult to raise this amount and so, on January 24, 1962, they moved this Court for a modification of the said order as to security. This application was dismissed, but the petitioners were given further time to deposit the said amount by March 26, 1962. This order was passed on March 15, 1962. The petitioners then tried to collect the requisite fund, but failed in their efforts, and that has led to the present petition filed on March 24, 1962. By this petition, the petitioners contend that the impugned Rule, in so far as it relates to the giving of security, is ultra vires, because it contravenes the fundamental right guaranteed to the petitioners under Art 32 of the Constitution.

Arguments:

If a rule is made which retards or obstructs the petitioner's attempt to assert his fundamental right under Art. 32, that rule must be struck down as being violative of Art. 32. His argument is that the impugned rule imposes upon the petitioners an obligation to deposit a certain amount in Court as security for the respondent’s costs, and far from siding or assisting the petitioners' assertion of fundamental right; it has the effect of retarding or obstructing the same. If, as in this case the petitioners are unable to deposit the security, their petition is liable to be dismissed for non-prosecution. That clearly illustrates the hardship that the rule will work, and thus brings out how it contravenes Art. 32.

Held:

1. If a rule or an order imposes a financial liability on the petitioner at the thresh-hold of his petition and that too for the benefit of the respondent, and non-compliance with the said rule or order brings to an end the career of the said petition, that must be held to constitute an infringement of the fundamental right guaranteed to the citizens to move this Court under Art.32. That is why we think Rule 12 in respect of the imposing of security is invalid.

Justice Shah in this case gave a dissenting opinion thereby holding that the in a proceeding under Art. 32(1), this Court is competent to make all such orders as it deems proper including an order for security for costs of the respondent.

9. Vidya Verma v Shiv Narayan

Facts:

This is a petition under article 32 of the Constitution for writ of habeas corpus. The petition was presented by Mr. R.V.S. Mani, an advocate of the Nagpur High Court, on behalf of Shrimati Vidya Verma and was directed against her father Dr. Shiv Narayan Verma of Nagpur.

Issues:

Whether a fundamental right is involved when the detention complained of is by a private person and not by a State or under the authority or orders of a State?

Held:

Article 21 did not apply to invasions of a right by a private individual and consequently no writ in the nature of Habeas Corpus under article 32 would lie in such a case. For the same reasons we hold that the present petition which is founded on article 21 does not lie under article 32 and is accordingly dismissed.

10. P.D Shamdasani v. Central Bank of India Ltd.

Facts:

This is a petition under article 32 of the Constitution for the enforcement of the petitioner's fundamental rights under article 19(1)(f) and article 31(1) alleged to have been violated by the Central Bank of India Ltd., a company incorporated under the Indian Companies Act, 1882 and having its registered office at Bombay.

Held:

The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.

"It is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty. There is no express reference to the State in article 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals? The words 'except by procedure established by law' plainly exclude such a suggestion"

11. Naresh Sridhar Mirajkar v. State of Maharashtra.

Whether Judiciary is a state or not?

Where the High Court Judge namely Tarkunde gave an oral order to the effect that whatever the witness Goda speaks in the court shall not be published by the newspaper; the validity of the same order was challenged under Article 32 on the ground that it was violative of Article 19(1) (g) and Article 19(1) (a) i.e. freedom of speech and expression which also included the freedom of press.

The Hon’ble Supreme Court while considering this matter held that a Judge while discharging his judicial functions cannot violate fundamental rights for the reason that he for doing justice between the parties in dispute applies the provisions of law; though it may be that while discharging the Judicial function he might have exceeded the jurisdiction but then the same cannot amount to violation of fundamental right and no remedy lies against an order passed by a judge under Article 32. Judicial Orders of High Court are not amenable to be corrected by Supreme Court by issuing writ of certiorari.

A natural corollary of this decision is that since no petition under Art 32 can be entertained, the judiciary is not a state.

12. Khoday Distilleries v. Registrar General, Supreme Court of India

Constitution - writ petition - Article 32 of Constitution of India - review petition rejected on ground that submissions made therein have all been answered in judgement sought to be reviewed - on similar reasoning, writ petition having no merit was also dismissed - held, writ petition challenging validity of Order and judgement passed by Court as nullity or incorrect cannot be entertained.