December 4, 2022

Does Article 32 apply to private law?

Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate Writs in the nature of Mandamus, Certiorari, Prohibition, Quo-warranto and Habeas Corpus for the enforcement of Fundamental Rights or for any other purpose. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of Fundamental Rights but also for “any other purpose” which would include the enforcement of public duties by public bodies.

So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative Writs for the enforcement of Fundamental Rights guaranteed to a citizen under the Constitution.

Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Article 226 and 32 has been categorised as power of “judicial review”.

Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution.

With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the Govt. or other public bodies, including Instrumentalities of the Govt., or those which can be legally treated as “Authority” within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates.

The distinction of ‘Public Law’ and ‘Private Law’

In a broad sense, it may be said that those branches of law which deal with the rights/duties and privileges of the public authorities and their relationship with the individual citizens of the State, pertain to “public law”, such as Constitutional and Administrative Law, in contradistinction to “private law” fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another.

The distinction between private law and public law was noticed by this Court in Life Insurance Corporation of India vs. Escorts Limited & Ors., 1985[1], in which the Court observed as under:-

“Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances.”

Contractual obligations under Judicial Scrutiny

Government decisions regarding award of contracts are also open to judicial review and if the decision making process is shown to be vitiated by arbitrariness, unfairness, illegality and irrationality, then the Court can strike down the decision making process as also the award of contract based on such decision. This was so laid down by supreme Court in Tata Cellular vs. Union of India, (1994).

Initially the Supreme Court was of the opinion that while the decision making process for award of a contract would be amenable to judicial review under Article 226 or 32 of the Constitution, a breach of a contractual obligation arising out of a contract already executed would not be so enforceable under such jurisdiction and the remedy in such cases would lie by way of a civil suit for damages. (See: Radhakrishna Agarwal vs. State of Bihar, (1977)

But the Court changed its opinion in subsequent decisions and held that even arbitrary and unreasonable decisions of the Government authorities while acting in pursuance of a contract would also be amenable to writ jurisdiction. This principle was laid down in Gujarat State Financial Corporation vs. Lotus Hotels Pvt. Ltd., (1983).

Supreme Court even went to the extent of saying that the terms of contract cannot be altered in the garb of the duty to act fairly. (See: Assistant Excise Commissioner vs. Issac Peter, (1994)).

Remedies in Tort under Judicial Review

Public law remedies have also been extended by supreme Court to the realm of tort. In exercise of jurisdiction under Article 32 of the Constitution, this Court has awarded compensation to the petitioners who suffered personal injuries at the hands of the officers of the Government and the causing of injuries which amounted to tortious act was compensated by Court.

  • In Rudul Sah vs. State of Bihar, 1983, a Three-Judge Bench of Supreme Court awarded compensation (Rs. 30,000/-) for illegal detention.
  • In Bhim Singh vs. State of Jammu & Kashmir, (1985), a sum of Rs. 50,000/- was awarded to the petitioner for the illegal detention of the petitioner by the State authorities.
  • In cases relating to custodial deaths, the Court has awarded compensation in Nilabati Behera vs. State of Orissa, (1993) and other cases.
  • For medical negligence, compensation was awarded by the Court in 3 Supreme Court Legal Aid Committee vs. State of Bihar, (1991) and other cases.

In Common Cause, a registered society v. Union of India, (1999), the court held,

“Where public functionaries are involved and matter relates to the violation of Fundamental Rights or the enforcement of public duties etc., the remedy would lie, at the option of the petitioner, under the public law notwithstanding that damages are also claimed in those proceedings.”

Reference

Common Cause, a registered society v. Union of India, (1999)


[1] 1985 Supp. (3) SCR 909