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Enforcement of Fundamental Rights Against Private Players

A writ petition can be filed in the High Court (Article 226) or the Supreme Court (Article 32) of India when any of your fundamental rights are violated. The jurisdiction with the High Court (Article 226) with regards to a writ petition is wider and extends to legal rights too.

Who Can Apply?

An application even when made by a stranger in a matter which the Court deems that it is necessary to do so in furtherance of public interest is allowed. In the landmark case of Chairman, Railway Board vs. Chandrima Das (2000) 2 SCC 465 the Calcutta High Court allowed a practising advocate of the High Court at Calcutta to file a petition on behalf of the Bangladeshi woman who was picked from the railway station by the railway employees and was raped in a nearby Railway Yatri Niwas.

The Apex Court upheld the locus standi of the advocate to file the petition on her behalf and as the offence was a gross violation of Fundamental Rights under Article 21 and as such the petition was for a public interest.

The bidder or tenderer can challenge statements given arbitrarily by the courts in contravention of statutory provisions and such rights are always upheld. In the case of Cooverjee vs. Excise Commissioner AIR 1954 SC 120 it was held that where the conduct of the officers are not in accordance with the law or they act in excess of their jurisdiction it would be open to a person who had bid at an auction to approach the High Court under Article 226.

A petitioner may apply for a writ if the petitioner is able to establish that an injury or damage of kind against which the statute has been designed to give protection. However, a person interested in spreading social education and responsible for promoting it cannot be regarded to have the locus standi to maintain a petition for mandamus against the government and thus it cannot be directed to the government to set up a Social Education Board in accordance with the statute so required. This was held in the case of Kalvan Mal vs. State AIR 1972 Raj. 234.

A person who complains about infringement of his right to property then the person must be able to establish his own title the property and if his title is in dispute then he is ineligible to make such applications. In order to invoke an application under this Article one need not wait for carrying out the threat but may invoke this article if he feels threatened.

In the case of Director General vs. Union AIR 1969 Cal.149 the Calcutta High Court has categorically held that a collective body can only appeal when the petitioner is a legal entity or otherwise permitted by a statute to initiate legal proceedings in its own name and is being affected by the impugned order as a collective body.

In the case of High Court of Madhya Pradesh vs. Mahesh Prasad 1995 (1) SCC 203 it was held that an appeal by the High Court on the administrative side against the judgement of the High Court in a writ petition on the judicial side is maintainable.

Against Whom A Writ Lies?

Article 226 of the Constitution of India permits the issue of orders, directions or writs to any person or authority including any person or authority including in appropriate cases any government.

Article 226 also takes into its ambit the power to issue writs inter alia to any authority. In the case of Rajasthan Electricity Board it was for the first time that an Electricity Board was regarded as other authorities within the meaning of State under Article 12 of the Constitution. However after the judgement given in the International Airports Authority Case it has widened the term other authorities even further which includes authorities created by a statute even if the power was conferred for the purpose to carry out commercial activities.

In the case of Sukhdev Singh vs. Bhagatram (1975) 1 SCC 421 the Apex Court held that Natural Gas Commission, Life Insurance Corporation, Finance Corporation are authorities within the meaning of Article 12 and further observed that power to make rules and regulations and to administer and enforce them is deemed to be the elements of authority contemplated within the meaning of Article 12. At present, it has also been stated that even private institutions discharging public functions has also come up to be regarded as state and such public corporations too are deemed to be instrumentality of the state.

Whether Absolute Private Rights Can Be Enforced Through Article 226?

  1. M/S Ipjacket Technology India Pvt Ltd vs. M.D. Uttar Pradesh Rajkiya Nirman Nigam Ltd. (2018) Allahabad High Court
    The remedy under Article 226 of the Constitution being an extraordinary remedy, it is not intended to be used for the purpose of declaring private rights of the parties. In the case of enforcement of contractual rights and liabilities the normal remedy of filing a civil suit being available to the aggrieved party, the Court may not exercise its prerogative writ jurisdiction to enforce such contractual obligations
  2. State of Manipur & Оrs vs. Moirangthem Chaoba Singh & Оrs. (2005) Gauhati High Court
    The court held that a writ of Mandamus does not lie for enforcement of private rights, nor is it available for obtaining interim relief till cross-claims between the parties are determined in arbitration wherefrom such a provision is made in the contract itself. It is axiomatic that relations between the parties in concluded non-statutory contracts are governed by the terms and conditions thereof; and rights and obligations of parties inter se are required to be decided elsewhere. The relations are purely contractual and rights and obligations are governed only by the contract. A writ does not lie for enforcement of contractual rights.
Articles 17 and 23 of the Constitution as stated above, are not directly enforceable against private persons, and require the state to pass ordinary laws to create offenses that in tum are enforceable against private persons. The unenforceability of fundamental rights vis-a.-vis private persons do not in any way depreciate the applicability of rights, but merely provides for a different mechanism to enforce rights, i.e., through ordinary laws. Moreover, the compulsion of courts to bring an entity within the definition of 'state' under Article 12 of the Constitution, reiterates that fundamental rights are only enforceable against the state.

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