7 I Submissions of Mr. Sushil Salwan 22-27
8 II Submissions of Ms. Jayshree Satpute 28-31
9 D Issues 32
10 E Analysis 33-71
11 I Re. maintainability of the writ petition 33-47
12 IA Re. Contention that the appellant is a private
institution, not discharging any public duty or
performing any public function
35-47
13 Andi Mukta Sadguru 36 - 36.3
14 VST Industries Ltd 37- 37.5
15 G. Bassi Reddy 38 – 38.4
16 Federal Bank 39 – 39.3
17 Zee Telefilms 40 – 40.4
18 Binny 41 – 41.4
19 Ramesh Ahluwalia 42 – 42.3
20 Ramakrishna Mission 43 – 43.4
21 S. Shobha 44 – 44.2
22 The sequitur, and its application to the present
case
45 – 45.16
23 II Whether the appellant had violated X’s right to
privacy and confidentiality
48 - 59
24 III Whether the learned Single Judge correctly
awarded compensation to X
60 - 65
25 IV The plea of disputed issues of fact 66 - 71
26 F Conclusion 72 - 74
A. The lis
1. X, the daughter of her mother ABC and her father P, lodged a
1
First Information Report in PS Vasant Kunj on 2 August 2005 against
2 3
P under Sections 354 and 506 of the erstwhile Indian Penal Code,
1
“FIR” hereinafter
2
354. Assault or criminal force to woman with intent to outrage her modesty .—
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be
likely that he will thereby outrage her modesty, shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to five years, and
shall also be liable to fine.
3
506. Punishment for criminal intimidation .—
Whoever commits the offence of criminal intimidation shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc .—and if the threat be to cause death or grievous
hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with
death or imprisonment for life, or with imprisonment for a term which may extend to seven years,
or to impute unchastity to a woman, shall be punished with imprisonment of either description for a
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4
1860 , alleging that P had sexually assaulted her. Admittedly, the
details as well as their residential address, etc. of X, ABC and P were
disclosed in the FIR.
2. The very next date, i.e., on 3 August 2005, a team of reporters
from Star TV interviewed ABC at her residence, during the course of
which she disclosed the identity of X and the particulars of the
incident. However, on 4 August 2005, ABC addressed a notice to Star
News, prohibiting the telecasting of the interview. As it happened, the
interview was never telecast.
3. Three days thereafter, on 7 August 2005, a team of reporters
from the office of the appellant visited the residence of ABC with an
intent to obtain an interview from her and from X. ABC, however,
declined to allow them entry in the house and clearly stated that
neither she nor her daughter were amenable to interacting with the
team from the appellant-channel. Though the appellant’s team
thereafter withdrew from the premises, they, on the very same day,
i.e., 7 August 2005, telecast, over their “Aaj Tak” channel, a broadcast
which, according to the writ petition from which the present appeal
emanates, disclosed the identity of P, his designation and official
address, the fact that X was his daughter, as well as the street and
block in which they resided, from which it would be possible to
ascertain the identity of X.
4. Simultaneously, a news item also figured in the Hindustan
term which may extend to seven years, or with fine, or with both.
4
“IPC” hereinafter
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Times with respect to the aforesaid incident, in which the above
details were allegedly disclosed.
5. These facts prompted ABC to institute WP (C) 12730/2005
before this Court. Initially, the Commissioner of Police, who was
stated to have provided the details of the incident to the other
respondents, Hindustan Times House and Star TV were impleaded as
the respondents. Subsequently, however, on Star TV making a
statement before the learned Single Judge of this Court on 8 August
2005 that it was not going to air the interview which had taken place
on 3 August 2005, ABC, by CM 9505/2005, sought to delete Star
News from the array of respondents and, instead, impleaded the
present appellant as Respondent 3.
6. This writ petition stands adjudicated by a learned Single Judge
of this Court by way of judgment dated 5 February 2013, which forms
subject matter of challenge in the present appeal.
B. The Impugned Judgment
I. ABC’s stand before the learned Single Judge
7. Apropos the appellant, ABC alleged, in the writ petition, that
the broadcast which was aired on the appellant’s Aaj Tak channel on 7
August 2005 disclosed the name, designation and office of P, the
block and sector as well as images of the colony in which they were
residing, and also recorded voice of ABC refusing entry to the
appellant’s crew members. These facts, alleged the writ petition, were
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sufficient to disclose the identity of X. The appellant was alleged,
5
thereby, to have violated Section 228-A of the IPC, the Norms of
6
Journalistic Conduct issued by the Press Council of India and the
right of X to privacy and confidentiality, ingrained in Article 21 of the
Constitution of India.
8. Predicated on these assertions and allegations, the writ petition
sought injunctive reliefs against the appellant as well as monetary
compensation.
II. Appellant’s stand before the learned Single Judge
9. In response, the appellant contended, before the learned Single
Judge, that there could be no sustainable claim to breach of privacy of
X, as ABC herself had, in her interview to the Star TV channel,
disclosed X’s identity. Star News had, thereafter, been included as
Respondent 3 in the writ petition and was later deleted. The appellant
contended that ABC could not thereafter complain of violation of the
right of privacy or confidentiality of X.
10. Moreover, on facts, the appellant disputed any breach on its
part. It was asserted that X was neither interviewed, nor were any
photographs taken either of her or of ABC, and the face of ABC was
not visible in the telecast. The telecast was intended only to draw
5
228-A. Disclosure of identity of the victim of certain offences, etc .—
(1) Whoever prints or publishes the name or any matter which may make known the identity
of any person against whom an offence under Section 376, Section 376-A, Section 376-AB, Section
376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E is
alleged or found to have been committed shall be punished with imprisonment of either description
for a term which may extend to two years and shall also be liable to fine.
6
“PCI” hereinafter
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attention to the complaint which had been filed by X to the police
authorities. No information pertaining to X or to ABC was disclosed
and no details regarding the allegations levelled by X against P were
disclosed either. It was asserted that there was no material, in the
telecast, on the basis of which the identity of X could be divined.
11. The appellant also disputed the maintainability of the writ
petition, as it was a private entity not discharging any public function.
Moreover, it was submitted that a claim for monetary compensation in
such a case could lie only before a civil court, as it would involve
adjudication of disputed issues of fact.
III. Observations and Findings of learned Single Judge
12. The learned Single Judge has initially addressed the aspect of
maintainability of the writ petition. The impugned judgment holds that
a writ petition lies even against a private body performing a public
function or discharging a public duty. Reliance has been placed, by the
learned Single Judge, in this context, on the judgments of the Supreme
Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami
7
Suvarna Jayanti Mahotsav Smarak Trust v. V. Rudani , Zee
8
Telefilms v. Union of India and Federal Bank Ltd. v. Sagar
9
Thomas .
13. With respect to the judgment of a Division Bench of this Court
7
(1989) 2 SCC 691 , hereinafter “ Andi Mukta Sadguru ”
8
(2005) 4 SCC 649
9
(2003) 10 SCC 733
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10
in Indu Jain v. Forbes Inc. , on which the appellant sought to rely,
the learned Single Judge observes that, apart from the fact that the
decision did not consider the earlier law declared in Andi Mukta
Sadguru, Zee Telefilms and Federal Bank , the Court was not, in that
case, called upon to decide whether a writ petition would lie against a
private person discharging a public duty. The proceedings were not, in
fact, instituted under Article 226 of the Constitution of India.
14. The learned Single Judge has thereafter examined whether the
appellant could be said to be performing public functions or
discharging public duties when it aired the allegedly injurious telecast.
Placing reliance on the judgments of the Supreme Court in VST
11 12
Industries v. Workers’ Union and Binny Ltd. v. V. Sadasivan , the
learned Single Judge holds, with respect to the question of whether the
appellant was discharging a public function or performing a public
duty, thus, in paragraphs 35 and 36 of the impugned judgment:
“35. The position that emerges from the aforementioned
observations is that, an activity/function of a body can be said to be
a public function, for the purposes of scrutiny by a writ court, when
the same is performed under a duty to act in public interest. Such
duty may be cast upon the body: by virtue of the nature of the
function it is performing; by the fact that it is seeking to achieve
some collective benefit for the public or section of the public or
which is accepted by the public or the concerned section thereof as
having authority to do so. What is relevant is that such a body
should participate, as a part of its functions, in social or economic
affairs in the public interest.
36. Respondent No. 2 while functioning as a widely read
newspaper, disseminating news & views to the public at large, and
respondent No. 3 while functioning as a news channel, perform the
important public function of disseminating information & views
10
2007 SCC OnLine Del 1424
11
(2001) 1 SCC 298
12
(2005) 6 SCC 657
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and holding public debates & discussion in the society. The press
and the media, in a democracy where freedom of speech &
expression is preserved, have an extremely vital role to perform in
the larger public interest. The press & the media are
instrumentalities through which the right to freedom of speech and
expression of the citizens is exercised and they are also the
repository of public trust and faith. Consequently, they owe a duty
to the public at large to report news & views which ought to be
reported, correctly and wherever necessary, with restrain and
caution.”
15. Specifically with respect to the role played by the Press, the
learned Single Judge cites an Article by Hon’ble Mr. Justice
st 13
Markandey Katju (Retd.), titled Role of Media in the 21 Century as
well as the judgments of the Supreme Court in Bennett Coleman Co.
14
v. Union of India and Indian Express Newspapers (Bombay) Pvt
15
Ltd v. Union of India . Following this, the learned Single Judge
observes, with respect to the public functions discharged by the Press,
thus:
“39. It is, therefore, clear that the press & media are essential and
indispensable organs of democracy which play a very significant
and important role in the process of development and evolution of
the State. The press & media act as mirrors - reflecting the
conscience of the people of the State. They act as instruments of
change and revolution. The fundamental freedoms of speech &
expression guaranteed by Article 19(1)(a) of the Constitution of
India would remain mere theoretical concepts without a free press
and media as it is through the instrumentality of press & media that
the said freedoms are effectually exercised.
*
48. In the light of the aforesaid discussion, I am of the view, that
the press and the media perform a public function and discharge a
public duty of: disseminating news, views & information; initiating
and responding to debates; dealing with matters of current interest
in the society in all fields such as politics, morality, law, crime,
13
AIR 2002 Journal 273
14
(1972) 2 SCC 788
15
(1985) 1 SCC 641
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arts, sports, entertainment, science, philosophy, religion, etc. There
is not an aspect related to human rights and human existence which
is not dealt with by the press and the media. Considering the
immense impact that the press and media has over the polity, in my
view, it cannot be said that they do not perform a public function or
discharge a public duty, inter alia , when they perform the act of
reporting news. Their functions touch the lives of practically
everyone. Their reach is very deep and pervasive. Infact, the audio-
visual media creates an even greater impact in today's time with
deeper & wider penetration all across the State. They command
immense power of making, moulding, sustaining or even changing
public opinion. The functions performed by the press & media are
recognised by the State which, consequently, accords various rights
& privileges to them.
49. The controversy in the present case, as aforementioned,
relates to the alleged disclosure of the identity of the petitioner's
daughter, who had reported a case of alleged child sexual abuse
against her own father, by the respondents herein. The duty of the
respondents herein to maintain utmost secrecy and confidence in
the matter of identity of the petitioner's daughter has not been
disputed. Such a duty of the press & media stems from the need to
prevent social obliteration and humiliation of the victim. The
potential of the press and media to cause such harm is immense
because the press and the media enjoy a position of trust in the
society and also because of their reach. Any function/activity,
alleged to be in violation of such duty, would fall within the ambit
of scrutiny of this court exercising jurisdiction under Article 226,
especially when the same is alleged to have infringed the
fundamental rights of the victim. Therefore, the respondent nos. 2
and 3 are subject to the writ jurisdiction of this court in respect of
the public function and public duty performed by them.”
16. On merits, the learned Single Judge holds that the right to
privacy is recognized as an integral part of the right to personal liberty
under Article 21 of the Constitution of India and relies, for this
purpose, on the judgment of the Supreme Court in R. Rajagopal v.
16
State of Tamil Nadu . The right to privacy, holds the learned Single
Judge, was subject to an exception in a case where the matter had
become part of public record, but in cases of sexual assault, kidnap,
16
(1994) 6 SCC 632
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abduction and like offences, this exception would not apply. The
findings of the learned Single Judge, in this regard, as contained in
paragraph 66 of the impugned judgment, read thus:
“66. The said right to privacy is subject to certain exceptions, as
enumerated by the Supreme Court hereinabove, such as where the
matter becomes part of a public record-in which case the right to
privacy comes to an end and the press and the media get a
legitimate right to comment upon the same. There are exceptions to
this, as recognised by the Supreme Court in cases, such as, where
they pertain to a victim of sexual assault, kidnap, abduction or a
like offence. Therefore, even if the matter relating to a case of
alleged sexual abuse etc. becomes a part of the public record, the
fundamental right of the victim to be safeguarded from further
disclosure of identity and consequent subjection to social indignity
does not come to an end. Therefore, an act which violates the said
right gives cause of action to, inter alia , stake a claim of damages.”
17. The learned Single Judge, thereafter, refers to the Norms of
Journalistic Conduct issued by the PCI in 1996 which may be
reproduced as under:
“NORMS OF JOURNALISTIC CONDUCT
Principles and Ethics
The fundamental objective of journalism is to serve the people with
news, views, comments and information on matters of public
interest in a fair, accurate, unbiased, sober and decent manner. To
this end, the Press is expected to conduct itself in keeping with
certain norms of professionalism, universally recognised. The
norms enunciated below and other specific guidelines appended
thereafter, when applied with due discernment and adaptation to
the varying circumstance of each case, will help the journalist to
self-regulate his or her conduct.
*
Right to Privacy
i) The Press shall not intrude or invade the privacy of an
individual, unless outweighed by genuine overriding public
interest, not being a prurient or morbid curiosity. So, however, that
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once a matter becomes a matter of public record, the right to
privacy no longer subsists and it becomes a legitimate subject for
comment by the Press and the media, among others.
Explanation: Things concerning a person's home, family, religion,
health, sexuality, personal life and private affairs are covered by
the concept of PRIVACY excepting where any of these impinges
upon the public or public interest.
ii) Caution against Identification: While reporting crime
involving rape, abduction or kidnap of women/females or sexual
assault on children, or raising doubts and questions touching the
chastity, personal character and privacy of women, the names,
photographs of the victims or other particulars leading to their
identity shall not be published.
iii) Minor children and infants who are the offspring of sexual
abuse or ‘forcible marriage’ or illicit sexual union shall not be
identified or photographed.
*
Recording interviews and phone conversation
i) The Press shall not tape-record anyone's conversation
without that person's knowledge or consent, except where the
recording is necessary to protect the journalist in a legal action, or
for other compelling good reason.
ii) The Press shall, prior to publication, delete offensive
epithets used by a person whose statements are being reported.
iii) Intrusion through photography into moments of personal
grief shall be avoided. However, photography of victims of
accidents or natural calamity may be in larger public interest.
*
Paramount national interest
i) Newspapers shall, as a matter of self-regulation, exercise
due restraint and caution in presenting any news, comment or
information which is likely to jeopardise, endanger or harm the
paramount interests of the State and society, or the rights of
individuals with respect to which reasonable restrictions may be
imposed by law on the right to freedom of speech and expression
under clause (2) of Article 19 of the Constitution of India.
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18. Following this, the learned Single Judge holds that, having
broadcasted, on its Aaj Tak channel, the visit which took place at the
residence of ABC, with the details already noted hereinabove, the
appellant could not seek to wish away its liability and pass the buck
on to Star TV. Specifically with respect to the liability of the
appellant, the impugned judgment holds, in paragraphs 78 to 81, thus:
“78. The submission of respondent no. 3 - that the telecast only
mentioned that a complaint had been filed by the child to the
police; that respondent no. 3 took all precautions of not disclosing
the address or block where the petitioner resided; that the office
address of the petitioner's husband was not disclosed, and; that the
telecast did not contain any information pertaining to the petitioner
which could directly establish her identity - appear to be in teeth of
the material on record, which is self-explanatory.
79. A perusal of the video recording of the said telecast along
with its transcript reveals blatant violation and disregard of the
petitioner's daughter's right to privacy and confidentiality as also
the duty of respondent no. 3 herein to maintain utmost secrecy and
confidentiality in the matter of the identity of the victim of alleged
child sexual abuse. The said telecast discloses: the name of the
accused father & his place of work along with his designation -
which would not only identify him but also the victim as it is
disclosed that the victim is his own daughter; the age of the victim;
visual shots of the display board of the colony containing
particulars regarding the Sector and Pocket, wherein the petitioner
resides with her daughter; visual shots of the staircase leading to
the house along with the side shot of the doorstep of the house and;
the voice of the petitioner. Revelation of particulars of such nature
and to such an extent, are patently sufficient for the disclosure of
the identity of the petitioner's daughter in the petitioner's
community and society. The fact that the petitioner and her
daughter came to be identified by their acquaintances and
neighbours is also indicated by the fact that they had to leave their
home and go into hiding and have been located by their counsel
only recently Respondent no. 3 by its conduct, has acted in utter
disregard and disrespect of the right of the victim of sexual abuse
to privacy, recognised not only as inherent to the fundamental right
to life under Article 21 of the Constitution, but also enumerated in
the norms of journalistic conduct by which respondent no. 3 is
governed.
80. The submission of the respondent no. 3 that the recording
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mike and the camera, which were put into motion when the
correspondent initiated talks with the petitioner, were made fully
visible and of which the petitioner was duly informed about and no
attempt had been made to hide or conceal the same, is also entirely
meritless. There is not an iota of suggestion, from a perusal of the
telecast, of any such information having being passed onto the
petitioner by the crew members of respondent no. 3. The crew
members on the other hand, chose to remain silent as regards the
factum of such recording. Even if this submission of respondent
no. 3 were to be accepted, the same is no excuse to justify their
conduct. Once the petitioner had expressed her reluctance to speak
to the correspondents of respondent no. 3, they should have left
without making any further recording and could not have utilised
and aired any part of the recording made by them. They cannot
now turn around and say that they did not conceal the recording
and that the same was within the knowledge of the petitioner who,
admittedly, was still inside her house while the cameraman of
respondent no. 3 was recording from the side down below the
staircase leading to the petitioner's house. Such gross misconduct
on the part of respondent no. 3 calls for the strongest
condemnation. Their act was a display of a prurient or morbid
curiosity as proscribed in the Norms of Journalistic Conduct ’ laid
down by the PCI.
81. I therefore, hold respondent no. 3 herein liable for gross
negligence and, consequent, breach of fundamental right of the
petitioner's daughter in telecasting the said programme containing
particulars, sufficient for the disclosure of the identity of the
petitioner's daughter.”
19. Following the above discussion, the learned Single Judge
concludes the impugned judgment by observing that, in such a case, a
writ court was well within its jurisdiction in granting palliative
damages and, keeping in mind the need to deter others from
committing similar misdemeanors in future, the learned Single Judge
has deemed it appropriate to award damages of ₹ 5 lakhs in favour of
ABC and against the appellant.
20. Aggrieved thereby, the appellant has approached this Court by
means of the present appeal.
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C. Rival Contentions
21. We have heard Mr. Sushil Salwan, learned Senior Counsel
appearing for the appellant and Ms. Jayshree Satpute, learned Counsel
for the ABC at length.
I. Submissions of Mr. Sushil Salwan
22. Mr. Salwan submits, initially, that the writ petition instituted by
ABC was not maintainable. There is no pleading, in the writ petition,
to the effect that it lies against the appellant, or that the appellant was
performing any public function or discharging any public duty.
17
Relying on paragraphs 9 to 10 of Prakash Singh v. Union of India ,
18
G. Bassi Reddy v. International Crops Research Institute ,
19
paragraph 20 of Ramakrishna Mission v. Kago Kunya and S.
20
Shobha v. Muthoot Finance Limited , Mr. Salwan submits that a
“public function” has to be of a character closely related to functions
performed by the State in its sovereign capacity. Thus viewed, it is
sought to be submitted that the appellant cannot be treated as
performing any public function.
23. Mr. Salwan further submits that no fundamental right can be
enforced against a private party. He places reliance on paragraph 397
21
of the well known decision in K.S. Puttaswamy v. Union of India ,
17
2022 SCC OnLine Del 2213
18
(2003) 4 SCC 225
19
(2019) 16 SCC 303
20
2025 SCC OnLine SC 177
21
(2017) 10 SCC 1
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in which it was held that a right to privacy, though a fundamental
right, can be enforced by a writ Court against the State, an
instrumentality of the State or persons performing public functions.
The appellant does not fall within any of these categories.
24. A writ petition would not be an appropriate remedy in such a
case, he further submits, as it would require elaborate adjudication and
understanding of all defences available to the appellant. Several
disputed questions of fact would arise for consideration, inter alia
including aspects such as whether a right to privacy exists; whether,
by her own actions and conduct, ABC was foreclosed from asserting
any right to privacy; the remedy, if any, in the event of violation of
X’s or ABC’s right to privacy; and whether the violation could be
compensated in monetary terms. The learned Single Judge, he
submits, has awarded compensation without addressing these issues,
leaving all of them to be decided in the pending criminal proceedings.
25. Mr. Salwan further submits that Section 228A of the IPC, in
any case, does not apply where the alleged offence is under Section
354 and 506 of the IPC. Besides, as the FIR itself provided all details
regarding the identity of X as well as of her parents, their address etc.,
ABC could not maintain any claim of violation of privacy of X. In
fact, these details were also disclosed in the writ petition, till they
were removed by an order of Court on 8 January 2013.
26. In para IV.5 of the written submissions filed by the appellant, it
is thus further contended:
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“IV.5 There is no law which prohibited even disclosure of the
identity of the victim. Section 228 A of the IPC is not applicable to
an offence under Section 354, 506 IPC. It is only restricted to an
offence (at that time) under Section 376 IPC. Therefore, there is no
law which prohibited disclosure of the identity of the victim also.
However, the identity of the victim is not disclosed in the present
case. Her face or the face of the Writ Petitioner is not disclosed.
There is also no requirement (at that time) not to disclose the name
22
of the father .”
27. Mr. Salwan submits, finally, that the dispute between X and her
father P has since been settled and, therefore, that it would be
appropriate to bring a quietus to the present controversy as well.
II. Submissions of Ms. Jayshree Satpute
28. In response, Ms. Satpute, relying on Rudul Sah v. State of
23 24
Bihar and Nilabati Behera v. State of Orissa , submits that grant of
relief by way of monetary compensation is a recognised public law
remedy for violation of Article 21 of the Constitution of India. She
submits that the right to privacy, particularly of a child, is integral to
the right to life and dignity as enshrined in Article 21. In the case of
privacy violations, she submits that there can be no quantified loss or
damage, as the harm caused is serious and intangible. Violation of
privacy itself results in injury. She emphasises the position that the
facts are not in dispute.
22
“The requirement not to disclose anything which may lead to the disclosure of the identity of child has been
introduced only by enactment of the Protection of Children from Sexual Offence Act, 2012. Section 23 (2)
prohibits any media to disclose the identity of a child including his name, address, photograph, family details,
school, neighborhood or any other particulars which may lead to the disclosure of the identity of the child.
The present incident has taken place on 02.08.2005 which is much prior to the introduction of the Protection
of Children from Sexual Offence Act, 2012, which came into force on 20.06.2012.” (also quoted from the
written submissions filed by Mr Salwan)
23
(1983) 4 SCC 141
24
(1993) 2 SCC 746
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29. The nature of privacy as a fundamental right, relatable to
Article 21, submits Ms. Satpute, now stands crystallised by the
judgment of the Supreme Court in Puttaswamy , which has been
25
reinforced in Nipun Saxena v. Union of India , which prohibited
disclosure of the identity of victims of sexual assault. Any such
disclosure itself violates Article 21.
30. Ms. Satpute submits that she is not relying on Section 228A of
the IPC. She pegs her case on Articles 19 and 21 of the Constitution
and the Journalistic Norms and Ethics as framed by the PCI.
31. In sum, Ms. Satpute submits that the case does not deserve
interference by this Court, in LPA jurisdiction.
D. Issues
32. Three distinct issues, therefore, arise for consideration:
(i) Was the writ petition maintainable?
(ii) Had the Appellant violated the right to privacy of X, or
the Journalistic Norms and Ethics framed by the PCI?
(iii) If so, was the learned Single Judge justified in awarding
compensation of ₹ 5 lakhs to ABC/X?
E. Analysis
25
(2019) 13 SCC 715
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I. Re. maintainability of the writ petition
33. Mr. Salwan disputes the maintainability of the writ petition on
three grounds, viz. that (i) the appellant is a purely private institution,
not rendering any public function or discharging any public duty, (ii)
the case involves serious disputed questions of fact, which cannot be
adjudicated in writ jurisdiction and, in fact, the learned Single Judge
has not adjudicated any of these issues, while awarding compensation
and (iii) in view of the availability of an alternate remedy by way of a
civil suit, the writ petition ought not to have been entertained.
34. We proceed to address each of these contentions.
IA. Re. Contention that the appellant is a private institution, not
discharging any public duty or performing any public function
35. The law, relating to the exposure of private parties to Article
226 of the Constitution of India, is settled through a plethora of
judgments of the Supreme Court through which we may peregrinate,
chronologically, thus.
36. Andi Mukta Sadguru (by a bench of two Hon’ble Judges)
36.1 Appellant 1 before the Supreme Court in this case, Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
26
Smarak Trust , was a public trust, running a Science College at
26
“the Trust” hereinafter
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Ahmedabad. Academic staff employed in the college instituted a writ
petition seeking arrears of salary allegedly due to them along with
certain other attendant reliefs.
36.2 The Trust contended, inter alia , that it was not a statutory body
and was not, therefore, subject to the writ jurisdiction of the High
Court. We are concerned, for our purposes, only with this objection
and the decision of the Supreme Court thereon. The Supreme Court
dealt with the matter thus:
“15. If the rights are purely of a private character no mandamus
can issue. If the management of the college is purely a private body
with no public duty mandamus will not lie. These are two
exceptions to mandamus. But once these are absent and when the
party has no other equally convenient remedy, mandamus cannot
be denied. It has to be appreciated that the appellants trust was
managing the affiliated college to which public money is paid as
government aid. Public money paid as government aid plays a
major role in the control, maintenance and working of educational
institutions. The aided institutions like government institutions
discharge public function by way of imparting education to
students. They are subject to the rules and regulations of the
affiliating University. Their activities are closely supervised by the
University authorities. Employment in such institutions, therefore,
is not devoid of any public character. [See The Evolving Indian
Administrative Law by M.P. Jain (1983), p. 226] So are the service
conditions of the academic staff. When the University takes a
decision regarding their pay scales, it will be binding on the
management. The service conditions of the academic staff are,
therefore, not purely of a private character. It has super-added
protection by University decisions creating a legal right-duty
relationship between the staff and the management. When there is
existence of this relationship, mandamus cannot be refused to the
aggrieved party.
16. The law relating to mandamus has made the most
spectacular advance. …
17. There, however, the prerogative writ of mandamus is
confined only to public authorities to compel performance of public
duty. The “public authority” for them means everybody which is
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created by statute — and whose powers and duties are defined by
statute. So government departments, local authorities, police
authorities, and statutory undertakings and corporations, are all
“public authorities”. But there is no such limitation for our High
Courts to issue the writ “in the nature of mandamus”. Article 226
confers wide powers on the High Courts to issue writs in the nature
of prerogative writs. This is a striking departure from the English
law. Under Article 226, writs can be issued to “any person or
authority”. It can be issued “for the enforcement of any of the
fundamental rights and for any other purpose”.
18. Article 226 reads:
“226. Power of High Courts to issue certain writs .—(1)
Notwithstanding anything in Article 32, every High Court
shall have power, throughout the territories in relation to
which it exercises 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 habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred by Part III
and for any other purpose.
*
19. The scope of this article has been explained by Subba Rao,
27
J., in Dwarkanath v. ITO :
“This article is couched in comprehensive phraseology and
it ex-facie confers a wide power on the High Courts to
reach injustice wherever it is found. The Constitution
designedly used a wide language in describing the nature
of the power, the purpose for which and the person or
authority against whom it can be exercised. It can issue
writs in the nature of prerogative writs as understood in
England; but the scope of those writs also is widened by the
use of the expression “nature”, for the said expression does
not equate the writs that can be issued in India with those in
England, but only draws an analogy from them. That apart,
High Courts can also issue directions, orders or writs other
than the prerogative writs. It enables the High Court to
mould the reliefs to meet the peculiar and complicated
requirements of this country. Any attempt to equate the
scope of the power of the High Court under Article 226 of
the Constitution with that of the English courts to issue
27
(1965) 3 SCR 536
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prerogative writs is to introduce the unnecessary procedural
restrictions grown over the years in a comparatively small
country like England with a unitary form of Government
into a vast country like India functioning under a federal
structure. Such a construction defeats the purpose of the
article itself.”
20. The term “authority” used in Article 226, in the context,
must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Article 32. Article 226 confers power on
the High Courts to issue writs for enforcement of the fundamental
rights as well as non-fundamental rights. The words “any person
or authority” used in Article 226 are, therefore, not to be confined
only to statutory authorities and instrumentalities of the State. They
may cover any other person or body performing public duty. The
form of the body concerned is not very much relevant. What is
relevant is the nature of the duty imposed on the body. The duty
must be judged in the light of positive obligation owed by the
person or authority to the affected party. No matter by what means
the duty is imposed, if a positive obligation exists mandamus
cannot be denied.
28
21. In Praga Tools Corpn. v. C.A. Imanual , this Court said
that a mandamus can issue against a person or body to carry out the
duties placed on them by the statutes even though they are not
public officials or statutory body. It was observed:
“It is, however, not necessary that the person or the
authority on whom the statutory duty is imposed need be a
public official or an official body. A mandamus can issue,
for instance, to an official of a society to compel him to
carry out the terms of the statute under or by which the
society is constituted or governed and also to companies or
corporations to carry out duties placed on them by the
statutes authorising their undertakings. A mandamus would
also lie against a company constituted by a statute for the
purpose of fulfilling public responsibilities. (Cf. Halsbury's
Laws of England, 3rd Edn., Vol. II, p. 52 and onwards.)”
22. Here again we may point out that mandamus cannot be
denied on the ground that the duty to be enforced is not imposed by
the statute. Commenting on the development of this law, Professor
de Smith states: “To be enforceable by mandamus a public duty
does not necessarily have to be one imposed by statute. It may be
sufficient for the duty to have been imposed by charter, common
28
(1969) 1 SCC 585
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law, custom or even contract.” [Judicial Review of Administrative
Action, 4th Edn., p. 540] We share this view. The judicial control
over the fast expanding maze of bodies affecting the rights of the
people should not be put into watertight compartment. It should
remain flexible to meet the requirements of variable circumstances.
Mandamus is a very wide remedy which must be easily available
“to reach injustice wherever it is found”. Technicalities should not
come in the way of granting that relief under Article 226. We,
therefore, reject the contention urged for the appellants on the
maintainability of the writ petition .”
(Emphasis supplied)
36.3 Principles that emerge
(i) If
(a) the rights ventilated by the petitioner are not of a
purely private character,
(b) the respondent is not a purely private body and
(c) there is no other equally convenient remedy,
mandamus cannot be denied.
(ii) Imparting of education is a “public function”.
(iii) The relief of mandamus is not confined to public
authorities to compel performance of a public duty.
(iv) Article 226 employs the expressions “any person or
authority” and “for enforcement of fundamental rights or any
other purpose”.
(v) In Dwarkanath, the Supreme Court has held that
(a) Article 226 confers wide power on the High Court
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to reach injustice wherever found, and
(b) the Constitution designedly used wide language in
Article 226 in describing
(i) the nature of the power,
(ii) the purpose of its exercise and
(iii) the person against whom it could be
exercised.
(vi) The expression “authority” in Article 226 has to be given
a liberal meaning, unlike the meaning to be accorded to the
expression in Article 12.
(vii) The words “any person or authority” in Article 12 covers
any other person or body performing a public duty.
(viii) The form of the body was not very relevant.
(ix) What is relevant is the nature of duty performed by the
body, which must be adjudged in the light of the positive
obligation owed to the affected party. If a positive duty exists,
mandamus could not be denied.
(x) In Praga Tools Corpn, the Supreme Court had held that
mandamus could issue against any person or body to carry out
the duties placed on it by statute, even if it was not a public
official or a statutory body.
(xi) Mandamus cannot, however, be denied on the ground
that the duty was not imposed by statute. It could be imposed by
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charter, common law, custom or contract.
(xii) Technicalities should not come in the way of grant of
relief under Article 226.
37. VST Industries Ltd. (by a bench of two Hon’ble Judges)
37.1 These appeals before the Supreme Court emanated from writ
29
petitions filed by the VST Industries Workers’ Union under Article
226 of the Constitution of India, seeking a mandamus to VST
Industries Ltd to treat the members of the Union, working in the
canteen of the factory of VST Industries, as employees of VST
Industries and grant of consequential benefits. VST Industries
contested the writ petition, inter alia , on the ground that it was a
private company which did not discharge any public duty and that,
therefore, no writ could issue against it. It was submitted that VST
Industries was engaged only in manufacture and sale of cigarettes and
that providing of a canteen to the workers was merely incidental,
30
pursuant to an obligation under Section 46(1) of the Factories Act,
1948. VST Industries, it was urged, was not thereby performing any
public function.
37.2 The Supreme Court addressed the issue thus:
“7. In de Smith, Woolf and Jowell's Judicial Review of
th
Administrative Action, 5 Edn., it is noticed that not all the
29
“the Union” hereinafter
30
46. Canteens .—
(1) The State Government may make rules requiring that in any specified factory wherein
more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be
provided and maintained by the occupier for the use of the workers.
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activities of the private bodies are subject to private law, e.g., the
activities by private bodies may be governed by the standards of
public law when its decisions are subject to duties conferred by
statute or when, by virtue of the function it is performing or
possibly its dominant position in the market, it is under an implied
duty to act in the public interest . By way of illustration, it is
noticed that a private company selected to run a prison although
motivated by commercial profit should be regarded, at least in
relation to some of its activities, as subject to public law because of
the nature of the function it is performing . This is because the
prisoners, for whose custody and care it is responsible, are in the
prison in consequence of an order of the court, and the purpose and
nature of their detention is a matter of public concern and interest.
After detailed discussion, the learned authors have summarised the
position with the following propositions:
( 1 ) The test of whether a body is performing a public
function, and is hence amenable to judicial review, may not
depend upon the source of its power or whether the body is
ostensibly a “public” or a “private” body.
(2) The principles of judicial review prima facie govern
the activities of bodies performing public functions.
( 3 ) However, not all decisions taken by bodies in the
course of their public functions are the subject-matter of
judicial review. In the following two situations judicial
review will not normally be appropriate even though the
body may be performing a public function:
(a) Where some other branch of the law more
appropriately governs the dispute between the
parties. In such a case, that branch of the law and its
remedies should and normally will be applied; and
( b ) Where there is a contract between the
litigants . In such a case the express or implied terms
of the agreement should normally govern the matter.
This reflects the normal approach of English law,
namely, that the terms of a contract will normally
govern the transaction, or other relationship between
the parties, rather than the general law. Thus, where
a special method of resolving disputes (such as
arbitration or resolution by private or domestic
tribunals) has been agreed upon by the parties
(expressly or by necessary implication), that regime,
and not judicial review, will normally govern the
dispute.
8. The High Court has relied very strongly on the decision of
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31
a learned Single Judge in T. Gattaiah wherein it was stated that a
writ may lie under Article 226 of the Constitution against a
company incorporated under the Companies Act, 1956 as it is
permissible to issue a writ against any person. Prima facie ,
therefore, a private person or an incorporated company cannot be
taken out of the sweep and contemplation of Article 226 of the
Constitution. That decision does not take note of the fact as to the
nature of the functions that a person or an incorporated company
should be performing to attract judicial review under Article 226 of
the Constitution. In Andi Mukta this Court examined the various
aspects and the distinction between an authority and a person and
after analysis of the decisions referred in that regard came to the
conclusion that it is only in the circumstances when the authority or
the person performs a public function or discharges a public duty
that Article 226 of the Constitution can be invoked. In the present
case, the appellant is engaged in the manufacture and sale of
cigarettes. Manufacture and sale of cigarettes will not involve any
public function. Incidental to that activity there is an obligation
under Section 46 of the Act to set up a canteen when the
establishment has more than 250 workmen. That means, it is a
condition of service in relation to a workman providing better
facilities to workmen to discharge their duties properly and
maintain their own health or welfare. In other words, it is only a
labour welfare device for the benefit of its workforce unlike a
provision where the Pollution Control Act makes it obligatory even
on a private company not to discharge certain effluents. In such
cases public duty is owed to the public in general and not
specifically to any person or group of persons . Further the damage
that would be caused in not observing them is immense. If merely,
what can be considered a part of the conditions of service of a
workman is violated then we do not think there is any justification
to hold that such activity will amount to public duty. Thus, we are
of the view that the High Court fell into error that the appellant is
amenable to writ jurisdiction.”
(Emphasis supplied)
37.3 Principles that emerge
(i) Activities of private bodies may be governed by the
standards of public law when the decisions are subject to duties
conferred by statute or when the private body is under an
implied duty to act in public interest.
31
T. Gattaiah v. Commissioner of Labour, (1981) 2 LLJ 54 (AP)
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(ii) The nature of the function performed by a private
company could, wholly or at least partially, in a given case, be
regarded as subject to public law, such as a private company
which was engaged to run a prison.
(iii) The test of whether a body is performing a public
function and is, therefore, amenable to Article 226, may not
depend on the source of the power or whether the body is
ostensibly a “public” or a “private” body.
(iv) Activities of bodies performing public functions are
prima facie subject to Article 226.
(v) However, Article 226 would not apply where, though the
body performs a public function, either
(a) some other branch of the law more appropriately
governs the dispute, or
(b) there is a contract between the litigants.
(vi) In this context, a distinction is required to be drawn
between a public duty owed to the public in general and a
public duty owed to a specific person or group of persons.
37.4 Applying these principles, the Supreme Court held that though
VST Industries was under an obligation to set up a canteen in terms of
Section 46 of the Factories Act, that obligation was not to the public in
general but was only a labour welfare device for the benefit of its own
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workforce. The Supreme Court contradistinguished such an obligation
with the obligation which was enforced by, for example, a statute such
as the Pollution Control Act, which was vis-à-vis the general public
instead of a specific section thereof.
37.5 Following this reasoning, the Supreme Court held that no writ
petition would lie against VST Industries, at the instance of the Union.
38. G. Bassi Reddy (by a bench of two Hon’ble Judges)
38.1 The services of the appellants before the Supreme Court were
32
terminated by the respondent- International Crops Research Institute .
They challenged the termination by way of writ petitions, which were
dismissed by the High Court on the ground that the ICRISAT was not
amenable to the writ jurisdiction of the High Court. The appellants
appealed to the Supreme Court.
38.2 The Supreme Court concurred with the view of the High Court.
The reasoning of the Supreme Court is to be found in the following
passages from the report:
“25. A writ under Article 226 lies only when the petitioner
establishes that his or her fundamental right or some other legal
right has been infringed [ Calcutta Gas Co. (Proprietary)
33
Ltd. v. State of W.B. . The claim as made by the appellant in his
writ petition is founded on Articles 14 and 16. The claim would
not be maintainable against ICRISAT unless ICRISAT were a
“State” or authority within the meaning of Article 12. The tests for
determining whether an organization is either, has been recently
considered by a Constitution Bench of this Court in Pradeep
32
“ICRISAT” hereinafter
33
AIR 1962 SC 1044
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Kumar Biswas v. Indian Institute of Chemical Biology in which
we said:
“The question in each case would be — whether in the light
of the cumulative facts as established, the body is
financially, functionally and administratively dominated by
or under the control of the Government. Such control must
be particular to the body in question and must be pervasive.
If this is found then the body is a State within Article 12.
On the other hand, when the control is merely regulatory
whether under statute or otherwise, it would not serve to
make the body a State.”
26. The facts which have been narrated earlier clearly show
that ICRISAT does not fulfil any of these tests. It was not set up by
the Government and it gives its services voluntarily to a large
number of countries besides India. It is not controlled by nor is it
accountable to the Government. The Indian Government's financial
contribution to ICRISAT is minimal. Its participation in
ICRISAT's administration is limited to 3 out of 15 members. It
cannot therefore be said that ICRISAT is a State or other authority
as defined in Article 12 of the Constitution.
27. It is true that a writ under Article 226 also lies against a
“person” for “any other purpose”. The power of the High Court
to issue such a writ to “any person” can only mean the power to
issue such a writ to any person to whom, according to the well-
established principles, a writ lay. That a writ may issue to an
appropriate person for the enforcement of any of the rights
conferred by Part III is clear enough from the language used. But
the words “and for any other purpose” must mean “for any other
purpose for which any of the writs mentioned would, according to
well-established principles issue”. [ Carlshad Mineral Water Mfg.
34
Co. Ltd. v. H.M. Jagtiani ]
28. A writ under Article 226 can lie against a “person” if it is a
statutory body or performs a public function or discharges a public
or statutory duty ( Praga Tools Corpn. v. C.A. Imanual , Shri
Anadi Mukta Sadguru Trust v. V.R. Rudani and VST Industries
Ltd. v. Workers' Union ). ICRISAT has not been set up by a statute
nor are its activities statutorily controlled. Although, it is not easy
to define what a public function or public duty is, it can reasonably
be said that such functions are similar to or closely related to those
performable by the State in its sovereign capacity . The primary
activity of ICRISAT is to conduct research and training
programmes in the sphere of agriculture purely on a voluntary
34
AIR 1952 Cal 315 at 318
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basis. A service voluntarily undertaken cannot be said to be a
public duty. Besides ICRISAT has a role which extends beyond the
territorial boundaries of India and its activities are designed to
benefit people from all over the world. While the Indian public
may be the beneficiary of the activities of the Institute, it certainly
cannot be said that ICRISAT owes a duty to the Indian public to
provide research and training facilities . In Praga Tools
Corpn. v. C.V. Imanual this Court construed Article 226 to hold
that the High Court could issue a writ of mandamus “to secure the
performance of a public or statutory duty in the performance of
which the one who applies for it has a sufficient legal interest”.
The Court also held that:
“[A]n application for mandamus will not lie for an order of
reinstatement to an office which is essentially of a private
character nor can such an application be maintained to
secure performance of obligations owed by a company
towards its workmen or to resolve any private dispute.
35
(See Sohan Lal v. Union of India .)
29. We are therefore of the view that the High Court was right
in its conclusion that the writ petition of the appellant was not
maintainable against ICRISAT.”
(Emphasis supplied)
38.3 Principles that emerge
(i) Though ordinarily a writ petition would lie only against
the “State” or other authority within the meaning of Article 12
of the Constitution, it would also lie against a “person” if it is a
statutory body, performs a public function or discharges a
public or statutory duty .
(ii) Though it is not easy to define a “public function” or
“public duty”, it can be reasonably said that such functions are
similar, or closely related to those performable by the State in
its sovereign capacity.
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(iii) A voluntarily undertaken service cannot be said to be a
public duty.
38.4 Applying these principles, the Supreme Court held that the
ICRISAT did not owe a duty to the Indian public to provide research
and training facilities. Ergo, it was held that the ICRISAT was not
amenable to writ jurisdiction.
39. Federal Bank (by a bench of two Hon’ble Judges)
39.1 The Supreme Court was, in this case, concerned with whether a
writ petition, challenging termination from service, would lie at the
instance of an employee of the Federal Bank Ltd, under Article 226 of
the Constitution of India. The Federal Bank contended that it was a
private bank, not a State Agency or instrumentality within the
meaning of Article 12 of the Constitution of India, and that, therefore,
no writ petition under Article 226 could lie against it.
39.2 While the Supreme Court ultimately ruled in favour of the
Federal Bank, paras 18, 27 and 33 of the judgment are relevant:
“18. From the decisions referred to above, the position that
emerges is that a writ petition under Article 226 of the Constitution
of India may be maintainable against (i) the State (Government);
(ii) an authority; (iii) a statutory body; (iv) an instrumentality or
agency of the State; (v) a company which is financed and owned by
the State; (vi) a private body run substantially on State funding;
(vii) a private body discharging public duty or positive obligation
of public nature; and (viii) a person or a body under liability to
discharge any function under any statute, to compel it to perform
35
AIR 1957 SC 529
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such a statutory function .

27. Such private companies would normally not be amenable to
the writ jurisdiction under Article 226 of the Constitution. But in
certain circumstances a writ may issue to such private bodies or
persons as there may be statutes which need to be complied with by
all concerned including the private companies . For example, there
are certain legislations like the Industrial Disputes Act, the
Minimum Wages Act, the Factories Act or for maintaining proper
environment, say the Air (Prevention and Control of Pollution)
Act, 1981 or the Water (Prevention and Control of Pollution) Act,
1974 etc. or statutes of the like nature which fasten certain duties
and responsibilities statutorily upon such private bodies which they
are bound to comply with. If they violate such a statutory provision
a writ would certainly be issued for compliance with those
provisions. For instance, if a private employer dispenses with the
service of its employee in violation of the provisions contained
under the Industrial Disputes Act, in innumerable cases the High
Court interfered and has issued the writ to the private bodies and
the companies in that regard. But the difficulty in issuing a writ
may arise where there may not be any non-compliance with or
violation of any statutory provision by the private body. In that
event a writ may not be issued at all. Other remedies, as may be
available, may have to be resorted to .

33. For the discussion held above, in our view, a private
company carrying on banking business as a scheduled bank, cannot
be termed as an institution or a company carrying on any statutory
or public duty. 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
don't find such conditions are fulfilled in respect of a private
company carrying on a commercial activity of banking. Merely
regulatory provisions to ensure such activity carried on by private
bodies work within a discipline, do not confer any such status upon
the company nor put any such obligation upon it which may be
enforced through issue of a writ under Article 226 of the
Constitution. Present is a case of disciplinary action being taken
against its employee by the appellant Bank. The respondent's
service with the Bank stands terminated. The action of the Bank
was challenged by the respondent by filing a writ petition under
Article 226 of the Constitution of India. The respondent is not
trying to enforce any statutory duty on the part of the Bank. That
being the position, the appeal deserves to be allowed.”
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(emphasis supplied)
39.3 Principles that emerge
(i) A writ petition under Article 226 of the Constitution of
India is maintainable against
(a) the State (Government),
(b) an authority,
(c) a statutory body,
(d) an instrumentality or agency of the State,
(e) a company which is financed and owned by the
State,
(f) a private body run substantially on State funding,
(g) a private body discharging public duty or positive
obligation of public nature , and
(h) a person or a body under liability to discharge any
function under any statute, to compel it to perform such a
statutory function.
(ii) Private companies are normally not amenable to Article
226 of the Constitution of India.
(iii) However, a writ can issue to private companies or private
bodies for enforcing compliance with statutory obligations or
positive obligations of public nature.
(iv) In such a nature, the aggrieved party would be entitled to
invoke Article 226 apart from her or his remedies in ordinary
civil law . Clearly, therefore, the availability of an alternate
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remedy in civil law, even if it exists, would not be a bar to
approaching the writ court under Article 226, in such a case.
40. Zee Telefilms (by a five Judge Constitution Bench)
40.1 Zee Telefilms directly filed a writ petition in the Supreme
Court, under Article 32 of the Constitution, against the Board of
36
Control for Cricket in India . A preliminary objection was raised, by
the BCCI, to the effect that no writ petition could lie against it under
Article 32, as it was not a “State” within the meaning of Article 12.
40.2 Most of the discussion in the majority opinion in this case,
authored by N Santosh Hegde, J. relates to whether the BCCI was, or
was not, “State” within the meaning of Article 12. The Supreme Court
held, finally, that BCCI was not “State”. That part of the opinion of
the Supreme Court is not of relevance to us.
40.3 What matters is that the Supreme Court, even after holding that
BCCI was not “State” under Article 12, observed that the BCCI could,
nonetheless, maintain a writ petition seeking its reliefs under Article
226 of the Constitution of India, for which purpose it relied on the
discussion in Andi Mukta Sadguru . Paras 31 to 33 of the judgment in
Zee Telefilms are of relevance:
“31. Be that as it may, it cannot be denied that the Board does
discharge some duties like the selection of an Indian cricket team,
controlling the activities of the players and others involved in the
game of cricket. These activities can be said to be akin to public
duties or State functions and if there is any violation of any
36
“BCCI”, hereinafter
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constitutional or statutory obligation or rights of other citizens, the
aggrieved party may not have a relief by way of a petition under
Article 32. But that does not mean that the violator of such right
would go scot-free merely because it or he is not a State. Under the
Indian jurisprudence there is always a just remedy for the violation
of a right of a citizen. Though the remedy under Article 32 is not
available, an aggrieved party can always seek a remedy under the
ordinary course of law or by way of a writ petition under Article
226 of the Constitution, which is much wider than Article 32 .
32. This Court in the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak
Trust :
“Article 226 confers wide powers on the High Courts to
issue writs in the nature of prerogative writs. This is a
striking departure from the English law. Under Article 226,
writs can be issued to ‘any person or authority’. The term
‘authority’ used in the context, must receive a liberal
meaning unlike the term in Article 12 which is relevant
only for the purpose of enforcement of fundamental rights
under Article 32. Article 226 confers power on the High
Courts to issue writs for enforcement of the fundamental
rights as well as non-fundamental rights. The words ‘any
person or authority’ used in Article 226 are, therefore, not
to be confined only to statutory authorities and
instrumentalities of the State. They may cover any other
person or body performing public duty. The form of the
body concerned is not very much relevant. What is relevant
is the nature of the duty imposed on the body. The duty
must be judged in the light of positive obligation owed by
the person or authority to the affected party, no matter by
what means the duty is imposed. If a positive obligation
exists mandamus cannot be denied.”
33. Thus, it is clear that when a private body exercises its
public functions even if it is not a State, the aggrieved person has a
remedy not only under the ordinary law but also under the
Constitution, by way of a writ petition under Article 226.
Therefore, merely because a non-governmental body exercises
some public duty, that by itself would not suffice to make such body
a State for the purpose of Article 12. In the instant case the
activities of the Board do not come under the guidelines laid down
37
by this Court in Pradeep Kumar Biswas hence there is force in
the contention of Mr. Venugopal that this petition under Article 32
of the Constitution is not maintainable.”
37
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111
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(Emphasis supplied)
40.4 Principles that emerge
(i) A writ petition is maintainable under Article 226 of the
Constitution of India for enforcing any legal right even against a
private party which discharges activities which are akin to
public duties or State functions.
(ii) By means of such a writ petition, violation of
constitutional or statutory obligations or rights of the citizens
can be corrected.
(iii) While a writ petition under Article 32 would lie only
against a “State”, every such body which performs activities
akin to public duties or State functions would be amenable to
Article 226.
(iv) When a private body exercises its public functions even if
it is not a State, the aggrieved person has a remedy not only
under the ordinary law but also by way of a writ petition under
Article 226 of the Constitution of India .
41. Binny (by a bench of two Hon’ble Judges)
38
41.1 Binny Ltd was a company engaged in the manufacture of
cloth. The respondents before the Supreme Court were employees of
38
“Binny”, hereinafter
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Binny, who were terminated in terms of clause (8) of an agreement
executed between Binny and the respondents. The respondents filed a
writ petition under Article 226 of the Constitution of India for a
declaration that clause (8) of the agreement, and the order of
termination, were void, illegal and violative of Section 23 of the
Contract Act, 1872. The respondents, therefore, sought reinstatement
in service with consequential benefits.
41.2 Binny, contesting the writ petition, contended that it was a
private body against which no writ petition under Article 226 of the
Constitution of India was maintainable. Binny claimed not to be a
public authority or undertaking any action involving a public law
element.
41.3 The Supreme Court, relying on the decision in Dwarkanath ,
ruled thus:
“9. Superior court's supervisory jurisdiction of judicial review
is invoked by an aggrieved party in myriad cases. High Courts in
India are empowered under Article 226 of the Constitution to
exercise judicial review to correct administrative decisions and
under this jurisdiction the High Court can issue to any person or
authority, any direction or order or writs for enforcement of any of
the rights conferred by Part III or for any other purpose. The
jurisdiction conferred on the High Court under Article 226 is very
wide. However, it is an accepted principle that this is a public law
remedy and it is available against a body or person performing a
public law function .
10. The writ of mandamus lies to secure the performance of a
public or a statutory duty. The prerogative remedy of mandamus
has long provided the normal means of enforcing the performance
of public duties by public authorities.
11. Judicial review is designed to prevent the cases of abuse of
power and neglect of duty by public authorities. However, under
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our Constitution, Article 226 is couched in such a way that a writ
of mandamus could be issued even against a private authority.
However, such private authority must be discharging a public
function and the decision sought to be corrected or enforced must
be in discharge of a public function. The role of the State expanded
enormously and attempts have been made to create various
agencies to perform the governmental functions. Several
corporations and companies have also been formed by the
Government to run industries and to carry on trading activities.
These have come to be known as public sector undertakings.
However, in the interpretation given to Article 12 of the
Constitution, this Court took the view that many of these
companies and corporations could come within the sweep of
Article 12 of the Constitution. At the same time, there are private
bodies also which may be discharging public functions. It is
difficult to draw a line between public functions and private
functions when they are being discharged by a purely private
authority. A body is performing a “public function” when it seeks
to achieve some collective benefit for the public or a section of the
public and is accepted by the public or that section of the public as
having authority to do so. Bodies therefore exercise public
functions when they intervene or participate in social or economic
affairs in the public interest. In a book on Judicial Review of
th
Administrative Action (5 Edn.) by de Smith, Woolf & Jowell in
Chapter 3, para 0.24, it is stated thus:
“A body is performing a ‘public function’ when it seeks to
achieve some collective benefit for the public or a section
of the public and is accepted by the public or that section of
the public as having authority to do so. Bodies therefore
exercise public functions when they intervene or participate
in social or economic affairs in the public interest. This may
happen in a wide variety of ways. For instance, a body is
performing a public function when it provides ‘public
goods’ or other collective services, such as health care,
education and personal social services, from funds raised by
taxation. A body may perform public functions in the form
of adjudicatory services (such as those of the criminal and
civil courts and tribunal system). They also do so if they
regulate commercial and professional activities to ensure
compliance with proper standards . For all these purposes, a
range of legal and administrative techniques may be
deployed, including rule making, adjudication (and other
forms of dispute resolution); inspection; and licensing.
Public functions need not be the exclusive domain of the
State. Charities, self-regulatory organisations and other
nominally private institutions (such as universities, the
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Stock Exchange, Lloyd's of London, churches) may in
reality also perform some types of public function. As Sir
John Donaldson, M.R. urged, it is important for the courts
to ‘recognise the realities of executive power’ and not allow
‘their vision to be clouded by the subtlety and sometimes
complexity of the way in which it can be exerted’. Non-
governmental bodies such as these are just as capable of
abusing their powers as is Government.”
*
16. The above guidelines and principles applied by English
courts cannot be fully applied to Indian conditions while exercising
jurisdiction under Article 226 or 32 of the Constitution. As already
stated, the power of the High Courts under Article 226 is very wide
and these powers have to be exercised by applying the
constitutional provisions and judicial guidelines and violation, if
any, of the fundamental rights guaranteed in Part III of the
Constitution. In the matter of employment of workers by private
bodies on the basis of contracts entered into between them, the
Courts have been reluctant to exercise the powers of judicial
review and whenever the powers were exercised as against private
employers, it was solely done based on public law element
involved therein.
*
32. Applying these principles, it can very well be said that a
writ of mandamus can be issued against a private body which is
not “State” within the meaning of Article 12 of the Constitution
and such body is amenable to the jurisdiction under Article 226 of
the Constitution and the High Court under Article 226 of the
Constitution can exercise judicial review of the action challenged
by a party. But there must be a public law element and it cannot be
exercised to enforce purely private contracts entered into between
the parties .”
(emphasis supplied)
41.4 Principles that emerge
(i) Article 226 is available where performance is sought to
be secured of a public or statutory duty. A writ petition under
Article 226 would lie against a private authority if it was
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discharging a public function and the act or obligation which
was sought to be enforced was in discharge of such public
function.
(ii) A function would be a “public function” if it was
(i) to achieve some collective benefit for the public or
a section of the public
(ii) was accepted by the public as having authority to
do so.
(iii) Intervention or participation in social or economic affairs
in public interest would be regarded as a “public function”.
(iv) Regulation of commercial and professional activities, to
ensure compliance with proper standards, is also a public
function.
(v) Applying the principles enunciated by it to the facts, the
Supreme Court held that as Binny was a non-statutory body
incorporated under the Companies Act, and the obligation
which was sought to be enforced was not in exercise of any
statutory or public duty, no writ petition would lie at the
instance of the workmen.
39
42. Ramesh Ahluwalia v. State of Punjab (by a bench of two
Hon’ble Judges)
42.1 Ramesh Ahluwalia, employed as an Administrative Officer in
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the DAV Public School, was dismissed from service. He challenged
the dismissal by way of a writ petition under Article 226 of the
Constitution. The learned Single Judge of the High Court dismissed
the writ petition as not maintainable, as the DAV Public School, being
an unaided private school managed by a society, was not “State” or an
instrumentality of the State, and also because the writ petition raised
disputed questions of fact. The matter was carried in appeal to the
Supreme Court.
42.2 The Supreme Court noticed the earlier decisions in Andi Mukta
Sadguru , Zee Telefilms and Pradeep Kumar Biswas . Several of the
paragraphs from the judgment of the Constitution Bench in Pradeep
Kumar Biswas were extracted. Thereafter, the Supreme Court held,
with respect to the finding of the High Court on the aspect of
maintainability of the writ petition as having been filed against a body
which was not State, thus, in para 14:
“14. In view of the law laid down in the aforementioned
judgments of this Court, the judgment of the learned Single Judge
as also the Division Bench of the High Court cannot be sustained
on the proposition that the writ petition would not be maintainable
merely because the respondent institution is a purely unaided
private educational institution. The appellant had specifically taken
the plea that the respondents perform public functions i.e.
providing education to children in their institutions throughout
India .”
(Emphasis supplied)
Having so held, however, the Supreme Court sustained the final
decision of the High Court on the ground that the writ petition raised
disputed questions of fact.
39
(2012) 12 SCC 331
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42.3 The italicised words in para 14 of Ramesh Ahluwalia , as
extracted supra , indicate that the Supreme Court accepted the
contention of Ramesh Ahluwalia, advanced before the High Court,
that providing education to children was a “public function”.
43. Ramakrishna Mission (by a bench of two Hon’ble Judges)
43.1 This, again, was a service matter in which the respondent filed a
writ petition against the Ramakrishna Mission, praying for a direction
that he be allowed to continue in service in the Hospital run by the
Mission till he completed 35 years of service. Among the grounds on
which the Mission contested the writ petition was the plea that the
Mission was managing the hospital purely as a voluntary service to
society, and was not performing any public duty, so that it was not
amenable to writ jurisdiction. The Supreme Court, in para 17 of the
report, identified the basic issue arising before it as “whether the
functions performed by the hospital are public functions, on the basis
of which a writ of mandamus can lie under Article 226 of the
Constitution”.
43.2 Citing from Andi Mukta Sadguru , VST Industries , Federal
Bank and Binny , the Supreme Court proceeded to observe and hold,
in paras 25 and 29 to 32 of the report, thus:
“25. A similar view was taken in Ramesh Ahluwalia v. State of
Punjab , where a two-Judge Bench of this Court held that a private
body can be held to be amenable to the jurisdiction of the High
Court under Article 226 when it performs public functions which
are normally expected to be performed by the State or its
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authorities.
*
29. More recently in K.K. Saksena v. International
40
Commission on Irrigation & Drainage , another two-Judge
Bench of this Court held that a writ would not lie to enforce purely
private law rights . Consequently, even if a body is performing a
public duty and is amenable to the exercise of writ jurisdiction, all
its decisions would not be subject to judicial review. The Court
held thus:
“43. What follows from a minute and careful reading of
the aforesaid judgments of this Court is that if a person or
authority is “State” within the meaning of Article 12 of the
Constitution, admittedly a writ petition under Article 226
would lie against such a person or body. However, we may
add that even in such cases writ would not lie to enforce
private law rights. There are a catena of judgments on this
aspect and it is not necessary to refer to those judgments as
that is the basic principle of judicial review of an action
under the administrative law. The reason is obvious. A
private law is that part of a legal system which is a part of
common law that involves relationships between
individuals, such as law of contract or torts. Therefore, even
if writ petition would be maintainable against an authority,
which is “State” under Article 12 of the Constitution,
before issuing any writ, particularly writ of mandamus, the
court has to satisfy that action of such an authority, which
is challenged, is in the domain of public law as
distinguished from private law .”
30. Thus, even if the body discharges a public function in a
wider sense, there is no public law element involved in the
enforcement of a private contract of service.
31. Having analysed the circumstances which were relied upon
by the State of Arunachal Pradesh, we are of the view that in
running the hospital, Ramakrishna Mission does not discharge a
public function. Undoubtedly, the hospital is in receipt of some
element of grant. The grants which are received by the hospital
cover only a part of the expenditure. The terms of the grant do not
indicate any form of governmental control in the management or
day to day functioning of the hospital. The nature of the work
which is rendered by Ramakrishna Mission, in general, including
in relation to its activities concerning the hospital in question is
40
(2015) 4 SCC 670
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purely voluntary.
32. Before an organisation can be held to discharge a public
function, the function must be of a character that is closely related
to functions which are performed by the State in its sovereign
capacity. There is nothing on record to indicate that the hospital
performs functions which are akin to those solely performed by
State authorities. Medical services are provided by private as well
as State entities. The character of the organisation as a public
authority is dependent on the circumstances of the case. In setting
up the hospital, the Mission cannot be construed as having
assumed a public function. The hospital has no monopoly status
conferred or mandated by law. That it was the first in the State to
provide service of a particular dispensation does not make it an
“authority” within the meaning of Article 226. State Governments
provide concessional terms to a variety of organisations in order to
attract them to set up establishments within the territorial
jurisdiction of the State. The State may encourage them as an
adjunct of its social policy or the imperatives of economic
development. The mere fact that land had been provided on a
concessional basis to the hospital would not by itself result in the
conclusion that the hospital performs a public function. In the
present case, the absence of State control in the management of the
hospital has a significant bearing on our coming to the conclusion
that the hospital does not come within the ambit of a public
authority.”
(Emphasis supplied)
43.3 The Supreme Court also endorsed the view, in Binny , that,
while it is difficult to precisely draw a line between private and public
functions, a body “performs a public function when it seeks to achieve
some collective benefit for the public or a section of the public and is
accepted by the public as having authority to do so” and that bodies,
“therefore exercise public functions when they intervene or participate
in social or economic affairs in the public interest”.
43.4 Principles that emerge
(i) A private body is amenable to Article 226 of the
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Constitution of India when it performs public functions.
(ii) While it is difficult to precisely draw a line between
private and public functions, a body “performs a public
function when it seeks to achieve some collective benefit for the
public or a section of the public and is accepted by the public as
having authority to do so” and bodies “therefore exercise public
functions when they intervene or participate in social or
economic affairs in the public interest”.
(iii) A “public function” must be of a character which is
closely related to functions performed by the State in its
sovereign capacity.
(iv) Pure private law rights cannot be enforced by a writ
petition, even if the authority performing the act concerned is
“State” within the meaning of Article 12.
(v) No public law element is involved in enforcement of a
private contract of service. No public function is discharged in
setting up a hospital.
44. S. Shobha (by a Bench of two Hon’ble Judges)
44.1 The Supreme Court, in this case, approved and affirmed the
decision, of the High Court, that Muthoot Finance Ltd was not
amenable to writ jurisdiction of the High Court. We need only extract
paras 7 to 9 of the decision, as they lay down its ratio decidendi :
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“7. Applying the above test, the respondent herein cannot be
called a public body. It has no duty towards the public . It's duty is
towards its account holders, which may include the borrowers
having availed of the loan facility. It has no power to take any
action, or pass any order affecting the rights of the members of the
public. The binding nature of its orders and actions is confined to
its account holders and borrowers and to its employees. Its
functions are also not akin to Governmental functions.
8. A body, public or private, should not be categorized as
“amenable” or “not amenable” to writ jurisdiction . The most
important and vital consideration should be the “function” test as
regards the maintainability of a writ application. If a public duty
or public function is involved, any body, public or private,
concerned or connection with that duty or function, and limited to
that, would be subject to judicial scrutiny under the extraordinary
writ jurisdiction of Article 226 of the Constitution of India.
9. We may sum up thus:
(1) For issuing writ against a legal entity, it would have
to be an instrumentality or agency of a State or should have
been entrusted with such functions as are Governmental or
closely associated therewith by being of public importance
or being fundamental to the life of the people and hence
Governmental.
(2) A writ petition under Article 226 of the Constitution
of India may be maintainable against (i) the State
Government; (ii) Authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a company which
is financed and owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body
discharging public duty or positive obligation of public
nature; and (viii) a person or a body under liability to
discharge any function under any Statute, to compel it to
perform such a statutory function.
(3) Although a non-banking finance company like the
Muthoot Finance Ltd. with which we are concerned is duty
bound to follow and abide by the guidelines provided by
the Reserve Bank of India for smooth conduct of its affairs
in carrying on its business, yet those are of regulatory
measures to keep a check and provide guideline and not a
participatory dominance or control over the affairs of the
company.
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(4) A private company carrying on banking business as
a Scheduled bank cannot be termed as a company carrying
on any public function or public duty .
(5) Normally, mandamus is issued to a public body or
authority to compel it to perform some public duty cast
upon it by some statute or statutory rule . In exceptional
cases a writ of mandamus or a writ in the nature of
mandamus may issue to a private body, but only where a
public duty is cast upon such private body by a statute or
statutory rule and only to compel such body to perform its
public duty.
(6) Merely because a statue or a rule having the force of
a statute requires a company or some other body to do a
particular thing, it does not possess the attribute of a
statutory body.
(7) If a private body is discharging a public function
and the denial of any rights is in connection with the public
duty imposed on such body, the public law remedy can be
enforced. The duty cast on the public body may be either
statutory or otherwise and the source of such power is
immaterial but, nevertheless, there must be the public law
element in such action .
(8) According to Halsbury's Laws of England, 3rd Ed.
Vol.30, p.682, “a public authority is a body not necessarily
a county council, municipal corporation or other local
authority which has public statutory duties to perform, and
which perform the duties and carries out its transactions for
the benefit of the public and not for private profit”. There
cannot be any general definition of public authority or
public action. The facts of each case decide the point.”
(Emphasis supplied)
44.2 Principles that emerge
(i) A private banking company is not a “public body”.
(ii) However, amenability to writ jurisdiction should not be
decided on the basis of whether a body is a “private body” or
“public body”. The “function” test is determinative. If a public
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function is performed by a body, then, irrespective of whether
the body is a private body or a public body, the discharge of
such duty or function, and limited thereto, would be open to
judicial review under Article 226.
(iii) A writ petition under Article 226 of the Constitution of
India is maintainable against
(a) the State (Government),
(b) an authority,
(c) a statutory body,
(d) an instrumentality or agency of the State,
(e) a company which is financed and owned by the
State,
(f) a private body run substantially on State funding,
(g) a private body discharging public duty or positive
obligation of public nature , and
(h) a person or a body under liability to discharge any
function under any statute, to compel it to perform such a
statutory function.
(iv) A writ of mandamus can issue to a purely private body
discharging a public function or public duty, but only to compel
the private body to so discharge its public function or public
duty. If the denial of rights, as complained of by the petitioner,
is in connection with the public duty imposed on the body, the
right can be enforced under Article 226. The existence of a
public law element in the action of the private body is the sine
qua non.
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(v) Mere regulatory measures would not amount to
participatory Governmental dominance or control over the
affairs of a private company.
(vi) A private company, carrying on banking business, cannot
be said to be discharging any public function or public duty.
(vii) Ultimately, there cannot be any general definition of
“public action”. The facts of each case would decide the issue.
45. The sequitur, and its application to the present case
45.1 There can be no dispute about the fact that the appellant is not
“State” or an instrumentality of the State within the meaning of Article
12 of the Constitution.
45.2 However, while the remedy under Article 32 may be available
only against a “State” or “other authority” within the meaning of
Article 12, this restriction does not apply to Article 226. A writ, under
Article 226, can issue even to a purely private body, provided it is
discharging a public function or public duty, and the relief sought is to
compel discharge of such public function or public duty.
45.3 These aspects have been correctly noted and understood by the
learned Single Judge.
45.4 As has been held by the Supreme Court in its most recent
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decision in Shobha , the “function test” is determinative of the issue of
whether judicial review, under Article 226, can be exercised in a
particular case. The main question that the Court has to pose to itself
is whether the relief that is sought in the writ petition is for compelling
performance of a public function or a public duty which is being
undertaken by the body in question, irrespective of whether the body
itself is a private body or a public body.
45.5 This, of course, would first entail the question of whether the
body in question is in fact discharging a “public function” or “public
duty”. As the Courts have almost universally held, this is not a
question which can easily be resolved, and the line between a public
function or a public duty, and a private function or private duty, is
often thin. The facts of a case would be determinative.
45.6 Section 228A of the IPC clearly does not apply, as the FIR was
lodged under Section 354 read with Section 506 of the IPC. Ms.
Satpute also candidly acknowledged that ABC was not pressing
Section 228A.
45.7 Insofar as the aspect of “public duty” or “public function” is
concerned, the position that emerges from the authorities earlier cited
is as follows:
(i) Andi Mukta holds that the nature of duty performed by
the body “must be adjudged in the light of the positive
obligation owed to the affected party”. If a positive duty exists,
mandamus cannot be denied. It further holds that the duty in
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question need not be statutorily imposed, and may be imposed
even by charter, common law, custom or contract.
(ii) VST Industries distinguishes between a public duty owed
to the public in general and the public duty owed to a specific
person or group of persons. The former is enforceable by writ;
the latter is not. Running a prison, therefore, is a “public duty”
or “public function”, as it addresses the public in general,
whereas setting up of a canteen, even if in terms of the mandate
of the Factories Act, is not a public duty or public function, as it
is intended to cater only to the workforce of that particular
establishment. The source of the power whereby or whereunder
the duty or function is discharged or performed by the body
may not be relevant.
(iii) VST Industries further holds that duties which are
similar, or closely related to those performable by the State in
its sovereign capacity are “public duties”. In this context, it is
necessary to note that, while certain decisions use the
performability of such duties by the State in its sovereign
capacity as a determinative test to decide whether the duty is a
“public duty”, others have merely treated the test as indicative.
The “similarity” test, between the function of duty performed
by the body in question and activities performable by the State,
to determine whether the function or duty performed by the
respondent would be a public function or public duty, is
reiterated in Zee Telefilms and Ramakrishna Mission .
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(iv) G. Bassi Reddy reiterates that a writ petition is
maintainable even against a private person with respect to
discharge of a statutory or a public duty. In other words, the
duty need not be one which is enforced by statute. However, the
judgment clarifies that a voluntarily undertaken service cannot
be a “public duty”.
(v) Even if the body is discharging a public function or
public duty, a writ petition under Article 226 would lie only if
the relief sought is by way of compelling the body authority to
properly discharge such public function or public duty. It is not,
therefore, merely the nature of the function or duty performed
by the body which is relevant; the Court has also to see the
nature of the relief sought, and the extent to which the relief
compels performance of the public function or public duty.
(vi) The principle that a private body, which discharges a
public duty or positive obligation of public nature, would be
subject to Article 226, is reiterated in Federal Bank . The
obligation that is sought to be enforced by writ may be a
statutory obligation or a positive obligation of public nature.
(vii) Binny reiterates the position that a petition would lie
against a private authority if it discharges a public function, and
the remedy in the petition seeks enforcement of such public
function. The judgment also defines a “public function” as a
function which achieves some collective benefit for the public
or a section of the public, where the public accepts the body
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discharging the function as having authority to do so. For
example, intervention or participation in social or economic
affairs in public interest is identified as a “public function”, as
the regulation of commercial and professional activities, to
ensure compliance with proper standards. This test stands
reiterated in Ramakrishna Mission .
(viii) Providing education to children has been held to be a
“public function” in Ramesh Ahluwalia , whereas a private
banking company has been held, in Shobha , not to be
discharging any public function.
(ix) Shobha again reiterates the position that the availability
of a remedy under Article 226 is not to be decided on the basis
of the nature of the body against whom the remedy is being
sought to be enforced, but the nature of the duty or function
performed by such body. If the body performs a public duty or
public function, then a writ petition would lie for ensuring the
performance of such public duty or public function. It expresses
the principle otherwise by observing that the existence of a
public law element in the action of the private body is the sine
qua non for judicial review of such action to be permissible
under Article 226.
45.8 We have already extracted, in para 15 supra , the basis on which
the learned Single Judge has held that the appellant performs a public
function. The learned Single Judge has relied, in this context, on an
article by Hon’ble Mr. Justice Markandey Katju as well as the
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judgments of the Supreme Court in Bennett Coleman and Indian
Express Newspapers . Following these, the learned Single Judge
observes, in para 39, 48 and 49 of the impugned judgment, that the
press and media, of which the appellant is an inalienable part,
certainly performs a public function, and also discharges the public
duty of dissemination of news, views and information, debates on
current issues, and the like. It has been noted, by the learned Single
Judge that, as on date, there is no aspect relating to human rights and
human existence which is not dealt with by the press and the media.
The impugned judgment was rendered 12 years ago, and the extent of
societal penetration, by the media, both electronic as well as the press,
has only increased since then, by leaps and bounds. Human affairs, in
today’s day and age, are often controlled, to the greatest extent, by the
fourth estate. We reiterate the observations, by the learned Single
Judge, that the media commands immense power of making,
moulding, sustaining and even changing public opinion.
45.9 The reliance, by the learned Single Judge, on the following
passages from Bennett Coleman is, in the context, well taken:
“80. The faith of a citizen is that political wisdom and virtue will
sustain themselves in the free market of ideas so long as the
channels of communication are left open. The faith in the popular
Government rests on the old dictum, “let the people have the truth
and the freedom to discuss it and all will go well.” The liberty of
the press remains an “Art of the Covenant” in every democracy.
Steel will yield products of steel. Newsprint will manifest whatever
is thought of by man. The newspapers give ideas. The newspapers
give the people the freedom to find out what ideas are correct.
Therefore, the freedom of the press is to be enriched by removing
the restrictions on page limit and allowing them to have new
editions or new papers . It need not be stressed that if the quantity
of newsprint available does not permit grant of additional quota for
new papers that is a different matter. The restrictions are to be
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removed. Newspapers have to be left free to determine their pages,
their circulation and their new editions within their quota of that
has been fixed fairly.
*
95. It is difficult to over-emphasize the importance of Freedom
of the Press as one of the pillars of a Government “of the people,
by the people, and for the people ”. I may quote what Lord Bryce
said in American Commonwealth (New and Revised Edition)(pp.
274, 275, and 367):
‘The more completely popular sovereignty prevails in a
country, so much the more important is it that organs of
opinion should be adequate to its expression, prompt, full,
and unmistakable in their utterances.… The press, and
particularly the newspaper press, stands by common
consent first among the organs of opinion.… The
conscience and common sense of the nation as a whole
keep down the evils which have crept into the working of
the Constitution, and may in time extinguish them…. That
which, carrying a once famous phrase, we may call the
genius of universal publicity, has some disagreeable
results, but the wholesome ones are greater and more
numerous . Selfishness, injustice, cruelty, tricks and jobs of
all sorts, shun the light; to expose them is to defeat them.
No serious evils, no rankling sore in the body politic, can
remain long concealed, and, when disclosed, it is half
destroyed. So long as the opinion of a nation is sound, the
main lines of its policy cannot go far wrong.’
*
97. Political philosophers and historians have taught us that
intellectual advances made by our civilisation would have been
impossible without freedom of speech and expression. At any rate,
political democracy is based on the assumption that such freedom
must be jealously guarded. Voltaire expressed a democrat's faith
when he told an adversary in argument: “I do not agree with a
word you say, but I will defend to the death your right to say it”.
Champions of human freedom of thought and expression,
throughout the ages, have realised that intellectual paralysis creeps
over a Society which denies, is however subtle a form, due
freedom of thought and expression to its members.
98. Although, our Constitution does not contain a separate
guarantee of Freedom of the Press, apart from the freedom of
expression and opinion contained in Article 19(1)(a) of the
Constitution, yet, it is well recognised that the Press provides the
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principal vehicle of expression of their views to citizens. It has
been said: ‘Freedom of the Press is the Ark of the Covenant of
Democracy because public criticism is essential to the working of
its institutions. Never has criticism been more necessary than
today, when the weapons of propaganda are so strong and so
subtle. But, like other liberties, this also must be limited ’.”
(Emphasis in the original)
45.10 Indian Express Newspapers perpetuated the principle:
“ 32. In today's free world freedom of press is the heart of social
and political intercourse. The press has now assumed the role of
the public educator making formal and non-formal education
possible in a large scale particularly in the developing world,
where television and other kinds of modern communication are not
still available for all sections of society. The purpose of the press is
to advance the public interest by publishing facts and opinions
without which a democratic electorate cannot make responsible
judgments. Newspapers being purveyors of news and views having
a bearing on public administration very often carry material which
would not be palatable to Governments and other authorities.
…………………… Governments naturally take recourse to suppress
newspapers publishing such articles in different ways. Over the
years, Governments in different parts of the world have used
diverse methods to keep press under control. …………………… It
is with a view to checking such malpractices which interfere with
free flow of information, democratic constitutions all over the
world have made provisions guaranteeing the freedom of speech
and expression laying down the limits of interference with it. It is,
therefore, the primary duty of all the national courts to uphold the
said freedom and invalidate all laws or administrative actions
which interfere with it, contrary to the constitutional mandate.
*
39 . The Second Press Commission has explained the concept
of freedom of press in its Report (Vol. I pp. 34-35) thus:
*
16. The theory is that in a democracy freedom of
expression is indispensable as all men are entitled to
participate in the process of formulation of common
decisions. Indeed, freedom of expression is the first
condition of liberty. It occupies a preferred position in the
hierarchy of liberties giving succour and protection to other
liberties. It has been truly said that it is the mother of all
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other liberties. The Press as a medium of communication is
a modern phenomenon. It has immense power to advance
or thwart the progress of civilization. Its freedom can be
used to create a brave new world or to bring about
universal catastrophe.
17. ….. ….. ….. ….. …… It is the function of the Press to
disseminate news from as many different sources and with
as many different facts and colours as possible. A citizen is
entirely dependent on the Press for the quality, proportion
and extent of his news supply . ….. ….. ….. ….. ….. …..
The assumption in a democratic set-up is that the freedom
of the press will produce a sufficiently diverse Press not
only to satisfy the public interest by throwing up a broad
spectrum of views but also to fulfil the individual interest
by enabling virtually everyone with a distinctive opinion to
find some place to express it’ ”
(Emphasis in the original)
45.11 Yet again, in Sanjay Narayan v. Hon’ble High Court of
41
Allahabad , we find the following exposition:
“3. The media, be it electronic or print media, is generally
called the fourth pillar of democracy. The media, in all its forms,
whether electronic or print, discharges a very onerous duty of
keeping the people knowledgeable and informed. The impact of
media is far-reaching as it reaches not only the people physically
but also influences them mentally. It creates opinions, broadcasts
different points of view, brings to the fore wrongs and lapses of the
Government and all other governing bodies and is an important
tool in restraining corruption and other ill-effects of society. The
media ensures that the individual actively participates in the
decision-making process. The right to information is fundamental
in encouraging the individual to be a part of the governing process.
…”
45.12 In such circumstances, it would be unrealistic to hold that the
media, and those who form an inalienable part thereof, do not perform
any public function.
41
(2011) 13 SCC 155
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45.13 Inherent, in the public function performed by the media, which
would include the appellant, is the public duty to ensure that the rights
of the public are not prejudiced or injured by the manner in which
such public function is performed. Intrinsically intertwined with the
performance of the public function is, therefore, the public duty to
ensure due care and attention during its discharge and performance.
45.14 The case set up by ABC in the writ petition, was of serious and
irreparable injury of the right of X to privacy and confidentiality, as a
consequence of the telecast aired by the appellant in its Aaj Tak
program. If the allegation were to be accepted, it would clearly
amount to improper and, in fact, illegal discharge, by the appellant, of
its public function of disseminating news. The remedy sought in the
writ petition was, therefore, clearly intended to ensure proper
discharge, by the appellant, of the public duty which vested in it,
while performing the public function of conveying news to the nation.
45.15 Applying the test in the decisions cited supra , therefore, we are
of the opinion that the appellant is in fact discharging a public
function, which involved the public duty to ensure that the public
function was discharged without injuring the fundamental rights of the
persons involved, and that the reliefs sought in the writ petition were
intended to ensure proper and constitutional discharge of such public
function.
45.16 Zee Telefilms , rendered by the Constitutional bench, further
clarifies that, in such a case, the remedy under Article 226 is available
apart from and in addition to the remedy available in ordinary civil
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law . No plea of alternate remedy can, therefore, sustain.
46. Mr. Salwan also sought to contend that, as disputed questions of
facts were involved, the learned Single Judge ought not to have
entertained the writ petition. We would be dealing with this aspect
towards the conclusion of this judgment. Suffice it, at this stage, to
state that we unhesitatingly reject it.
47. The writ petition was, therefore, maintainable under Article 226
of the Constitution of India.
II. Whether the appellant had violated X’s right to privacy and
confidentiality
48. The learned Single Judge has castigated the act of the appellant
in telecasting the details of the visit at the residence of X, as well as
the details of the location of the residence, the name, official
designation and the official address of her father, and the voice of
ABC, as “display of prurient or morbid curiosity”. The expressions
used are extreme.
49. We entirely endorse the view.
50. This is a classic case in which, probably in the zeal of securing
42
higher TRPs , a Nelson’s eye was turned to the rights of X, who,
even as per the appellant’s own understanding at that point of time,
had alleged sexual assault at the hands of her own father. The apathy
42
Television Rating Points
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displayed by the appellant in the following passage from its written
submissions, already reproduced in para 26 supra , is deeply
disturbing:
“IV.5 There is no law which prohibited even disclosure of the
identity of the victim. Section 228 A of the IPC is not applicable to
an offence under Section 354, 506 IPC. It is only restricted to an
offence (at that time) under Section 376 IPC. Therefore, there is no
law which prohibited disclosure of the identity of the victim also.
However, the identity of the victim is not disclosed in the present
case. Her face or the face of the Writ Petitioner is not disclosed.
There is also no requirement (at that time) not to disclose the name
of the father.”
Apart from the fact that such an attitude is not expected from what
purports to be a TV channel of some distinction, it also displays a
woeful lack of understanding of fundamental rights, and what they
mean and entail.
51. The above submission of the appellant is truly surprising,
especially as the learned Single Judge has reproduced, in para 65 of
the impugned judgment, the following summarisation of the right to
privacy, as it resides in Article 21 of the Constitution of India, from
para 26 of the report from the judgment of the Supreme Court in R.
Rajagopal :
“(1) The right to privacy is implicit in the right to life and
liberty guaranteed to the citizens of this country by Article 21. It is
a “right to be let alone”. A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood,
child bearing and education among other matters. None can
publish anything concerning the above matters without his consent
- whether truthful or otherwise and whether laudatory or critical.
If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages .
Position may, however, be different, if a person voluntarily thrusts
himself into controversy or voluntarily invites or raises a
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controversy.
(2) The rule aforesaid is subject to the exception, that any
publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records
including court records. This is for the reason that once a matter
becomes a matter of public record, the right to privacy no longer
subsists and it becomes a legitimate subject for comment by press
and media among others. We are, however, of the opinion that in
the interest of decency [Article 19(2)] an exception must be carved
out to this rule, viz., a female who is the victim of a sexual assault,
kidnap, abduction or a like offence should not further be subjected
to the indignity of her name and the incident being publicised in
press/media .”
(Emphasis supplied)
52. As the appellant has taken pains to point out, the Protection of
Children from Sexual Offence Act, which statutorily proscribed
disclosure, by anyone, of any such details as would render it possible
to identify a victim of sexual assault, came to be enacted only in 2012.
The injurious telecast, in the present case, was in 2005. The appellant
submits, therefore, that, at the time of broadcasting of the injurious
telecast, there was no proscription against disclosure, either of the
identity of the victim of sexual assault, or of the identity of her father.
53. Sources of law, in the Indian legal system, as is taught in
elementary law school, are statute, precedent and custom. None cedes
place to the other. Under Article 141 of the Constitution of India, the
Supreme Court declares the law as it always stood, and it is only
where a judgment is expressly made prospectively applicable, that it
would so apply; else, every judgment of the Supreme Court is
declaratory of the legal position as it always was and, therefore, ipso
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43
facto has retrospective application .
54. Moreover, fundamental rights are fundamental because they are
inherent in every citizen. They do not need a declaration by a Court
for recognition. That privacy is inherent in the right to life, guaranteed
by Article 21, is ex facie apparent. The Supreme Court has, since time
immemorial, at least since as far back as in Upendra Baxi v. State of
44
Uttar Pradesh , consistently ruled that the right to life includes,
within it, the right to live with dignity. Inherent in the right to live
with dignity is the right to privacy, which includes the right against
having any such details, of one’s personal existence, put up for public
gaze, save and except with one’s consent. We cannot believe that the
appellant was of the view that it was perfectly permissible for it to
broadcast, to the viewing public, who viewed its Aaj Tak programme,
the events which transpired with the X, without the X’s consent, and
especially when ABC had expressly declined to interact with the
appellant’s team.
55. In the wake of the fact that ABC had specifically declined to
interact with the appellant’s team, the only course of action open to
them was to withdraw and give up the idea of telecasting any mention
of what had transpired with X. Instead, with complete indifference to
the wishes of ABC, the appellant went ahead and telecast its program.
56. We have already reproduced, earlier in this judgement, the
Norms of Journalistic Conduct laid down by the PCI in 1996. It goes
43
Refer M.A. Murthy v. State of Karnataka, (2003) 7 SCC 517
44
(1983) 2 SCC 308
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without saying that these norms bound the Appellant. The specific
section, in the Norms, deals with the right to privacy, and proscribed
intrusion or invasion, by the Press, of the privacy of an individual,
unless outweighed by genuine overriding public interest. The
Explanation to this clause clarifies the position by specifically
prohibiting disclosure of “things concerning a person’s home, family,
religion, health, sexuality, personal life and private affairs”. Clause ii),
which follows, again, even more specifically, proscribed publication,
while reporting any case of sexual assault on children, “the names,
photographs of the victims or other particulars leading to their
identity ”. We cannot accept an explanation that it was necessary to
telecast the details of the receipt which took place at ABC’s home,
disclosed the details of the incident concerned and provide pointers on
the basis of which the identity as well as the residents of X could
easily be ascertained, in overarching public interest.
57. The transcript of the program aired by the appellant is on
record. As the learned Single Judge has correctly observed, the
program disclosed the full name of X’s father P, his official
designation as well as the organisation in which he was employed, the
age of X, the address board of the colony as well as a photograph of
X’s house and the steps leading thereto. Moreover, the voice of ABC
was also telecast.
58. The act of the appellant is clearly in the teeth of the principles
laid down by the Supreme Court in para 26 of R. Rajagopal . It is,
therefore, ex facie illegal.
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59. We, therefore, uphold the view of the learned Single Judge that,
by telecasting the injurious program on its Aaj Tak channel, the
appellant blatantly violated the right to privacy of X.
III. Whether the learned Single Judge correctly awarded
compensation to X
60. The learned Single Judge has held that, having violated X’s
right to privacy and confidentiality, and having telecast the program
revealing the details of her allegation against P, as well as details
which would enable disclosure of her identity, the appellant was liable
to compensate X.
61. Compensation has long been recognised as a remedy and
measure in cases where, by tortious acts, injury results, which cannot
be quantified in actual terms. That X has suffered serious and
irreparable injury as a result of the telecasting of the Aaj Tak
programme, despite ABC having clearly declined even to interact with
the appellant’s team, cannot be disputed. In Jane Kaushik v. Union
45
of India , the Supreme Court has upheld the power to remedy
violation of a fundamental right, where there is no remedial measure
available under the statute, by monetary compensation. The Supreme
Court has, in the said case, identified the distinction between vertical
and horizontal applicability of fundamental rights. Fundamental rights
apply both vertically and horizontally. When applied vertically, they
apply between the individual and the State. However, it is the duty of
every citizen to ensure that she, or he, does not act in such a way as to
45
(2026) 1 SCC 336
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trespass on the fundamental rights of other individuals and, in that
manner, fundamental rights apply horizontally as well. In this context,
the Supreme Court has referred to the earlier decision of the
46
Constitution Bench in Kaushal Kishor v. State of Uttar Pradesh .
That decision contains a detailed discussion on the vertical and
horizontal applicability of fundamental rights, which is an instructive
treatise on its own, and essential reading for every student of
fundamental rights.
62. We do not deem it necessary to burden this judgment with any
exhaustive discussion on the aspect. Suffice it, therefore, to state that,
in para 80 of the report, the Constitution Bench has held that “for
instance, the rights conferred by Articles 15(2)( a ) and ( b ), 17, 20(2),
21, 23, 24, 29(2), etc. are obviously enforceable against non-State
actors also”. The Court further observes, in the same profession, that,
where non-State actors violate fundamental rights of others, the Court
has awarded damages. Various examples have been provided, in the
said decision, in this regard, in the following passages:
“81.9. As rightly highlighted by the learned Amicus Curiae, this
Court has awarded damages against non-State actors under the
environmental law regime, whenever they were found to have
violated the right under Article 21. For instance this Court was
47
concerned with a case in M.C. Mehta v. Kamal Nath where a
company built a club on the banks of River Beas, partly taken on
lease from the Government and partly by encroaching into forest
land and virtually turning the course of the river. Invoking the
“ polluter pays principle ” and “ precautionary principle ”
landscaped in Vellore Citizens' Welfare Forum v. Union of
48
India and also applied in Indian Council For Enviro-Legal
46
(2023) 4 SCC 1
47
(1997) 1 SCC 388
48
(1996) 5 SCC 647
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49
Action v. Union of India , this Court held the owner of the private
motel to be liable to pay compensation towards the cost of
restoration of the ecology of the area. Thereafter, a show-cause
notice was issued to the motel as to why they should not be asked
to pay compensation to reverse the degraded environment and as to
why a pollution fine should not be imposed. In response, the motel
contended before this Court that though in proceedings under
Article 32 it was open to this Court to grant compensation to the
victims whose fundamental rights were violated or who are victims
of arbitrary Executive action or victims of atrocious behaviour of
public authorities, the Court cannot impose any fine on those who
are guilty of that action. The motel also contended that fine is a
component of criminal jurisprudence and hence the imposition of
fine would be violative of Articles 20 and 21. This Court, even
while accepting the said argument insofar as the component of fine
is concerned, directed the issue of fresh notice to the motel to show
cause why exemplary damages be not awarded, in addition to the
damages already awarded. Thereafter, this Court held in M.C.
Mehta v. Kamal Nath as follows:
“10. In the matter of enforcement of fundamental rights
under Article 21, under public law domain, the Court, in
exercise of its powers under Article 32 of the Constitution,
has awarded damages against those who have been
responsible for disturbing the ecological balance either by
running the industries or any other activity which has the
effect of causing pollution in the environment. The Court
while awarding damages also enforces the “polluter-pays
principle” which is widely accepted as a means of paying
for the cost of pollution and control. To put in other words,
the wrongdoer, the polluter, is under an obligation to make
good the damage caused to the environment.”
81.10. In Consumer Education & Research Centre v. Union of
50
India , this Court held that in appropriate cases the Court could
give appropriate directions to the employer, be it the State or its
undertaking or private employer , to make the right to life
meaningful, to prevent pollution of work place, protection of
environment, protection of the health of the workmen and to
preserve free and unpolluted water for the safety and health of the
people. The Court was dealing in that case with the occupational
health hazards and diseases afflicting the workmen employed in
asbestos industries. In para 29 of the Report, this Court said:
“29. … It is, therefore, settled law that in public law claim
for compensation is a remedy available under Article 32 or
49
(1996) 3 SCC 212
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(1995) 3 SCC 42
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Article 226 for the enforcement and protection of
fundamental and human rights. … It is a practical and
inexpensive mode of redress available for the contravention
made by the State, its servants, its instrumentalities, a
company or a person in the purported exercise of their
powers and enforcement of the rights claimed either under
the statutes or licence issued under the statute or for the
enforcement of any right or duty under the Constitution or
the law .”
*
51
81.13. In Indian Medical Assn. v. Union of India , the policy of
an Army College of Medical Sciences to admit only those who are
wards of army personnel, based on scores obtained in an entrance
test, was under challenge. The question that came up for
consideration was whether this discriminatory practice by a private
entity would be in violation of Article 15 of the Constitution. This
Court in para 187 stated:
52
“187. Inasmuch as education, pursuant to T.M.A. Pai , is
an occupation under sub-clause ( g ) of clause (1) of Article
19, and it is a service that is offered for a fee that takes care
of all the expenses of the educational institution in
rendering that service, plus a reasonable surplus, and is
offered to all those amongst the general public, who are
otherwise qualified, then such educational institutions
would also be subject to the discipline of clause (2) of
Article 15. In this regard, the purport of the above
exposition of clause (2) of Article 15, when read in the
context of egalitarian jurisprudence inherent in Articles 14,
15, 16 and Article 38, and read with our national
aspirations of establishing a society in which equality of
status and opportunity, and justice, social, economic and
political, would imply that the private sector which offers
such facilities ought not to be conducting their affairs in a
manner which promote existing discriminations and
disadvantages .”
53
81.14. In Society for Unaided Private Schools of Rajasthan , the
constitutionality of Section 12 of the Right of Children to Free and
Compulsory Education Act, 2009 was challenged on the ground
that it violated Articles 19(1)( g ) and 30 of those who had
established schools in the private sector. While upholding the
constitutionality of the provision, which required all schools,
private and State-funded, to reserve 25% of its intake for students
51
(2011) 7 SCC 179
52
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
53
(2012) 6 SCC 1
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from disadvantaged background, this Court held:
“222. The provisions referred to above and other
provisions of international conventions indicate that the
rights have been guaranteed to the children and those rights
carry corresponding State obligations to respect, protect
and fulfil the realisation of children's rights. The obligation
to protect implies the horizontal right which casts an
obligation on the State to see that it is not violated by non-
State actors. For non-State actors to respect children's
rights casts a negative duty of non-violation to protect
children's rights and a positive duty on them to prevent the
violation of children's rights by others, and also to fulfil
children's rights and take measures for progressive
improvement. In other words, in the spheres of non-State
activity there shall be no violation of children's rights .”
54
81.15. In Jeeja Ghosh v. Union of India , the petitioner, a
disabled person suffering from cerebral palsy, was
unceremoniously ordered off a SpiceJet aircraft by the flight crew
on account of the disability. The petition was filed for putting in
place a system to ensure such a violation of human dignity and
inequality is not meted out to similarly placed persons. This Court
observed as follows:
“10. It is submitted by the petitioner that the Union of
India (Respondent 1) has an obligation to ensure that its
citizens are not subject to such arbitrary and humiliating
discrimination. It is a violation of their fundamental rights,
including the right to life, right to equality, right to move
freely throughout the territory of India, and right to practise
their profession. The State has an obligation to ensure that
these rights are protected — particularly for those who are
disabled.”
This Court awarded compensation to the petitioner against the
private Airline on the ground that the airline, though a private
enterprise, ought not to have violated her fundamental right.
81.16. In Zee Telefilms Ltd. v. Union of India , this Court held that
though BCCI does not fall within the purview of the term “ State ”,
it discharges public duties and that therefore even if a remedy
under Article 32 is not available, the aggrieved party can always
seek a remedy before the ordinary courts of law or by way of a writ
petition under Article 226. This Court pointed out that the violator
of a constitutional right could not go scot-free merely because it is
54
(2016) 7 SCC 761
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not a State. The said logic was extended by this Court to a
“Deemed to be University” in Janet Jeyapaul v. SRM
55
University , on the ground that though it is a private university, it
was discharging “public functions”, by imparting education.
82. All the above decisions show that on a case-to-case basis,
this Court applied horizontal effect, considering the nature of the
right violated and the extent of obligation on the part of the
violator. But to enable the courts to have certain basic guidelines in
place, for dealing with such cases, this Court developed a tool
in K.S. Puttaswamy . While affirming the right to privacy as a
fundamental right, this Court laid down the landscape as follows:
“397. Once we have arrived at this understanding of the
nature of fundamental rights, we can dismantle a core
assumption of the Union's argument : that a right must
either be a common law right or a fundamental right . The
only material distinctions between the two classes of
right—of which the nature and content may be the same—
lie in the incidence of the duty to respect the right and in
the forum in which a failure to do so can be
redressed. Common law rights are horizontal in their
operation when they are violated by one's fellow man, he
can be named and proceeded against in an ordinary court
of law. Constitutional and fundamental rights, on the other
hand, provide remedy against the violation of a valued
interest by the “State”, as an abstract entity, whether
through legislation or otherwise, as well as by identifiable
public officials, being individuals clothed with the powers
of the State. It is perfectly possible for an interest to
simultaneously be recognised as a common law right and a
fundamental right. Where the interference with a
recognised interest is by the State or any other like entity
recognised by Article 12, a claim for the violation of a
fundamental right would lie. Where the author of an
identical interference is a non-State actor, an action at
common law would lie in an ordinary court .
398. Privacy has the nature of being both a common law
right as well as a fundamental right. Its content, in both
forms, is identical. All that differs is the incidence of
burden and the forum for enforcement for each form.”
83. Thus, the answer to Question 2 is partly found in the nine-
Judge Bench decision in K.S. Puttaswamy itself. We have seen
from the line of judicial pronouncements listed above that
55
(2015) 16 SCC 530
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56
after A.K. Gopalan v. State of Madras lost its hold, this Court
has expanded the width of Article 21 in several areas such as
health, environment, transportation, education and prisoner's life,
etc. As Vivian Bose, J., put it in a poetic language in S.
57
Krishnan v. State of Madras :
“63. Brush aside for a moment the pettifogging of the
law and forget for the nonce all the learned disputations
about this and that, and “and” or “or”;, or “may” and
“must”. Look past the mere verbiage of the words and
penetrate deep into the heart and spirit of the
Constitution .”
The original thinking of this Court that these rights can be enforced
only against the State, changed over a period of time. The
transformation was from “State” to “Authorities” to
“instrumentalities of State” to “agency of the Government” to
“impregnation with Governmental character” to “enjoyment of
monopoly status conferred by State” to “deep and pervasive
control” [ Ramana Dayaram Shetty v. International Airport
58
Authority of India ] to the “nature of the duties/functions
performed” [ Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani ]. Therefore, we would answer Question 2 as follows:
“A fundamental right under Articles 19/21 can be enforced
even against persons other than the State or its
instrumentalities. ”
(Italics in original; underscoring supplied)
63. The right to privacy is, thus, both a common law right and a
fundamental right. It can, therefore, be enforced by way of judicial
review under Article 226 as well as by way of civil proceedings in a
civil court. We have already noted, earlier, from Binny and other
decisions, that these remedies are available in the alternative.
64. The above passages from Kaushal Kishor also emphasize the
authority of the Court, in a given case, to recompense the victim of the
56
AIR 1950 SC 27
57
AIR 1951 SC 301
58
(1979) 3 SCC 489
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tort of privacy violation by way of monetary compensation against the
tortfeasor.
65. We, therefore, reject Mr. Salwan’s contention that the right to
privacy is solely a fundamental right and is, therefore, available only
against “State” or other authorities under Article 12. The submission
is in the teeth of the law declared by the Supreme Court. We also,
equally, reject Mr. Salwan’s submission that the learned Single Judge
could not have awarded compensation to ABC and, through her, to X.
IV. The plea of disputed issues of fact
66. Mr. Salwan sought to submit that, as disputed questions of fact
are involved, the learned Single Judge ought not to have entertained
the writ petition.
67. The submission has not been made in vacuum. In para E.1 of
the written submission filed by him, Mr. Salwan has identified the
“disputed questions of fact” as “(i) whether right to privacy exists; (ii)
whether by the actions of conduct of the writ petitioner, the writ
petitioner cannot claim rights to privacy; (iii) in case there is a
violation, then what is the remedy of the violation; and (iv) can the
violation be compensated in monetary terms”.
68. The principle that a writ court does not enter into disputed
questions of fact has, with the march of time, thankfully outlived its
welcome. We can do no better than cite the following passages from
the recent judgment of the Supreme Court in A.P. Electrical
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59
Equipment Corpn v. Tahsildar :
“48. Normally, the disputed questions of fact are not
investigated or adjudicated by a writ court while exercising powers
under Article 226 of the Constitution of India. But the mere
existence of the disputed question of fact, by itself, does not take
away the jurisdiction of this writ court in granting appropriate
relief to the petitioner. In a case where the Court is satisfied, like
the one on hand, that the facts are disputed by the State merely to
create a ground for the rejection of the writ petition on the ground
of disputed questions of fact, it is the duty of the writ court to
reject such contention and to investigate the disputed facts and
record its finding if the particular facts of the case, like the one at
hand, was required in the interest of justice.
49. There is nothing in Article 226 of the Constitution to
indicate that the High Court in the proceedings, like the one on
hand, is debarred from holding such an inquiry. The proposition
that a petition under Article 226 must be rejected simply on the
ground that it cannot be decided without determining the disputed
question of fact is not warranted by any provisions of law nor by
any decision of this Court. A rigid application of such proposition
or to treat such proposition as an inflexible rule of law or of
discretion will necessarily make the provisions of Article 226
wholly illusory and ineffective more particularly Section 10(5) and
10(6) of the Act, 1976 respectively. Obviously, the High Court
must avoid such consequences.
50. In the aforesaid context, we may look into the decision of
this Court in the case of State of Orissa v. Dr. (Miss) Binapani
60
Dei . In paragraph 6 at p. 1270 of the said judgment, this Court
has been pleased to hold as follows:—
“Under Art. 226 of the Constitution the High Court is not
precluded from entering upon a decision on questions of
fact raised by the petition. Where an enquiry into
complicated questions of fact arises in a petition under
Art. 226 of the Constitution before the right of an aggrieved
party to obtain relief claimed may be determined. The High
Court may in appropriate cases decline to enter upon that
enquiry and may refer the party claiming relief to a suit.
But the question is one of discretion and not of jurisdiction
of the Court.”
51. This Court in the case of Gunwant Kaur v. Bhatinda
59
2025 SCC OnLine SC 447
60
AIR 1967 SC 1269
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61
Municipality , observed as follows:—
“The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts
were in dispute and what were admitted could only be
determined after an affidavit in reply was filed by the State.
The High Court, however, proceeded to dismiss the petition
in limine. The High Court is not deprived of its jurisdiction
to entertain a petition under Art. 226 merely because in
considering the petitioner's right to relief questions of fact
may fall to be determined. In a petition under Art. 226 the
High Court has jurisdiction to try issues both of fact and
law. Exercise of jurisdiction is, it is true, discretionary, but
the discretion must be exercised on sound judicial
principles. When the petition raises questions of fact of a
complex nature, which may for their determination require
oral evidence to be taken, and on that account the High
Court is of the view that the dispute may not appropriately
be tried in a writ petition, the High Court may decline to
try a petition. Rejection of a petition in limine will normally
be justified, where the High Court is of the view that the
petition is frivolous or because of the nature of the claim
made, dispute sought to be agitated., or that the petition
against the party against whom relief is claimed is not
maintainable or that the dispute raised thereby is such that
it would be inappropriate to try it in the writ jurisdiction,
or for analogous reasons.”
52. In one of the recent pronouncements of this Court in State
62
of U.P. v. Ehsan , this Court observed that:—
“28. We are conscious of the law that existence of an
alternative remedy is not an absolute bar on exercise of
writ jurisdiction. More so, when a writ petition has been
entertained, parties have exchanged their
pleadings/affidavits and the matter has remained pending
for long. In such a situation there must be a sincere effort
to decide the matter on merits and not relegate the writ
petitioner to the alternative remedy, unless there are
compelling reasons for doing so. One such compelling
reason may arise where there is a serious dispute between
the parties on a question of fact and materials/evidence(s)
available on record are insufficient/inconclusive to enable
the Court to come to a definite conclusion .
29. Bearing the aforesaid legal principles in mind, we
61
(1969) 3 SCC 769
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(2024) 14 SCC 269
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would have to consider whether, in the facts of the case, the
High Court ought to have dismissed the third writ petition
of the first respondent and relegate him to a suit as there
existed a serious dispute between the parties regarding
taking of possession. More so, when the High Court, in the
earlier round of litigation, refrained from taking up the
said issue even though it had arisen between the parties .
30. No doubt, in a writ proceeding between the State
and a landholder, the Court can, on the basis of
materials/evidence(s) placed on record, determine whether
possession has been taken or not and while doing so, it may
draw adverse inference against the State where the
statutory mode of taking possession has not been followed
63
[See State of UP v. Hari Ram (supra)]. However, where
possession is stated to have been taken long ago and there
is undue delay on the part of landholder in approaching the
writ court, infraction of the prescribed procedure for taking
possession would not be a determining factor, inasmuch as,
it could be taken that the person for whose benefit the
procedure existed had waived his right thereunder
64
[See State of Assam v. Bhaskar Jyoti Sarma , (supra)]. In
such an event, the factum of actual possession would have
to be determined on the basis of materials/evidence(s)
available on record and not merely by finding fault in the
procedure adopted for taking possession from the land
holder. And if the writ court finds it difficult to determine
such question, either for insufficient/inconclusive
materials/evidence(s) on record or because oral evidence
would also be required to form a definite opinion, it may
relegate the writ petitioner to a suit, if the suit is otherwise
maintainable.”
53. Thus, it would all depend on the nature of the question of
fact. In other words, what is exactly, that the writ court needs to
determine so as to arrive at the right decision. If the only issue, that
revolves around the entire debate is one relating to actual taking
over of the physical possession of the excess land under the
provisions of sub-sections (5) and (6) of Section 10 of the Act,
1976 respectively, then in such circumstances, the writ court has
no other option but to go into the factual aspects and take an
appropriate decision in that regard. The issue of possession, by
itself, will not become a disputed question of fact. If all that has
been said by the State is to be accepted as a gospel truth and
nothing shown by the landowner is to be looked into on the ground
that a writ court cannot go into disputed questions of fact, then the
63
(2013) 4 SCC 280
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(2015) 5 SCC 321
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same may lead to a serious miscarriage of justice.”
(Emphasis entirely in original)
69. We do not see how the issues identified by Mr. Salwan are
“disputed questions of fact” which cannot be decided in a writ
petition. We have, in fact, already answered these questions in the
present judgment; we may, however, reiterate our response. The right
to privacy exists. There is no question of the right to privacy having
been sacrificed by any act committed by ABC, especially as the right
arises out of a duty which vests exclusively in the appellant to ensure
that, when ABC had clearly expressed her disinclination to entertain
the appellant’s visiting crew members, the appellant ought to have
stepped back, as the learned Single Judge has correctly held. Even if,
for the sake of argument, it were to be presumed that, at any stage,
ABC had, in any proceeding, disclosed the identity of X, that would
not provide a carte blanche to the rest of the world to go ahead and do
likewise. The extent to which a citizen desires to enforce her, or his,
right to privacy, is the exclusive prerogative of the citizen, and the
citizen’s decision in that regard has to be respected. To borrow a
famous quote voiced by a well-known thespian from a somewhat
recent Hindi film, “No means no.”
70. Insofar as the remedy is concerned, the learned Single Judge
has correctly awarded compensation, which was well within his power
and jurisdiction.
71. No such disputed questions of fact, therefore, arise in the
present case, as would justify relegating the respondent to a civil suit.
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F. Conclusion
72. Resultantly, the appeal is dismissed .
73. While we would have been inclined to award reparative costs,
given the nature of the present appeal, we decline from doing so. We
direct, however, that the remaining amount, as per the judgment of the
learned Single Judge, be paid by the appellant to ABC or to X within a
period of four weeks from the date of uploading of this judgment on
the website of this Court. Failure to do so would entail interest, on the
said amount, at the rate of 12% p.a. till the date of actual payment.
74. List on 12 August 2026 for reporting compliance.
C. HARI SHANKAR, J.
OM PRAKASH SHUKLA, J.
JULY 01, 2026
aky/ AR
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Tv India Network Limited vs Abc & Ors.