Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 27 JULY, 2022
IN THE MATTER OF:
+ LPA 438/2022 & CM APPLs. 31859/2022, 31861/2022
PRAKASH SINGH ..... Appellant
Through: Mr. Raghav Sharma, Mr. Mukesh
Sharma and Mr. Kunal Tiwari,
Advocates.
versus
UNION OF INDIA & ANR ...... Respondents
Through: Mr. Piyush Beriwal, Senior Panel
Counsel for UOI with Ms. Geetanjali
Tyagi, Govt. Pleader.
Mr. Krishan Karthik, Advocate for R-
2.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
SUBRAMONIUM PRASAD, J.
1. The instant LPA has been preferred under Clause X of the Letters
Patent Act, 1865 read with Section 151 CPC seeking setting aside of the
Order dated 02.06.2022 passed by the Ld. Single Judge in W.P.(C)
9134/2022 whereby the writ petition filed by the Appellant herein was
dismissed.
2. The facts, in brief, leading to the instant appeal are that the
Respondent No.2/Agence France Press is a news agency ( hereinafter
referred to as „news agency‟ ) having its headquarters at Paris, France and
its branch at Janpath, New Delhi. It is stated that the Appellant joined the
Respondent No.2/Agence France Press (AFP) in the year 2001. It is stated
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that in the year 2011, the Appellant applied for the post of Chief
Photographer South-Asia in Agence France Press. It is stated that, thereafter,
the Appellant applied for the post of Chief Photographer for India Region
and on 20.11.2017, the Appellant was appointed as Chief Photographer for
India Region. It is alleged by the Appellant that he was being racially
discriminated and harassed at the Respondent No.2/Agence France Press.
3. The Appellant approached this Court by filing W.P.(C) 9134/2022
with the following prayers:
“a) Issue a Writ/Order/Direction in the nature of
Mandamus directing the Respondent No.2 to not to
discriminate the Petitioner on the basis of race, place
of origin, colour etc. or in any way against the law of
the land.
b) Issue a Writ/Order/Direction in the nature of
Mandamus directing the Respondent No.2 to allow the
Petitioner to enjoy the benefits as are enjoyed by
several others of the Respondent No.2's organisation.
c) Pass any other
Writ(s)/Order(s)/Direction(s)/Relief(s) in favour of the
Petitioner and against the Respondents in the interest
of justice.”
4. A preliminary objection has been raised by the learned counsel
appearing for the Respondents in the instant appeal by stating that the writ
petition is not maintainable against the Respondent No.2/Agence France
Press for the reason that said news agency, against whom reliefs are being
sought, does not come within the definition of State under Article 12 of the
Constitution of India.
5. The Ld. Single Judge vide impugned order dated 02.06.2022 placed
reliance on the judgments of the Hon’ble Supreme Court in Ramakrishna
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Mission & Anr. vs. Kago Kunya & Ors., (2019) 16 SCC 303 and in Binny
Ltd. Vs. Sadasivan, (2005) 6 SCC 657, and held that Respondent
No.2/Agence France Press is not amenable to writ jurisdiction as it does not
have an authority under Article 12 of the Constitution of India and is also
not performing any public duty and, therefore, dismissed the Writ Petition.
6. Learned counsel appearing for the Appellant contends that
Respondent No.2/Agence France Press has been constituted by the Act of
Parliament of France and being a news agency is performing a public
function and is hence amenable to the writ jurisdiction of this Court. He
places reliance on the judgment of this Court in ABC vs. Commissioner of
Police and Ors., passed in W.P.(C) No.12730/2005 dated 05.02.2013 and
Sangamitra Acharya and Ors. vs. State (NCT of Delhi) and Ors., passed in
W.P.(C) No.1804/2017 dated 18.04.2018.
7. Heard learned counsels appearing for the parties and perused the
material on record.
8. A Seven Bench Judge of the Apex Court in Pradeep Kumar Biswas
vs. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 has
elaborated the tests to determine as to whether an entity is an instrumentality
or agency of the State or not and observed as under:
“98. We sum up our conclusions as under:
(1) Simply by holding a legal entity to be an instrumentality
or agency of the State it does not necessarily become an
authority within the meaning of “other authorities” in Article
12. To be an authority, the entity should have been created by a
statute or under a statute and functioning with liability and
obligations to the public. Further, the statute creating the entity
should have vested that entity with power to make law or issue
binding directions amounting to law within the meaning of
Article 13(2) governing its relationship with other people or the
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affairs of other people — their rights, duties, liabilities or other
legal relations. If created under a statute, then there must exist
some other statute conferring on the entity such powers. In
either case, it 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. Such authority would be the State, for,
one who enjoys the powers or privileges of the State must also
be subjected to limitations and obligations of the State. It is this
strong statutory flavour and clear indicia of power —
constitutional or statutory, and its potential or capability to act
to the detriment of fundamental rights of the people, which
makes it an authority; though in a given case, depending on the
facts and circumstances, an authority may also be found to be
an instrumentality or agency of the State and to that extent they
may overlap. Tests 1, 2 and 4 in Ajay Hasia [Ajay
Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981
SCC (L&S) 258] enable determination of governmental
ownership or control. Tests 3, 5 and 6 are “functional” tests.
The propounder of the tests himself has used the words
suggesting relevancy of those tests for finding out if an entity
was instrumentality or agency of the State. Unfortunately
thereafter the tests were considered relevant for testing if an
authority is the State and this fallacy has occurred because of
difference between “instrumentality and agency” of the State
and an “authority” having been lost sight of sub silentio,
unconsciously and undeliberated. In our opinion, and keeping
in view the meaning which “authority” carries, the question
whether an entity is an “authority” cannot be answered by
applying Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi,
(1981) 1 SCC 722 : 1981 SCC (L&S) 258] tests.
(2) The tests laid down in Ajay Hasia case [Ajay
Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981
SCC (L&S) 258] are relevant for the purpose of determining
whether an entity is an instrumentality or agency of the State.
Neither all the tests are required to be answered in the positive
nor a positive answer to one or two tests would suffice. It will
depend upon a combination of one or more of the relevant
factors depending upon the essentiality and overwhelming
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nature of such factors in identifying the real source of
governing power, if need be by removing the mask or piercing
the veil disguising the entity concerned. When an entity has an
independent legal existence, before it is held to be the State, the
person alleging it to be so must satisfy the court of brooding
presence of the Government or deep and pervasive control of
the Government so as to hold it to be an instrumentality or
agency of the State.”
9. None of the tests laid down by the Apex Court in Pradeep Kumar
Biswas (supra) are satisfied in the instant case. Respondent No.2/Agence
France Press has not been created by any law passed in the country nor has it
been entrusted with such functions which can be termed as ‘Governmental’ or
closely associated therewith by being on public importance or being
fundamental to the life of people. Respondent No.2/Agence France Press was
constituted in France and as far as India is concerned, Respondent
No.2/Agence France Press is only a private entity.
10. The writ of mandamus is not generally a remedy against private
wrongs. The scope of writ of mandamus is against the private authority which
might be performing a public duty limited to the enforcement of the public
duty, and this Court cannot interfere with the internal management of a
private body. It is well settled that a writ of mandamus lies only for the
purpose of a public or statutory duty. Writs are issued for the performance of
public duties. Though Article 226 of the Constitution of India is worded in
such a way that a writ of mandamus could be issued even against a private
authority but such private authority must be discharging a public function and
the right sought to be enforced must be a public duty.
11. In the present case, the grievance of the Appellant is that he has been
racially discriminated against and harassed at Respondent No.2/Agence
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France Press. The complaint against the said news agency is not in the course
of its performance of its duty as a news agency. The complaint against
Respondent No.2/Agence France Press, which is a foreign entity, is not
amenable to the writ jurisdiction as there is an employer-employee
relationship which by no jurisdiction can be termed as a public function.
12. In ABC vs. Commissioner of Police and Ors (supra), the petition was
filed by the Petitioner/mother on behalf of her daughter alleging breach of
right to privacy and confidentiality of identity of her daughter under Article
21 of the Constitution of India. It was contended by the Petitioner/mother
therein that the newspaper had revealed the age of her daughter, who was a
victim of sexual abuse as well as, the locality in which she resides, the class
in which she studies, and the occupation of her father. The relief sought for
in that petition by the Petitioner/mother was to restrain various news
agencies like Hindustan Times House and Aaj Tak from publishing the news
about her daughter and she also claimed compensation for breach of right to
privacy and confidentiality of identity of her daughter.
13. The reliance placed by the learned counsel appearing for the Appellant
on ABC vs. Commissioner of Police and Ors (supra) cannot be accepted for
the reason that the said judgment should be interpreted in the facts of that case
only. In that case, the news agencies, which were involved in that case, were
all news agency operating primarily in the country having a huge subscription
base. In that case, the privacy and confidentiality of the daughter of the
Petitioner, who was a victim of sexual abuse, had to be zealously protected.
The said judgment cannot be applied to the facts of the present case. On the
same ground, the reliance placed by the Appellant on Sangamitra Acharya
and Ors. vs. State (NCT of Delhi) and Ors (supra) also cannot be applied to
the facts of the present case for the reason that in the said case, the question
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was regarding interpretation of the relevant provisions of the Mental Health
Act, 1987. In that case, a woman was taken away from the residence of her
music teacher, with whom she had been residing since she turned 18 years of
age, at the behest of her parents and brother, and was admitted in a privately
run mental hospital.
14. The Respondent No.2/Agence France Press cannot be termed as a State
under Article 12 of the Constitution of India and is, therefore, not amenable to
writ jurisdiction. The Respondent No.2/Agence France Press is an entity of
France and even if the contention of the Petitioner is taken into account that
the said news agency has been constituted by the Act of Parliament of France
and is engaged in the activity of public function, it still cannot be termed as a
State under Article 12 of the Constitution of India. In any event, the
complaint, which is sought to be redressed in the instant appeal, is arising out
of the internal working of Respondent No.2/Agence France Press, and the
enforceability is not for any public function.
15. With these observations, the appeal is dismissed, along with pending
application(s), if any.
16. In view of the frivolous petition and appeal filed by the Appellant
herein, which has resulted in wastage of precious judicial time, this Court is
inclined to impose costs of Rs.50,000/- on the Appellant.
SATISH CHANDRA SHARMA, C.J.
SUBRAMONIUM PRASAD, J
JULY 27, 2022
S. Zakir
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