Constitutional Damages A Global Phenomenon

Comparison of Damages under Indian and English Constitution The principle of damages in law makes its first appearance as a substitute for personal relation. In primitive law something of the nature of the Anglo-Saxon wer-gild, or the iroevrt of the lliad, appears to be universal. It makes out with great minuteness the measure of the compensation appropriate to each particular case of personal injury. And there is a resemblance between the legal compensation, as it may be called, and the compensation which an injured person, seeking his own remedy, would be likely to exact for himself. In such a system the two entirely different objects of personal satisfaction and criminal punishment are not clearly separated, and in fact, criminal and civil remedies were administered in the same proceeding. Under modern systems of law, the object of legal damages is to place the injured person as nearly as possible in the situation in which he would have been for the injury; and the controlling principle is that compensation should be determined so far as possible by the actual amount of the loss sustained. In England, civil proceedings for reparation and criminal proceedings for punishment are with few exceptions carefully kept separate. In Scotland, pursuit of the two kinds of remedies in the same proceeding is possible but very rare; but in France and other European states it is lawful and usual in the case of these delicts which are also punishable criminally. In the law of England the two historical systems of common law and equity viewed compensation or reparation from two different points of view. The principle of the common law was that the amount of every injury might be estimated by pecuniary

valuation. The idea was no doubt derived from the old tariffs of were and wite, in which the valuations were elaborate. Until 1858 (Cairns Act) courts of equity had no direct jurisdiction to award damages, and their business was to place the injured party in the actual position to which he was entitled (restitution ad integrum). This difference comes out most clearly in case of breach of contract. The common law, with a few partial exceptions, could do no more than compel the defaulter to make good the loss of the other party, by paying him an ascertained sum of money as damages. Equity, recognizing the fact that complete satisfaction was not in all cases to be obtained by mere money payment, compelled those who broke certain classes of contract specifically to perform them, and in the case of acts of defaults not amounting to breach of contract, on satisfactory proof that a wrong was contemplated, would interfere to prevent it by injunction; while at common law no action could be brought until the injury was accomplished, and then only pecuniary damages could be obtained. Since the judicature acts this distinction has ---- and the appropriate remedy may be awarded in any division of the High Court of Justice9. Nature of Fundamental Rights A fundamental right60 is so called because it is secured not by the ordinary law, but by a fundamental law which, in modern times, is embodied in a written Constitution that cannot be altered by the ordinary process of legislation.61 The celebrated words of Jackson, J. of the American Supreme Court62 will ever inspire those who plead for their human rights to be guaranteed by a written Constitution: foot notes

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and to establish them as legal principles to be applied by the courts. Ones right to life, liberty and prosperity, to free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. A written Constitution can, however, be called fundamental only if it has a superiority over ordinary laws in that (i) (ii) it cannot be changed in the same process as ordinary laws; (ii) the validity of ordinary laws can be tested with reference to the fundamental law; and (iii) (iii) there is an authority (e.g., the Judiciary) to declare unconstitutional an ordinary law which is thus found to be inconsistent with the provisions of the Constitution.63 A legal right is in interest which is protected by law and is enforceable in the courts of law. While an ordinary legal right is protected and enforced by the ordinary law of the land, a fundamental right is one which is protected and guaranteed by the written Constitution of a State.64 These are legal rights in the sense of justifiability; but they are called fundamental because, while ordinary rights may be changed by the Legislature in its ordinary process of legislation, a fundamental right, being guaranteed by the Constitution, cannot be altered by any process shorter than that required for amending the Constitution. Nor can it be suspended or abridged except in the manner laid down in the Constitution itself.

The English people maintain that human rights can also be maintained by ordinary law under their system of Rule of Law.65 But when they are enforced by a Constitution, which cannot be changed like an ordinary law, except through the process of constitutional amendment, they are called Fundamental Rights. While an ordinary legal right appertains to private law and denotes the relationship between two private citizens,66 a fundamental right appertains to public law and is a right which individual possesses against the State itself. The party bound by a fundamental right is the State. The distinction was thus explained by the American Supreme Court: 67 These rights (i.e., those guaranteed by a Bill of Rights) are different from concrete rights which a man have to a specific chattel or to a piece of land or to the performance by another of a particular contract, or to damages for a particular wrong, all of which may be invaded by individuals; they are the capacity, power or privilege of having and enjoying those concrete rights and of maintaining them in the courts, which capacity, power or privilege can only be invaded by the State.68 Conversely, a right cannot be said to be fundamental69 if it is not enforceable against the State by the Courts. This means that a Court which can enforce a fundamental right must possess the power of judicial review, i.e., the power to invalidate any act of the State (including that of the Legislature) which contravenes a fundamental right.70 In U.K., it is for this reason that in England though an individual has rights not only against other individuals but also against the State (e.g., under the Crown Proceedings Act, 1947), 71 the latter rights cannot be said to be fundamental inasmuch as if the Legislature

overrides any of them, no Court can declare such law as void. A Court must give effect to a law passed by the British Parliament, whatever be its terms. It follows that, while ordinary legal rights are available against private individuals, a fundamental right is available only against the State72 and not for the violation of any such right by a private individual,73 except where the State supports such private action74. Fundamental Rights being guaranteed by the fundamental law of the land, no organ of the State-executive, legislative or judicial-can act in contravention of such rights,75 and any State act which is repugnant to such rights must be void.76 Once the Constitution is regarded as the supreme law of the land and the powers of all the other organs of government are considered to be limited by its provisions, it follows that not only the Legislature but also the Executive and all administrative authorities are equally limited by its provisions, so that any legislative, executive or administrative act which contravenes the provisions of the Constitution must, similarly, be void.77 No express provision, such as that contained in article 13 of the Indian Constitution, is necessary to achieve this result.78 In fact, a written Constitution itself operates as a limitation on all constituted powers79 where there is a machinery for its enforcement, by way of judicial review.80 In India, after some wavering, it is now established that Fundamental Rights (included in Part III of the Constitution) constitute limitations on legislative competence, 81 so that they cannot be waived by an individual.82 Nor can he be stopped from enforcing them.83 Thus the right to be considered by the Departmental Promotion Committee has also been held and

included as a fundamental right guaranteed under article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration.84 In fact, no right can be said to be fundamental if it can be overridden by the Legislature,85 and if there is no authority under the constitution to pronounce a law to be invalid when it contravenes or violates such right directly or indirectly. Both in the U.S.A. 86 and in India,87 this authority is the Judiciary. As was observed by J. Shastri in Gopalan v. State of Madras88 the insertion of a declaration of Fundamental Right in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (Article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (Article 32) is a clear and emphatic indication that these rights are to be paramount to ordinary State-made laws.89 Thus, distinction is made between the rights included in Part III and those included in Part IV of the Indian Constitution. The former are justiciable while the latter are not [Art. 37]. That is why the former are termed Fundamental Rights while the latter are termed Directive Principles. The Directives, if implemented by the State, will confer some benefits on the individual, e.g., living wage, decent standard of life [Art. 43} and the like, but nobody can compel the State to implement such Directives by an action in a court of law. A special feature of Fundamental Rights under the Indian Constitution is that not only the rights themselves, but the constitutional remedy to move the Supreme Court for their enforcement is also guaranteed as a fundamental right [Art. 32], as a result of which this remedy and the power of judicial review conferred on the Supreme Court in his behalf cannot be taken

away by legislation90 or by anything short of amendment of the constitution. It is a substantive right to the aggrieved individual, so that even a law which renders nugatory or illusory the exercise of the Supreme Courts powers under Art. 32 is void,91 except where the Constitution itself shields a law from challenge on the ground of contravention of Fundamental Rights, e.g., articles 31(5), 31 A- 31 C. Because the remedy under article 32 is guaranteed by the Constitution, a duty is imposed on the Supreme Court to protect the Fundamental Rights- to perform the role of a sentinel on the qui vive.92 In the ultimate analysis, it is this constitutional remedy- which is itself guaranteed as a fundamental right, namely to move the Supreme Court for an appropriate writ or order to enforce a fundamental right under article 32 Which distinguishes a fundamental right from other rights. There are indeed a number of rights created by the Constitution itself which are outside Part III of the Constitution. These must be called constitutional rights as distinguished from legal rights inasmuch as they are created by the Constitution and not by ordinary law, e.g., the right not to be subjected to taxation without the authority of law [article 265], the right to property [article 300A1], the right not to be subjected to law interfering with the freedom of trade [article 301] or to unreasonable restrictions imposed by a State Legislature [article 304(b)], and the right of a Government servant not to be dismissed by an authority subordinate to that by which he was appointed or without an inquiry on the charges levelled against him [article 311]. These constitutional rights are not Fundamental Rights but are analogous to Fundamental Rights on the following points-

(a) These rights constitute a limitation on legislative power in the same way as the Fundamental Rights in Part III,2 and any law made in contravention thereof shall be void, in the same manner.3 (b) Since these rights are provisions engrafted by the Constitution, they cannot be taken away without an amendment of the Constitution, as no exception in that behalf has been made by the Constitution.4 (c) The foregoing provisions also create justiciable rights,5 and the individual aggrieved may enforce them in a court of law, with this difference that, not being a fundamental right,6 a right derived from any provision outside Part III cannot be enforced by a petition under article 32 before the Supreme Court;7 the remedy is a suit or a petition under article 226 before a High Court.8 In service matters, the remedy now is before an Administrative Tribunal in place of the High Court or the Civil Courts [article 323A]. (d) The majority in the Full Court judgment in Keshavanandas case9 overrules Golak Nath,10 and restores the pre-Golak Nath view that a fundamental right may be amended in the same way under article 368 as any other provision of the Constitution. The distinction between a fundamental right and any other right derived from a provision outside Part III of our Constitution is thus very slender, namely, that only Fundamental Rights included in Part III are enforceable by a petition before the Supreme Court under article 32. 11 One notable distinction between a human right and a fundamental right or freedom is that while a human right, as it is understood in the Preamble of the Universal Declaration, 1948, is confined to natural persons as members of the human family, a

Constitution may guarantee Fundamental Rights, some of which may be available not only to natural but also to artificial persons.12 Again, some Constitutions do not extend certain Fundamental Rights to all human beings but confine them to citizens, e.g., articles 15, 16(2), 18(2), 19, 29, 30 of the Indian Constitution.

Comparison of Public Interest Litigation with other countries constitution The foremost amongst these recent trends is the doctrine which, originating in U.S.A., 13 has been infused into India through the U.K., viz., the doctrine of public interest litigation. While a full treatment of the subject must be postponed till the chapter on judicial remedies, it would be useful to notice the principles underlying this engine of judicial activism, the potentialities of which have not yet been foreclosed. In these countries, the orthodox view that had been prevailing was that a person who sought to enforce the Fundamental Rights through a Court must establish that he had been personally aggrieved or affected by the State act complained of.14

13. In the U.S.A., while the doctrine of generalized grievances has been rejected by the Supreme Court, the doctrine of standing has been diluted by gradually expanding the test of personal stake or injury [cf. U.S. v. Scrap, (1973) 412 U.S. 669 (689); Baker v. Carr; (1962) 369 U.S. 186 (206-8); Warth v. Seldin, (1975) 422 U.S. 490 (511); Gladstone kealtors v. Bellwood, (1979) 441 U.S. 91 (111-12)],- leading to cases where a third party was allowed to assert rights

of a party who was unable to assert his own rights owing to practical difficulties [Craig v. Boren, (1976) 429 U.S. 190 (193-94); U.S. Commn. v. Geraghty, (1980) 445 U.S. 388 (401, 404-6); leading, further, to the interest of society at large to protect constitutionally protected speech [Broadrick v. Oklahoma, (1973) 413 U.S. 601 (612); Bates v. State Bar, (1977) 433 U.S. 350 (380); see f.n. 32, below]. 14. U.S. v. Salvucci, (1979) 448 U.S. 83 (85-86); U.S. v. James, (196) 362 U.S. 17; Hatch v. Reardon, (1907) 204 U.S. 152 (160); Tilestone v. Ullman, (1943) 318 U.S. 490 (495); R. v. Lewisham Guardians, (1897) 1 Q.B. 498; Chiranjit v. Union of India, (1950) SCR 869; Rao Bahadur v. State of U.P., (1953) SCR 1188 (1202). While in U.K., the foregoing rule is known as the rule of locus standi or standing of the Petitioner before the court, who complains of a violation of his human right. While this rule still applies in the generality of cases, an exception has been introduced in the case of laws which affect the public in generality, but the persons who are directly affected are not likely to come to Court to assert their rights. In such cases, an association or an individual has been allowed to fight for the public cause and challenge the constitutionality of the law or order, through the Petitioner may not be able to show that he has been directly injured or affected by it.15 He may move the Court for enforcement of a public right provided he is not a mere busybody, but a person having a reasonable concern with the matter to which his application relates.16 The doctrine of public interest litigation, so evolved, has been describe by the house of Lords itself as a change in legal policy,- even though the change started by the modest process of liberalizing the meaning of the expression person aggrieved17 or sufficient interest18

In U.S.A., it has been held that where a fundamental right guaranteed by the First Amendment to the Constitution is clearly and directly violated by a statute, society itself has an interest to challenge the statute to maintain the guaranteed right, so that in such a case a person may be allowed to move the Court even though the applicant himself has not been

15. Blackburn v. A.G., (1971) 2 All ER 1830 (1833) C.A.; R.v. Greater L.C.C., (1976) 3 All ER 184 (C.A.). 16. I.R.C. v. National Fed., (1981) 2 All ER 93 (104, 116) (HL); R.v.H.M,. Treasury; (1985) 1 All ER 589 (595) C.A. 17. A.G. Gambia v. Pierre, (1961) AC 617. 18. R. v. H.M. Treasury, (1985) 1 All ER 589 (595) C.A.

directly affected by the statute.19 While in India, the principle behind this doctrine was thus explained by the Indian Supreme Court: 20 Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability on socially or economically

disadvantaged position, unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under article 226 and in case of breach of any fundamental right of such person or class of persons, in this court under article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.21 In this new era of public interest litigation, the Court has not only done away with

19. Secy. of State v. Munson, (1984) 467 U.S. 947 (956-57); Schaumberg v. Citizens, (1980) 444 U.S. 620 (634). 20. Gupta v. Union of India, AIR 1982 SC 149 (para: 17); Nakara v. Union of India, AIR 1983 SC 130 (para. 64). 21. S.P. Gupta v. Union of India, AIR 1982 SC 149 (para: 17); Nakara v. Union of India, AIR 1983 SC 130 (para. 64). the orthodox bar of locus standi (i.e., the status of the litigant),22 but also the law of procedure, holding that in this jurisdiction the Court can be moved even by a letter23 the ordinary process of a petition supported by affidavit. As to rules of evidence, again, enter into disputed questions of fact or take evidence beyond affidavit. But in a public interest case, the Court may appoint a commission to gather evidence, where the poor and the disadvantaged people who are directly affected are not in a position to place before the Court the relevant materials.24

The Supreme Court has taken the provision in article 32 to impose on itself a constitutional obligation
25

to protect the fundamental rights of the people;

26

and it is in

realization of this constitutional obligation that this Court has innovated new methods and rights, particularly in the case of the poor and the disadvantaged who are denied their basic

22. Cf. Ferlilizer Corpn. v Union of India, A. 1981 SC 344 (para. 48-50); Bar Council v. Dabholkar, A. 1975 SC 2098 (para. 52); see also A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531; DAV College v. State of Punjab, (1971) 2 SCC 261 : AIR 1971 SC 1731; Subhash Kumar V. State of Bihar, AIR 1991 SC 420 (para 7-8) : (1991) 1 SCC 598; Kshetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060 : (1990) 4 SCC 449; Gaurav Jain v. Union of India. (1997) 8 SCC 114 (para 114) : AIR 1997 SC 3021. 23. Bandhua Mukti Morcha v. Union of India, A. 1984 SC 802. 24. Bandhua Mukti Morcha v. Union of India, A. 1984 SC 802. 25. Bandhua Mukti Morcha v. Union of India, A. 1984 SC 802. 26. Mehta v. Union of India, (1987) 1 SCC 395 (405). [Such duty of Courts has been evoled in Lesotho, from a statutory guarantee of human rights: Law Soc. V. Prime Minister, (1986) LRC (Const.) 481 (495) see also Min. v. Bickle, (1985) LRC 755 (766) (Zimbabwe)].

human rights and to whom freedom and liberty have no meaning.27 One of these new

strategies for safeguarding the human rights in respect of the weaker section of the community is the doctrine of public interest litigation, which we have just seen. The Court before which such a trial pending has authority to grant permissions to press, after weighing the competing interest between right of the press and right of authorities prohibiting such an interview.28 The doctrine of public interest litigation has been applied in New Zealand.29 In Canada, the Supreme Court is progressing gradually towards the public interest doctrine,
30

the latest view 31 being that may person may challenge the validity of a law for contravention of a Charter right, if he has a genuine interest as a citizen in the validity of the legislation, and there is no other reasonable and effective manner in which the issue may be brought before the Court,
32

even though he may not be directly affected by the legislation. Not only have the Courts expanded the jurisdiction to enforce human rights by innovating

the doctrine of public interest as regards the Petitioner, the category of the Respondent has similarly been enlarged by applying the doctrine of State action. 27. State, through Supdt., Central Jail, New Delhi v. Charulata Joshi and another, AIR 1999 SC 1379. 28. Finnigan V. N.Z.R.F.U., (1986) LRC (Const.) 877 (844); On the other hand, in Nigeria, the Supreme Court has refused to introduce any modern innovation of the doctrine of locus standi on power to the determination of any question as to the civil rights and obligations of the litigant [Thomas v. Olufosoye, (1987) LRC (Const.) 659 (670,672,679) Nigeria]. 29. Thorson v. A.G., (1975) :SCR 18; Nova Scotia V. McNail, (1976) 2 SCR 265. 30. Min. of Justice v. Borowski, (1981) 2 SCR 575 (Can.).

31. Min. of Justice v. Borowski, (1981) 2 SCR 575 (Can.) 32. Lugar v. Edmondson, (1982) 457 U.S.922. Suffice it to say for the present that the doctrine of State action had its origin in the U.S.A, nearly a century after the adoption of its Constitution while the First Amendment (1791) was couched in the form of a prohibition against the Legislature alone (by using the word Congress), the 14th Amendment adopted in 1869, extended the prohibition in the due process33 and equal protection,
34

clauses to the State. In interpreting the word State in

these clauses, the Supreme Court first held that it included all the organs and acts of the Statelegislative, executive and judicial.35 Before long, however, it was realized that in order to be effective, the Fundamental Rights should be enforced not only against the acts of the officers of the State but also its agents.36 An agent was a person who acted in the name of and for the State or is clothed with the powers of the State,37 or endowed with governmental functions.38 Gradually, the doctrine has come to be applied even to acts of a private person or body,39 where its action is supported by the Government even without legislative sanction or in abuse of its legislative

33. Strauder v. W. Virginia, (1879) 100 U.S. 303. 34. Ibid. 35. Ex parts Virginia, (1880) 100 U.S. 339 (347); Pennsylvania v. Board of Trusta, (1957) 353 U.S. 230.

36. Ex parts Virginia, (1880) 100 U.S. 339 (347); Pennsylvania v. Board of Trusta, (1957) 353 U.S. 230; Home Telephone Co. v. Los Angeles, (1913) 227 U.S. 278 (286); Steele v. L.N.R., (1944) 323 U.S. 192. 37. Evans v. Newton, (1966) 382 U.S. 296; Blum v. Yaretsky, (1982) 457 U.S. 991 (1011). 38. Cf. Pruneyyard Shopping Centre v. robins, (1980) 447 U.S, 74 (85-87) 39. U.S. v. Classic, (1941) 313 U.S. 299; Screws v. U.S., (1945) 325 U.S. 91.

authority; 40 or when the state has become involved in such private action; 41 such as joint participation of state officials with a private person in violating the petitioners rights;42 or when the State has coerced or encouraged, overtly or covertly, the private act complained of.43 Even a State constitutional provision has been regarded as the support of a law.44 The test to be applied is whether the infringement of the Petitioners right is fairly attributable to the State.45 The foregoing principles have been applied to the guarantee against discrimination in the matter of election, in the 15th Amendment (1870) as well.46 In India, the doctrine of State action has a wider application than in the U.S.A. because of the difference in the text of the Constitution. The essence of the doctrine is that the State cannot get rid of constitutional limitations or restraints by simply delegating its powers or functions to some private

40. Reitman v. Mulkey, (1967) 387 U.S. 369; Burton v. E.P.A., (1961) 391 U.S. 715; Sniadach v. N.G.F., (1975) 419 U.S. 601. 41. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004). 42. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004). 43. Cf. Pruneyard Shopping Centre v. Robins, (1980) 447 U.S. 74 (85-87). 44. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Cf Rendell-Baker v. Kohn, Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yetsky, ar (1982) 457 U.S. 991 (1004); (1982) 457 U.S. 830 (838). 45. Smith v. Allwright, (1944) 321 U.S. 649; Terry v. Adams, (1953) 345 U.S. 461. 46. Evans v. Newton, (1966) 382 U.S. 296. individual or group; hence, since such a person acts as the agent or the instrumentality of the State, he must be subject to the same limitations, such as the Fundamental Rights, that the Constitution impose upon the State itself.47 The doctrine would reach not only an agent of the State, but even lessee from the agent, if the involvement or participation of the State (even by inaction) in the lessees acts is established.48 But in the U.S.A., the doctrine of State action was originally confined to the application of the 14th and 15th Amendments. The first Amendment rights, e.g., freedom of speech, assembly or religion, were held to be available only against infringement by the Government, 49 and not by

agents of the Government, until the First amendment (which is addressed to the Congress) came to be enforced against the States through the 14th Amendment.50 In short, action against a creature of the State for infringement of a First Amendment right came to be maintainable only where such infringement also violated the

47. Burton v. W.P.A., (1961) 365 U.S. 715. 48. Cf Rendell-Baker v. Kohn,. (1982) 457 U.S. 830 (838). 49. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639); Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum. Bd. Of Education v, (1948) 333 U.S. 203. 50. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639); Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum v. Bd. Of Education, (1948) 333 U.S. 203. due process51 or the equal protection guarantee of the 14th Amendment.52 It is through this indirect process that the First Amendment rights have been enforced against a Board of Education; like. In the federal area also, the First Amendment rights have been applied against agents of the government through the due process clause of the fifth Amendment.56
53

or the trustee of a private testator;

54

a society organizing a public fair,

55

and the

In India, however, the Supreme Court had an easier task in introducing the doctrine of State action because (i) most of the Fundamental Rights included in Part III of the Constitution are addressed to the State, and (ii) Part III starts with the definition of the word State in article 12, which includes other authorities. By a liberal interpretation of this word authority, the Court has made the Fundamental Rights enforceable against numerous private persons or bodies, when they might be regarded as agency or instrumentality of the State, by applying certain tests laid down by the Court. These tests, which will be more fully discussed hereafter, include the following:

51. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004). 52. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639); Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum v. Bd. Of Education, (1948) 333 U.S. 203. 53. Evans v. Newton, (1966) 382 U.S. 296. 54. Heffron v. Iskcon, (1981) 452 U.S. 640 (642). 55. Liberman v. Schesventer, (1978) 447 F. Supp. 1355; Iskcon v. Schmidt, (1981) 523 F. Supp. 1303. 56. Rajasthan S.E. Bd. V. Mohan, A. 1967 SC 1856.
(a)

Where it is clothed with statutory power.57

(b)

Where the Government exercises control over the management and policies of the private body.58

(c)
(d)

Where it has been granted monopoly of a business by the State.59 Where it exercises functions which would normally be performed by the State.60 Where the authority has been set up for administering a statute,61 or where statutory duties are imposed on it.62

(e)

(f)

When the company is owned or substantially given financial assistance by the Government.63

57.Sukhdev v. Bhagatram, A. 1975 SC 1331; Jaitla v. Commr., (1985) 1 S.L.R. 505 (para.8) SC. 58. C.I.W.C. v. Brojo, A. 1986 SC 1371; (paras. 23, 24, 69); Ramana v. I.A.A.I., A. 1979 SC 1628 (paras. 15-16); Ajoy v. Khalid, A. 1981 SC 487 (paras. 7, 11, 15); see also Housing Board of Haryana v. Haryana Housing Board Employees Union, (1996) 1 SCC 95 : AIR 1996 SC 434; Calcutta State Transport Corporataion v. Commissioner of Income-tax, West Bengal, (1996) 8 SCC 758; Food Corporation of India Workers Union v. Food Corporation of India, (1996) 9 SCC 439; U.P. State Cooperative Land Development Bank Ltd. V. Chandra Bhan Dubey, (1999) 1 SCC 741 : AIR 1999 SC 753. 59. Ramana v. I.A.A.I., A. 1979 Sc 1628 (paras. 15-16); Ajoy v. Khalid, A. 1981 SC 487 (paras,. 7, 11,15). 60. S.R.T.C. v. Devraj, A. 1976 SC 1027 (paras. 14); Ujjam Bai v. State of U.P., (1963) 1 SCR 778 (969). 61. L.I.C. v. Escorts, A. 1986 SC 1370 (para. 100). 62. Workmen v. F.C.I., A. 1986 SC 670 (paras. 16, 17).

63. Mehta v. Union of India, A. 1987 SC 1086 (para.29) C.B. On the other hand, a recent Constitution Bench decision64 has made an obiter that all American decisions under the State action doctrine may not be applied to India, owing to different social conditions, and even where a private corporation becomes an agency of the State under article 12, its private activities which have no social impact may not be subject to the constitutional limitation of Fundamental Rights. Since such reservation has been introduced for the first time, we should await its further development by the Court to see whether this ride might operate as a retrograde step in the development of human rights. It should be noted, in the present context, that the agency of State action doctrine has been applied in several cases, 65 in Sri Lanka. In Canada, the question has not yet been authoritatively settled. In the provincial Courts, the prevailing view is that of S.32 (1) (b) of the Legislature and the Government, and not against private persons or authorities even when they are exercising statutory powers.66 There are, however cases where it has been held that authorities set up by statute, e.g., a municipality, 67 a hospital,68 or authorities which are controlled by the government,69

64. Wijetunga v. Ins. Corpn., (1985) LRC (Const.) 333 (338) ff.; Wijeratne v. Peoples Bank, (1985) LRC (Const.) 349 (355) ff.; Gunarantne v. Peoples Bank, (1987) LRC (Const.) 383. 65. Kohn v. Globerman, (1986) 27 DLR (4th) 583 (598-99) (Man.); Re Blainey, (1986) 26 DLR (4th) 728 (Ont.); Re Bhindi, (1985) 20 DLR (4th) 386 (B.C.).

66. Re Hardie, (1985) 24 DLR (4th) 257 (267) (B.C.); Re McCutcneon, (1983) 147 DLR (3d) 193 (O.R.). 67. Vancouver Hospital v. Stoffman, (1985) 23 DLR (4th) 146 (151) (B.C.). 68. Cf. Bancroft v University of Toronto, (1986) 24 DLR (4th) 620 (626) (Ont.). 69. Black v. Law Soc., (1983) 144 DLR (3d) 439 (445). or those which have the power to issue regulations having the force of law,70 would come within the purview of section 32 (1)(b). Awarding compensation in writ proceeding
In so expanding its writ jurisdiction, the Indian Supreme Court has moulded the prerogative writs to such an extent as could never have been dreamt of by the judges in England under the common law. Thus, in a proceeding under article 32 of the Indian Constitution, for the enforcement of human rights, the Supreme Court has(a) awarded compensation to the person aggrieved by the infringement of the fundamental right

complained of.158 and that even in a public interest litigation; 159 (b) in what might at best; be labeled as a suggestion or observation, issued a direction or

command to the government, thus making a judicial encroachment upon the function of administration for which the government is responsible to the Legislature, e.g.,(i) (ii) To create a Special Dowry Cell to investigate into dowry death.160 To submit a scheme for construction of house for government servants who were sought to

displaced as a result of the government policy to de-requisitioned premises.161

(iii)

To direct the State government to raise the daily diet allocation, to supply adequate drinking

water, mattresses and blankets, medical service etc. to patients in the government mental hospital.162 Object of the writ in USA- The object of this writ is a speedy release, by judicial order of the

persons who are illegally restrained of their liberty. It also lies where a party is held by some person
when another is entitled to custody, in which the court is empowered to deliver him from unlawful imprisonment by committing him to the custody of the person who is by law entitled thereof. The transfer of custody is applicable in case of infants and insane persons. The purpose of the writ is not to punish for wrongful acts of restraining the detenue or to afford him redress for his illegal detention. Object and importance in India-

Habeas corpus is a writ in nature of an order calling upon the person who has detained to produce the latter before the court, in order to let the court know on what grounds he has been confined and to set him free if there is no legal justification of imprisonment. Its object was not the punishment of the wrong doer but to secure release of prisoner without which he may not be in a position to pursue his legal remedies against the wrong-doer. It is procedural writ and its proceeding is summary. Article 21 of the constitution declared that no person shall be deprived of life and liberty except in accordance with procedure established by law. The writ of habeas corpus provides a prompt and effective remedy against illegal restraints. The principal aim is to provide for a swift judicial review of alleged unlawful restraint on liberty. In Halsburys laws of England (4th edn.), it is stated in any matter involving the liberty of the subject the action of Crown or its ministers or officials is subject to the supervision and control of judges on habeas corpus. The judges owe a duty to safeguard the liberty of subject not only to subjects of the Crown and entitled to resort to the court to secure any rights which they may have, and this whether they are alien friends or alien enemies. It is this fact which

makes the prerogative writ of highest constitutional importance, it being a remedy available to the lowliest subject against the most powerful. validity of acts of the executive and, to test the legality of detention under emergency legislation. The primary object of the writ is immediate determination of the right of applicants freedom-that was its substance and its end. The writ has been described as a writ of right which is allowed ex debito justified. Though a writ of right which is not writ of course, the applicant must show a prima facie case, and the return is not good and sufficient, he is entitled to this writ as of right. Thus writ can also be issued in case of counterfeit release. It can be applied when there is pretended ignorance of the place of custody or identity of custodian. Lord Waston observes: The remedy of habeas corpus is, in my opinion, intended to facilitate the release of persons actually detained in unlawful custody; and was not meant to afford the means of inflicting penalties upon those persons by whom they were at some time or other illegally detained. Accordingly the writ invariably sets forth that the individually whose release is sought whether adult or infant, is taken and detained in custody of the person to whom it is addressed and rightly so, because it is the fact of detention and nothing else which gives the court its jurisdiction. The object of the writ is not to punish previous illegality but to release from present illegal detention. It can not be used for punishing the respondent or for affording reparation or redress to the person wrong Judicial review of administrative action The most remarkable recent development in all advanced countries has been the expansion of judicial control over the administrative process, particularly in cases of violation of

individual rights.13 The virtual obliteration of the distinction between administrative and quasijudicial decisions14 deserves the foremost mention. Of course, this does not mean that all the requirements of natural justice are to be imported to purely administrative decisions made according to the subjective discretion of the authority, but only the duty to act fairly.15 Even in U.K., it has come to be realized that in the modern world, judicial review is needed even over purely executive action if the rule of law is to be maintained and human rights have to be effectively safeguarded. Thus, the plea that the impugned act is an exercise of the non-statutory, discretionary or prerogative power of the Crown16 is no longer of avail against its judicial review on grounds of illegality, irrationality, impropriety, or the like, provided only the subject-matter is such as is capable of adjudication.17 In the words of Lord Roskill18If the executive in pursuance of statutory power does an act affecting the rights of the citizen, it is beyond question that in principle the manner of the exercise of that power may today be challenged on one or more of the three grounds . if the executive instead of acting under a statutory power acts under a prerogative power so as to affect the rights of the citizen, to talk of that act as of the act of the Sovereign savours of the archaism of past centuries (1033).19 The age-old distinction between administrative and quasi-judicial functions has thus been blurred by extending the arms of judicial review over administrative acts whenever they affect the rights of an individual, such as right to property, profession or calling.20

In all such cases, the Court will interfere if the administrative authority fails to act fairly.21 It extends even to withdrawal of benefits, subject, of course, to questions of national security. In India, the earlier decisions22 of the Supreme Court adhered to the traditional view that the rules of natural justice could be invoked only if an administrative proceeding could be labelled as quasi-judicial. But since 1970,23 the court has virtually abolished this distinction and come to hold that, whenever an administrative decision or order is likely to inflict civil consequences upon an individual, the administrative authority must observe the condition of fairness which is an ingredient of natural justice 24. Of course, civil consequences is a vague expression, but it would certainly include the infringement of human rights. The Court would, therefore, strike down an administrative decision on the ground of unfairness or arbitrariness where the decision affects the following rights of the Petitioner: (a) Right to equality.25 (b) Personal liberty.26 (c) Right to profession27 or business.28 (d) Right to education.29 Of course, in exercising its power of judicial review, the Court is concerned with the correctness not of the decision itself but of the decision-making process.30

In Canada, similarly, a duty to act fairly is coming to be applied to all administrative decisions which affect an individuals rights, e.g., to employment,31 to business,32 to reputation.33 The test is: would the decision or finding of the authority affect the right of an individual? Once this test is satisfied, the duty to act fairly would extend even to authorities whose function is only to inquire of make recommendations to be Government.35 The same trend is to be seen in New Zealand,36 Hong Kong,37 Trinidad and Tobago.38 FOOT NOTES In Australia,39 it has been held that, in the absence of statutory requirement, an administrative authority has no obligation to state reasons, even though his decision affects an individuals rights. But the proceeding must be otherwise fair even in the case of termination of a probationary appointment.40 Attach with HABEUS CORPUS In U.S.A., it is established that in a criminal case, the accused is entitled to have a collateral review of his conviction on the ground of violation of his Fundamental Rights, in an application for habeas corpus, even where he did not appeal from his conviction26 or did not take the constitutional question in that appeal;27 for example: (i) The guarantee of due process was violated because the Court threw the burden of proving his defence or innocence on the accused; the conviction was based solely on coerced or involuntary confession;28 or was prompted by mob domination;29 or was otherwise tainted by unfairness;30 or

(ii) (iii)

That he was denied the right to counsel under the 6th Amendment;31 or That equal protection (14th Amendment) was violated by a discriminatory selection of the Jury.32

As regards habeas corpus, the Indian Supreme Court, in holding that a judicial decision cannot be reviewed collaterally even when it is contrary to the Constitution, seems to have been influenced by the English common law doctrine33 that no proceeding other than appeal or revision lay to challenge the decision of a Court of law and that, accordingly, a habeas proceeding did not lie to set aside a conviction by a Court having jurisdiction over the accused.34 There are two important considerations for which this principle could not be imported into India: (a) Even in England, it is established that the decision of an inferior Court may be quashed in a proceeding for habeas corpus if it is patently without jurisdiction.35 It is noticeable that this proposition has been admitted by the Indian Supreme Court,36 viz., that an order of the Criminal Court, such as an order of remand37 or a conviction, cannot be challenged by a petition for habeas corpus except where the order appears to be prima facie without jurisdiction or wholly illegal. Such an order without jurisdiction for instance, would be an order of remand which is not authorized by any law,38 or which plainly violates the terms of section 167(2)39. S. 309(2),40 Cr. P.C.,- in which case, it would also be violative of article 21 of the Constitution.

(b) There are no Fundamental Rights in England. As stated earlier, the violation of a fundamental right itself would go to the roof of the jurisdiction of the Criminal Court, in India. Certiorari In the U.S.A., certiorari is a collateral41 proceeding by which an unconstitutional conviction can be challenged, apart from appeal. Of course, while appeal lies as of right, certiorari is discretionary, and is granted only on showing a miscarriage of justice or actual prejudice. Subject to this condition, a conviction would be set aside, in a proceeding for certiorari, on the ground ofViolation of the right against unreasonable search and seizure and seizure (4th Amendment).42 Violation of the right against self-incrimination (5th Amendment).43 Violation of immunity from double jeopardy (5th Amendment).44 Violation of the right to counsel (6th and 14th Amendments).45 Violation of the right to a speedy trial (6th Amendment).46 Violation of due process (5th and 14th Amendments).47 Violation of the 1st Amendment rights.48

Certiorari would also lie if habeas corpus has been wrongly refused where a person had been punished in contravention of due process.49 Certiorari has been granted to reverse even civil judgments on the ground ofViolation of freedom of speech (1st Amendment).50 Violation of due process (14th Amendment).51 Violation of equal protection (14th Amendment).52 In India, as regards certiorari, the majority in Nareshs case (para. 63)53 acted upon the proposition stated by Halsbury (Laws of England, 3rd ed., Vol. II, pp. 129-30): Certiorari does not lie to quash judgment of inferior Courts of civil jurisdiction. This statement has however, been corrected in the 1965 Supplement of the 3rd edition, and the correct law as stated in the 4th edition is as followsProhibition as well as certiorari [Vol.I, paras. 142, 143, 148] will be issued to restrain any inferior Court, civil54 or criminal, or to quash its decisions so that it may not act beyond its jurisdiction. The positive statement of Halsbury is as follows: Certiorari does lie to quash orders of inferior Courts of civil jurisdiction which have acted without jurisdiction. To hold otherwise would mean that an inferior Courts could make any order it pleased without question55 where no appeal was provided by statute

Following the judgment in Nareshs case,56 the High Courts57 have come to the conclusion that, as a rule, no judicial order by a Criminal Court of competent jurisdiction can be challenged by any writ proceeding (whether habeas corpus or certiorari), even if such order violates the Fundamental right of the petitioner under articles 14, 19 or 21.58 Prohibition attach with prohibition

In U.S.A., even Prohibition59 or a declaration and injunction60 would issue to bar a trial which would violate a fundamental right e.g., the guarantee against double jeopardy (5th & 14th Amendments);61 or the freedom of expression.62 There is no reason why, in India, the accused shall have to suffer the agony of a criminal trial, to raise ground in appeal against his conviction (para. 101).63 Dominica Jamaica As regards the availability of collateral proceedings to enforce a fundamental right against a judicial decision which offends against a fundamental right,-there should not be any difficulty in answering this question under those Constitutions where there is a specific provision in the Constitution64 that a person who alleges contravention of a fundamental right may apply to the High Court or the Supreme Court for redress. Such application is a collateral proceeding where the superior Court may grant relief by giving a declaration or by issuing a writ as may be prescribed by the Constitution (apart from appeal under the ordinary law). In such cases, the Constitutional Court may interfere with the unconstitutional judicial proceeding even at an interlocutory stage.65

In an appeal from Jamaica, the Privy Council has held66 that where the guarantee of a speedy trial or hearing within a reasonable time67 is violated by a criminal proceeding, the Constitutional Court may(i) Grant a declaration that the conviction of the petitioner after an unreasonable delay in hearing violated the guarantee of speedy trial;68 (ii) Quash the conviction.

However, though the Canadian Constitution Act, 1982, has a specific provision [s. 24(1)] for judicial enforcement of the Fundamental Rights, controversy has arisen as to whether relief can be given by a superior Court in a collateral proceeding for a prerogative writ, because of the vague phrase court of competent jurisdiction Section 24(1) reads(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Though the question has not been fully thrashed out, the following propositions may be formulated, from the decisions so far, on the foregoing provision: (i) A prerogative writ may be issued for the enforcement of Charter rights69 but the conditions of granting this relief will depend upon the incidents of the particular writ applied for, under the law apart from s.24(1).70 (ii) A writ of prohibition, being a discretionary remedy, should not be ordinarily issued so as to interfere with criminal proceedings where the accused might get proper relief in appeal, but the superior Court may issue a writ of prohibition in cases where the proceedings are void ab initio on constitutional grounds, e.g.,(a) Where the charge itself offends a Charter right.71

(b) Where the statute under which the Court is exercising jurisdiction is unconstitutional.72 (c) Where the order of an inferior Court73 or a Court Martial74 violates section 11(e) of the Charter which guarantees a right to reasonable bail except for a just cause. (d) A person affected by the decision of a quasi-judicial tribunal (e.g., the Immigration Appeal Board) may obtain a declaration from the Supreme Court that the decision of the Board is a nullity because the statute in pursuance of which the Board acted was invalid as it violated fundamental justice under section 7 of the Charter.75 A restrictive view has also been taken by the Privy Council under section 14(1) of the Constitution of Trinidad & Tobago, 1976 [which corresponds to S. 6(1) of the previous Constitution of 1972], even though it does not exclude the Judiciary or confine itself to infringement of Fundamental Rights by the Legislature or the Executive.76 In these cases, the Privy Council has virtually held that neither the guarantee of a fundamental right nor that of a collateral remedy for violation thereof has superseded the English doctrine of finality of a judicial decision. According to this doctrine, a judgment of a Court of competent jurisdiction, which becomes final because no appeal there from is provided by law or no appeal has been taken against it in due time, cannot be subjected to any collateral attack, on any ground.77 As pointed out earlier, this rule of the English law, as propounded by the Privy Council, prevailed upon the majority decision in Nareshs case.78 However, it may be contended that the

foregoing English rule is inapplicable to a written Constitution with a guarantee of Fundamental Rights and judicial review.

Prohibition
In common law of England, the writ of prohibition is one of the oldest prerogative writs. In its early days, it was used very largely to prevent the ecclesiastical courts from encroaching upon the domain of the common law courts. Later it was used with very devastating effect against the growing jurisdiction of Admiralty court. It was often used also against the special courts of cities like London and Bristol. It was that, when by the latter half of the 19th century, the law of prohibition has been fairly well developed and its principles satisfactorily defined. Prohibition is a judicial writ issued from a superior jurisdiction to an ecclesiastical or similar tribunal or an inferior temporal court including under the letter description, administrative authorities having a duty imposed on them to proceed judicially, to prevent violation of rules of natural justice or in contravention of the Laws of the land. Originally the order of prohibition is an order issuing out of High Court of justice and directed to an ecclesiastical or inferior temporal court which forbids that court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of land. The writ of prohibition was issued originally only out of the Kings Bench, as it was Kings prerogative writ. It is said, prohibition gives the superior courts of Westminster, superintendence over all

inferior courts. The history of writ of prohibition was discussed in R.v. Chancellor of St. Edmundsbery & Ipwich Diocese207. But a cause or proceeding in High Court or Court of appeal cannot be restrained by Prohibition. Another distinct feature of this writ is that it is a preventive rather than a corrective remedy and it is issued only to prevent the commission of a future act and not to undo an act already performed.

207. (1948) 1 KB 195. This writ will lie in proper cases as to matters of purely judicial nature. It will not go if the proceedings which is sought to prevent are only ministerial and this remedy is granted only in cases where the usual or ordinary forms of remedy are insufficient to afford redress and it is a principle of universal application and one which lies at the very foundation of the law of prohibition that the jurisdiction is strictly confined to cases where no other remedy exists and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law. This writ will not be allowed to take place of an appeal, nor will it be granted as an exercise a purely appellate jurisdiction. In R.v. Electricity Commissioner, 208 Atkin LJ observed as follows: Both writs (Prohibition and certiorari) are of great antiquity forming part of
the process by which the Kings court restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; Certiorari requires the records or order of the court to be sent up to Kings Bench Division to have its legality enquired into and if necessary to have the order quashed. Prohibition lies not only for excess of or absence of jurisdiction but also for a departure from rules of Natural Justice.

The writ of prohibition is a very ancient origin and it may be said to be as old as the common law itself. In England, the jurisdiction by this ordinary remedy was generally exercised only by the court of the Kings Bench, although it was not exclusively confined to that tribunal. The writ of prohibition may be defined as extraordinary judiciary writ, issuing by the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior tribunal usurping the jurisdiction with which it was not legally vested. It is the original remedial writ and is the remedy afforded by the common law to correct encroachment of jurisdiction by inferior courts and is used to keep such courts within
208. (1924) 1 KB 171.

the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate judicial tribunal of every kind from exceeding their jurisdiction, its use in all appropriate cases should be upheld and encouraged and since it is the vital importance to the due administration of judges that every tribunal vested with judicial function should be confined strictly to the exercise of those of powers with which it has been by law entrusted. The language used in articles 32 and 226 of constitution is very wide and powers of the Supreme Court as well as of the High Court in India extend to issue orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo-warranto, prohibition and certiorari as may be considered necessary for enforcement of fundamental rights and in cases of High Court for other purpose as well. In view of the expressed prohibition in the constitution we need not look back to the earlier history of the procedural technicalities of this writ of English law and not feel oppressed by any difference or change of opinion expressed in particular case by English Judges.

It we do not keep to the board fundamental principles of the jurisdiction in the matter of granting such writ in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no inconformity of approach and there will be danger of the jurisdiction becoming penalized. The perimeter of jurisdiction would vary from judge to judge and from court to court. The law does advance, the jurisprudence thus undoubtedly develops with the passage of time, but not forgetting the fundamental and not by abandoning them. The writ of prohibition may be defined as extraordinary judicial writ, issuing by the court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior usurping the jurisdiction with which it was not legally vested. It is very ancient origin and it may be said to be as old as the common law itself. It is a original remedial writ and is the remedy afforded by the common law to correct encroachment of jurisdiction by inferior courts and is used to keep such courts within the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate juridical tribunal of every kind from exceeding their jurisdiction, its use in all appropriate cases should be encouraged and since it is the vital importance to the due administration of judge that every tribunal vested with judicial function should be confined strictly to the exercise of those of powers with which it has been by law entrusted.