Karnataka High Court
K.L.J.A. Kiran Babu vs Honorable High Court Of Karnataka on 11 September, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION No.40002/2018 (GM-RES)
BETWEEN:
K.L.J.A. Kiran Babu,
Aged about 51 years,
Permanent Address: 26/590(B),
Krupanilayam,
Near S.P.G.H.S., Nandyal R.S,
Andhra Pradesh - 518 502. ...Petitioner
(By Sri. K.L.J.A. Kiran Babu, Party-in-person)
AND:
1. Honorable High Court of Karnataka.
(By the Honorable Registrar General),
Dr. Ambedkar Road, Bengaluru - 560 001.
2. The Management of Hewlett Packard
Global Soft Pvt. Ltd.,
HP Avenue, 39/40 Electronics City,
Hosur Road,
Bengaluru - 560 100. ... Respondents
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to pass an order with the
definitive guiding principles on the aforesaid substantial
questions of law.
2
This Writ petition coming on for Orders this day,
the Court made the following:-
ORDER
Office has raised certain objections interalia, with regard to arraigning of the Registrar General of High Court of Karnataka, as respondent No.1 in the writ petition and with regard to the prayer sought for by the petitioner herein, which reads as under:
"Wherefore it is most humbly prayed that, this honorable Court may be pleased to pass an Order with the definitive Guiding Principles on the aforesaid Substantial Questions of Law, in the interest of justice and equity."
2. On a query raised by this Court, the petitioner appearing-in-person submitted that he requests the Court to answer the following Substantial Questions of Law:
6) Whether the "Directions" under the Article 226 of the Constitution of India are 3 different from the Prerogative Writs?
Explanation: If the Directions or Orders are as equivalent as the Writs, then why would the Article 226 make a segregation between the Directions, Orders and Writs? Therefore, whether the "Issuance of Directions" under the Article 226, amounts to the "Issuance of Writs"?
7) Provided further, whether the High Courts, under the Article 226, can decide a matter for the enforcement of Fundamental Rights, without the issuance of any Directions or Writs to any party?
8) However, it is not a question here, as to who falls (or) who doesn't fall in the definition of "State" under the Article 12 of the Constitution of India. In anyway, a question of exhaustion of "alternate remedy" is perhaps different from the question of "Concurrent jurisdiction".
a) Illustration I: Assuming, two Contract Killers make an agreement between themselves to extort money 4 and to kill a wealthy businessman, and accordingly they have extorted money and killed such businessman. Illustration II: A and B made an agreement between themselves, to exchange their wives for some consideration, wherein A has later taken an undue advantage to blackmail B. As per the Section 2(h) of the Indian Contract Act 1872, an agreement which is enforceable by law, is a "Contract". As per the Section 2(g) of the Indian Contract Act 1872, an agreement which is not enforceable by law is said to be void. However the question is, whether the Criminal Courts should necessarily let the those Contract Killers (in the illustration) live scot-free, until the jurisdictional Civil Court decides as to whether the agreement (between those two Contract Killers to extort & kill the businessman) is valid or void?
5b) Similarly, when/if the "same facts"
give raise to the Civil & Constitutional issues, the substantial question here for consideration is, whether "claiming for the damages" in the jurisdictional Civil Court is a "prerequisite" for the enforcement of Fundamental Rights in the respective High Court under the Article 226 of the Constitution of India?
c) In State of West Bengal Vs
Committee for Protection of
Democratic Rights (2010 3 SCC 594) a Constitution Bench of the Apex Court has ruled, "Being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction, but also an obligation to protect the Fundamental Rights guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly."6
d) In ABL International Ltd Vs Export Credit Guarantee Corp of India Ltd (2004 3 SCC 553) the Apex Court has reiterated, "The High Court is not deprived of it's jurisdiction to entertain a Petition under Article 226, merely because in considering the Petitioner's Right to Relief questions of fact may fall to be determined. In a Petition under Article 226, the High Court has jurisdiction to try issues both of fact and law".
e) In Engineering Mazdoor Sabha Vs Hind Cycles Ltd (AIR 1963 SC 874) a Constitution Bench of the Apex Court has ruled, "Article 226 is in a sense wider than Article 136. The power conferred under 226, not being conditioned or limited by the requirement that the Writ can be issued only against an Order of a Court or a Tribunal".
79) Provided further, it is absolutely crucial to consider, whether the infringement of Fundamental Rights, especially in the light of the Articles 21 & 23 of the Constitution of India, can be claimed only against the State & the Instrumentalities of State (or) and also against any non-State actors and pure Private Parties?
a) In Zee Telefilms Ltd Vs Union of India (2005 4 SCC 649) the Apex Court has ruled. "There is not doubt that, Article 19(1)(g) guarantees to all citizens the Fundamental Right to practice any profession or to carry-on any trade, occupation or business, and that, such a Right can only be regulated by the State by virtue of Article 19(6). Hence, it follows as a logical corollary that, any violation of this Right will have to be claimed only against the State, and unlike the Rights under Articles 17 or 21 which can be claimed against Non-State Actors including individuals, the Right under Article 19(1)(g) cannot be 8 claimed against an individual or a non-State entity".
b) In People's Union for Democratic Rights Vs Union of India (AIR 1982 SC 1473) the Apex Court has ruled, "But, there are certain Fundamental Rights conferred by the Constitution, which are enforceable against the whole world, and they are to be found inter alia in Articles 17, 23 and 24". The very same Bench has further ruled, "It is Article 23 with which we are concerned and that Article is clearly designed to protect the individual not only against the State, but also against other Private Citizens. Article 23 is not limited in it's application against the State, but it prohibits traffic in human beings and beggar and other similar forms of forced labour practiced by anyone else".
9c) In Textile Labour Association Vs State of Gujarat (1984 II LLJ 303) Gujarat High Court has ruled, "... the Writ Petition under Article 226 of the Constitution for enforcement of Fundamental Rights can be issued to any person who need not be an Authority of the State, and it can be a Private Party". The very same Bench (Supra) has further ruled, "In such miserable circumstances, if Right to Livelihood and a bare necessity of human dignity cannot be enforced, though guaranteed by the Constitution, the Court cannot justify it's existence for the enforcement of Fundamental Rights. Article 21 guarantees at least that minimal".
d) In Rohtas Industries Ltd Vs Rohtas Industries Staff Union (1976 2 SCC
82) the Honorable Apex Court has ruled, "The expansive and extraordinary power of the High Court under Art 226 is as wide as the amplitude of the 10 language used indicates and so can affect any person - even a Private Individual, and be available for any (other) purpose, even one for which another remedy may exist".
10) As per the Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all Courts, within the territory of India. Whereas the Article 368 of the Constitution of India "expressly" empowers the Parliament to amend the Constitution accordingly. It may be needless to say that, there is "no touchstone" outside the Constitution (AIR 2007 SC 861). But unlike the Article 368, there is "no explicit provision" in the Constitution of India, to interpret the Provisions/Articles of the Constitution of India, against the plain & natural meaning of the Provisions/Articles the Constitution of India. Illustration: The Article 214 of the Constitution of India articulates that, there shall be a High Court for each State. An erroneous interpretation of the Article 11 214 may say that, there cannot be or shall not be a High Court for each State. It is vividly evident that, the Article 226 does not utter that the High Courts cannot or shall not enforce the Fundamental Rights conferred by the Part III of the Constitution, if such Rights are infringed by a pure Private party. Nor the Article 226 makes any difference between the Public Functions and the Private Functions. Noticeably, the holistic objective of the Article 226 of the Constitution of India is predominantly meant for the enforcement of the Fundamental Rights perhaps by reducing the excessive or exhausting red- tapism, and of course also for any other purpose. Therefore, if the interpretation such as there shall not be a High Court for each State is erroneous, then whether the interpretation such as the High Courts cannot issue directions to a pure Private Party for the enforcement of Fundamental Rights is equally erroneous? Therefore a substantial question for consideration is, whether any interpretation which sounds 12 manifestly contrary to the plain & natural meaning of the provisions of the Constitution, is unconstitutional?
a) In Uttar Pradesh State Co-operative Land Development Bank Limited Vs Chandra Bhan Dubey (1999 1 SCC 741) the Honorable Supreme Court of India has emphatically ruled, "It does appear to us that, Article 226, while empowering the High Court for issue of Orders or Directions to any authority or person, does not make any such difference between Public Functions and Private Functions". The very same Bench has further ruled, "When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an Instrumentality of the State, a Company or a Co-operative Society or Association or Body of Individuals whether incorporated or not, or even an Individual".
1311) Disclaimer: No writ petition is pending before this Honorable Court for the very same cause of action. No other alternate remedy may be available for the very same cause of action (perhaps, except a remedy under the Article 32 of the Constitution of India, before the Honorable Supreme Court of India).
12) Without prejudice, it is most humbly submitted that, a discretion may differ from a person to person, more so, if there is no uniformed standard or clarity. In anyway, in Gian Singh Vs State of Punjab (2010 10 SCC 303), the honorable Apex Court has ruled, "A Judicial Discretion has to be exercised on some objective GUIDING PRINCIPLES and Criteria, and not on the Whims and Fancies of individual Judges".
3. On reading of the same it becomes clear that the petitioner is seeking certain answers to legal queries arising under certain provisions of the Constitution of 14 India, which cannot be sought by filing a petition under Article 226 of the Constitution of India before the High Court. In that view of the matter, writ petition is dismissed as not maintainable.
However, if the petitioner has any particular cause of action so as to ventilate his grievances before this Court, he is at liberty to do so, in a properly constituted writ petition.
Sd/-
JUDGE SV/-