 The scope of RIT under Article 226 of the Constitution of India has itself always been an intruding subject and people have always loved to understand what is the scope of a RIT. As this case under this RIT, you can claim anything under the sky, but it has its own parameters. And within these facets, the another intruding facet is as to what is the scope of RIT against the private parties. To understand this vital subject, we had requested Jamshed Basikama, a senior advocate, Supreme Court of India. And he practices also on the Mumbai as well as Banditya. And he had readily agreed to share his knowledge and insights on this vital aspect. As we always say that on a weekend, we don't take much time on the introductions because people are always more keen to hear speaker of immense knowledge like Mr. Kama. And thank you, sir, for accepting the invite on behalf of Beyond Law CLC. I would like to tell the people that we had connected through Keshav Sharma, who had done one session with him. And we found that Mr. Kama had a wide knowledge that helped when we requested Keshav to connect with him. Over to you, sir. Thank you. White knowledge in law is limited. There is nobody who has too wide a knowledge, laws and motion. Anyway, the topic today is law applicable to RITs in the context of private respondents. You have to look for this in this context in the first place to the definition of article 226. The definition prescribes that a RIT or any order, RIT direction or order against any person, including the state. The key point here is the words including the state. We as RIT lawyers have in the last 50 years changed the concept of what is the government and what are the obligations of a respondent. In case a RIT is filed against that person. When the jurisdiction initially began, RITs were accepted by the High Court only against the state or essentially really state government and parties immensely close to that level of power. And nobody else was brought within the ambit of the state. Similarly, the words that I mentioned just now, including the state had gradually been gaining momentum, and people have begun to realize that a RIT by its very definition article 226 is not confined only to a state. Also, it is not confined only to the five prerogative RITs that we have. It says any RIT direction or order. The first direction of order are yet not really gained much importance in the courts. Courts still tend to look only at the prerogative RITs, mainly mandamus and certiorari. But it is something that I would like you all to consider in future whenever you are in practice, that you don't have to confine yourself to a RIT. It can be again, it can be even an order, which means that it is a highly inclusive definition and not an exclusive one. Coming down to the concept of against whom does the RIT lie? As I mentioned earlier, we should take the view earlier that it will lie only against the state. Now the question is, what is meant by the state? The state over a period of time has expanded. It first expanded in the context of a company and a cooperative society, if I'm not wrong, in the case of a statutory corporation. It went down the route that in the case of a statutory corporation, although it was not the state in the form of the government of the day, it was nevertheless an arm of the state. And it was considered that as I said in those days, the long arm of the state. So the long arm of the state would impose its imprimatur even at that time upon a statutory corporation. So the concept of state expanded to a statutory corporation. Thereafter, the courts felt, if you can have the long arm of the state in the context of a statutory corporation, then why not in the context of a cooperative society? So that was a low lead done thereafter. Then the question was, all right, suppose there's a company set up by the state. Then again, is that company not liable to audit? Once again is a long arm of the state not in that company when it comes out into the public. And once again, the courts held that a company set up by the state or a company which is like a PSU can and will be writable. There's a line of distinction which the courts have drawn. A company which is governed by its own articles and memorandum of association is strictly speaking a independent entity, independent of the government, so to speak. But nevertheless, it is writable under Article 12 and Article 226. Now one has to also understand the concept of Article 32 and 226. Article 32 is only for enforcement of fundamental rights. Article 226 is not so limited. It is for fundamental rights and any other statutory or any other obligation of the state or an instrumentality or an agent of the state. Now the question will ultimately lead to whether such a great can also lie against a pure and simple private company. I'll deal with that. But let's for a moment consider the evolution of the law. We can't go too much into that but let us start with some of the more important judgments. In the case of Ajay Hasseer versus Khalid Makmoojin, the court laid down that the only test is whether the institution is an instrumentality or an agent of the state. It is immaterial how it is created. Here we have what I consider a landmark judgment and a judgment which really makes me as a lawyer very proud of our courts. That judgment is Andi Mukta Satguru Trust versus Uddhani. Here the court came to the conclusion that even at a private college subject to public funding and close supervision by the university would be writable. It would lie against a private institution like a college who is part of a university if there is public funding involved and close supervision. The courts held that in such a situation, the activity is not deprived of its public character. Subsequently there are case law for the proposition that even without this public funding, running an education institution is a public duty or a public, it's in the public domain. Now in Andi Mukta, the court further went on to say that English law is confined to authorities as we understand them. That would mean a statutory authority but there is no such limitation in this country. And at paragraph 19 of the judgment, the court considered what is meant by the word authority and I can really do no better than to quote to you from paragraph 19. It says the term authority use an article 226 in the context must receive a liberal meaning unlike the term article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights. Article 226 confers power in the high courts to issue rich of enforcement of fundamental rights, as well as non-fundamental rights. The words any person authority use an article 226 therefore should not be confined only to statutory authorities and instrument that is the state. They may cover other persons or bodies performing a public duty. The form of the body concern is not very much relevant. What is relevant is the nature of the body, the nature of the duty imposed on the body. The duty must be judged in the light of a positive obligation owed by a person or authority to the affected person, no matter by what means a duty is imposed. So therefore the law now changed from saying that the respondent in a writ must be a state and instrumentarity or an agent of the state from saying that that is not enough. It will apply against any person who has a public duty or performs a public obligation. So therefore this according to the courts would cover even individual companies or societies purely in the private domain provided the nature of their work affects the public or a defined part of the pay. So when you talk of public duty, public obligation, what you're talking about is does the entity you're dealing with have a public duty like education, for example, doesn't have a public obligation. For example, it would be like a company carrying on or carrying on an activity like for example if there was a private company dealing in arms and ammunition manufacturing. Now that would be a private organization but its duty and obligation would be undoubtedly to the public, it would be performing a public function to that extent, it would then be writable. Now the question arose that under what circumstances and by what means must that duty be imposed. And in Para 21 of the same judgment the court held that to be enforceable by mandamus, a public duty does not necessarily have to be one imposed by a statute. It may be sufficient for the duty to be imposed by charter, common law, custom, or even contract. We share this view, this is the view of the Judicial Commission. The judicial control over the fast expanding maze of bodies affecting the rights of people should not be put into watertight compartments. It should remain flexible to meet the requirements or variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. So now the duty or obligation need not flow from a statute, need not flow from a government, GR or a direction. It can flow as I say here from common law or custom or even a contract. Now you have contracts for example to construct civil contracts. If a civil contract has an effect on society where the contract is being executed, and if there is a breach of duty by the state for example or by the private contractor for example in the context of its obligations, then it is possible in certain circumstances to hold that that contractor though a private party, though contracting with the state is nevertheless liable to maintain his duty or obligation to the public and that duty or obligation can be enforced by way of a writ. Subsequent judgments will demonstrate to you that a duty may be constitutional or it may be civil. The only difference is that in the case of a constitutional obligation the remedy available is that of a writ. In the case of a purely civil obligation, the remedy available is civil jurisdiction. But the point is, and that's interesting in one of the recent judgments of the court, they have said that there is a horizontality, that's the word unions, there's a horizontality between the rights in the public domain and the private domain. The reason behind this is that common law rights have been converted in certain circumstances to constitutional rights. Therefore a party for example the right to freedom of speech was always there. The right against against being assaulted was always there. Some of these rights have to the constitution acquired a constitutional obligation, but the civil law like still remains. So where the person committing the offense is not the state a civil remedy still lies. So there is a horizontal obligation, one by the state and the other by the private individual. If the obligation confers as I said a public duty upon the party who is being written, then that public duty is being enforced and you're not concerned with who the party is on whom that duty lies. Then we come to the next judgment that I'd like to draw attention to is Pradeep Kumar Biswas. Here they said instrumentality or agent of the state includes a society or a company. So you will notice how the law has been expanding. First it was society or order establishment where the strong arm of the government was visible. Then it went on into Andhra Mukti now very wide coverage, a much more inclusive coverage. Then here they have now described that the words instrumentality or agent of the state would include a government company or a society. Now today in the economics of this country, the government is an equal industrial partner. It is in business for itself. Ultimately of course for us citizens, but it is in business in its own name. Now a company set up by the government under the Companies Act with a memorandum and an article of association. Such a company would still be readable. It may not be a company for some other, for example under the Industrial Disputes Act, you have the concept of appropriate government. So suppose a central government company operating under the Companies Act is set up initially by the capital provided by the central government. It would nevertheless have as the appropriate government the state government where it is operating. But it would simultaneously be liable to be written on the grounds that it is a government company. So therefore the word instrumentality or agency of the government has now been expended to include companies and corporate societies. And indeed I would go so far as to say any organization where the government has a hand and as I will subsequently demonstrate it would include even a purely private establishment which has a public duty. That's where we come to the next one. That is Z-telefilms. In Z-telefilms, BCCI as you all of you know is a private board, private establishment was held to be liable to be written on the grounds that it is involved in selection and control of cricketers. And that is vital to the general public. So therefore they said the establishment is entirely private but it has its operations as a public effect. It affects the public in general and therefore the court held that it is liable to RITs. Now such a corporation may not be liable under Article 32. It may not have a fundamental right which it is invoking but it was certainly liable to RIT under Article 226 of the Constitution. The court held that a private body exercising a public function approved by the government has remedy and the ordinary law and the constitution. Now here we come to the horizontality issue. If a private party has a public function or a public obligation, that party to the extent of the public obligation can be subject to a RIT. Simultaneously it can also independently be subject to a suit. So a private body is liable under both heads. Constitutional obligation if it is a public duty performing and private party can also be subjected to a civil adjudication under civil law or common law. In Binni's case Binni Limited versus Sadashivan, the question arose whether an employee could find a RIT petition against a purely private company for the enforcement of his service conditions. The court held that no, a RIT will lie against a private company under certain circumstances. But the nature of the relief which is being sought in such a case is in the realm of private rights. It is a private individual right of the individual employee which he is seeking to enforce by way of a RIT and the court said there is no public element in that and therefore a RIT will not lie. Even against PSUs there is some dispute or doubt as to whether a RIT would lie. You see if a public servant or an employee of a PSU goes to court unless he can demonstrate that his rights flow from a statutory rule or a statutory regulation unless he can demonstrate that he cannot enforce a RIT even against a PSU for the enforcement of his private rights. Now very often people file RIT petitions in the high court challenging departmental inquiries for example or the challenge even breach of contract. In the case of departmental inquiries normally a RIT will lie because equally normally the rights of parties are governed by a statutory regulation or statutory rules so RIT will lie. But if a party seeks to enforce in the RIT jurisdiction against a PSU a right which does not flow from a statutory rule or regulation then in such a situation the RIT would not lie. So therefore one has to look at the nature always it is always the matter to be considered is the obligation. Is it an obligation in the public domain? If it is a purely private obligation employer employee even a statutory employer and employee purely in the private domain it becomes a private dispute and therefore is not amenable to a RIT. The only RIT which really strictly lies directly against a private person or individual would be a Hibiscus. You can file a RIT for Hibiscus against a private individual I am I doubt whether you can file a RIT against an individual for a private right. Interestingly the question arises as to whether a RIT will lie for breach of a statute against a purely private party. Now in the Bombay High Court I was a party to a petition that we have filed against a trade union because it had gone on an illegal strike contrary to the provisions of certain sections of the industrial disputes act. The High Court upheld that petition and directed the parties to seize that strike. Here is an example of a purely private respondent engaged or whose activities are engaged in the public domain. A strike has an effect on the public therefore an illegal strike was stale by the High Court of Bombay. In Federal Bank which is the only judgment of the kind I have seen in this case the Court held that breach of the industrial disputes act can be writable. At the same time it held that a bank is not writable per se because although it is governed by the RBI it is only a regulation. It is no obligation imposed by the RBI upon a private bank. So a private bank operating in the private sector is regulated by the RBI but it is not organized by set up by or controlled by the RBI in its normal operations. So please notice the distinction. A RIT will lie to enforce a statutory obligation. I will assume that is because a statutory obligation being part of a statute itself is in the public domain. I must confess that Federal Bank judgment is a very rare one I have not come across any others but I have been a party in filing a petition as I mentioned earlier in the Bombay High Court against a trade union for similar breach of statute. So it matters not who the respondent is. The only thing in matters is is there a public duty or a public obligation which such respondent has to fulfill and which you want to enforce by way of a RIT. Even in the realm of contracts in ABL International the Supreme Court held that every contract with the government involves an element of public duty. Supreme Court being Supreme Court has gone both ways. They have said in certain circumstances that in the pure contract the state appears not as the state or state company or corporation for example in the realm of pure commercial transactions. The court help in the state appears not as a state it appears as a pure contracting party and therefore a breach of contract would not entail a petition. On the other hand as I mentioned earlier in ABL International the court held that every contract with the state as a party is bound to have a public law element and therefore a RIT would undoubtedly lie. It goes both ways. Now we come to a judgment in Ramesh Alubaliya where the court laid down that Ajay Hesya's test and Ajay Hesya laid down a series of tests as to under what circumstances a party can be held to be liable to RIT. And they said that those tests are not rigid. If you follow any one of them also it's enough. The limited question is whether financially, functionally and administratively the respondent is dominated by the government. Here also they said the mere regulation is not enough. Even a purely private uncontrolled institution is writable if it performs a public function. Therefore in this case providing education to children was held to be in the public domain and liable to a RIT. We also got a subsequent judgment in BCCI versus Cricket Association of Bihar where for the first time they laid down what is meant by public policy. Now we are concerned with two things public function and public policy. In BCCI's case the court defined for us what is meant by a public policy and they said to court. Public policy is not a static concept. It is the fundamental point of policy of law, principle of law and ensures justice, fair play and transparency, objectivity and remains property in discharged public functions. And while that is opposed to those and anything that is opposed to these principles is opposed to public policy. In other words any action which flows or could or could considerably be governed by what we call the principles of law and which seeks to or which has an obligation to ensure justice, fair play and transparency. Any such organization which has such a duty is operating in the public domain and to that extent a RIT will lie. Subsequently in a subsequent judgment the court also defined what is meant by a public function and they said public function is any function which involves discharging of a public duty. So therefore a RIT will lie, remember Angi Mukti, they said we don't care how the organization came into existence, we don't care who set up the organization. We are not concerned with its content, we are only concerned with its obligation. So if I have any message to pass on to you today in the realm of RITs in private sector, the suggestion I would make is always bear in mind only one thing, obligation, duty. Is it in the public domain? Is it in the nature of a public duty? If it is RIT will lie it matters not who the respondent in your cases. There is a more recent judgment in this year itself in the case of Kaushal Kishore versus state of UP. Now here the court for the first time went into some detail in defining where a RIT will lie against a private party. And it's interesting really to read this judgment because it gives you chapter inverse of the circumstances and situations in which a RIT would lie. I'm not going to quote from it because there are several paragraphs dealing with this. And I would advise anybody who is interested in this issue to consider that judgment. I'll give you the citation is with 2023 SCC online page six. And I would like to now conclude this issue. I'm not too fast by referring to the most recent judgment of the apex court in the case of Kaushal Kishore versus state of state of Uttar Pradesh. And this is about the court held in the context of private parties. A public duty or a public function entitles a RIT profile. Public function referred to is a conduct which is similar to that being done by the sovereign in its sovereign functions. A statement by a minister. This is interesting. I don't know how many of you have even contemplated this. The question is whether a statement made by a minister on the floor of parliament would be the could be the subject matter of a RIT. The court concluded that where a minister makes a statement in his purely private capacity, even though he's in parliament, there's no written word. But if it can be demonstrated that he is speaking on behalf of the government, then there is a vicarious liability against the government. A private party and that minister is speech could be subject matter of RIT. Now RITs are essentially two kinds. One is negative. Don't do this. One is positive. Do what you're supposed to do. So even against a private party having a public function, the court can conceivably turn around and say, stop doing what you're doing. You're doing wrong. You're doing something which is against public interest, public policy. Conversely, if the state is not doing something that it is obliged to do, then the court can issue a affirmative direction saying do what you're supposed to do. At the end of all this thing, I again reiterate that a RIT will lie in today's times against a private party. I must confess that it will take a little bit of judgment law to convince the high courts today about this. There is still in the high court level and since judges Supreme Court go from the high court, there is still an element of doubt or reservation, I must say so, for the maintainability of a RIT against a private party. But in my opinion, there is no doubt about it. We have come to a stage in our constitutional evolution in the courts where a RIT will lie no matter who the party is, if there is a public duty or if there is a public obligation, and the worst public duty and public obligation have been given the widest possible connotation. So therefore, please remember a RIT will lie. Okay. Thank you, sir. We can also chip in Z-telegrams also, it also says. I mentioned Z. Oh, for example, I would have missed it, because that was also an interesting aspect. This is because the Board of Control controls the appointment of cricketers or points that controls their rights obligations, what they do, when they do, what they can do in the IPL, for example, a cricketer may be prevented by the Board from playing in a foreign organization similar to IPL. They may and they do sometimes. They get them from appearing in a set of matches with the Board does not approve of. So the Board has a control and to the extent of the control affects a cricketer who is operating in the public domain. To that extent, they said in Z-telegram, it will lie, a RIT will lie. Sir, for people, what are the broad guidelines that will lay down in Ajay SCF, we can just brush across. Yes. Ajay SCF is like 1981 Supreme Court. So you're going back about 30 years and subsequently, as I mentioned, the courts have held that it is not rigid. You don't have to comply with every one of these tests in order to come within the domain of a RIT. Even one of these is enough. And now they say, forget all that. You just look only at one thing, obligation. Is the respondent in your petition, a man or an organization, which is liable to perform a public duty? Is it operating in the public domain? If it is, then it is predictable. Anyway, since you want me to touch on Ajay Haseer, this is what Ajay Haseer says. It is immaterial with authority before it is a state. The only test is instrumentality or agency of a state. So you have to be an instrumentality or agent of the state under Ajay Haseer in order to be liable to a RIT. A manner of creation of the body is irrelevant. The question is, why does it come into existence? However, the body might be created. Is it an instrumentality or agency of the state? Always a court in that case asks, is it an instrumentality or agency of the state? Again, they said instrumentality of the state is not limited to corporations created under a statute. Memorandum articles of a society are instrumentality of the state in a given circumstance. Composition of society may be domestic or government. Providing the government controls or has some control over it. There are a number of other tests. So please remember, this is all law. As a court of health, this is only an example. And if you fall under any one or more of these, you will entitle to a RIT. But you can ignore Ajay Haseer completely if you want to. In the case of a private particle, Ajay Haseer doesn't consider a private party. And today we are discussing the right to find a RIT against a private party. What about when we speak of article 221, which says, 226-1 of the Indian constitution lays down that every high court shall have passed, issued orders or RITs, including habeas, habeas corpus, mandamus, prohibition, over-unto, etc., to any person or any government for the enforcement of fundamental rights or for any other purpose. So how will we come out within any other person or for other purpose? How do you elaborate that? When I began as I started off by saying that article 226 is much wider than article 32. 32 is confined only to fundamental rights. On the 226, you can go for any right, including a statutory right. And even if it's not a statutory right, you can go for the purpose of enforcement or public duty. You're not constrained by the respondent being a state. Any person who has an obligation, which is of a public nature, which affects the public is liable to a RIT. And in Andhi Mukti, they said that the law on mandamus has expanded tremendously. So today, what began Rajahasya has ended in 2023 by saying that it can be lie against anybody. And one more thing I forgot to mention, in the last mentioned judgment, they have said that a RIT will lie even on tort. Now, all of you are lawyers. You know what a tort is. Civil wrong. Yeah, last one. They say a RIT will lie against the government even on tort. So therefore, if a government commits a tortuous action, for example, if a government, in one case, the Chief Justice had occasion to consider a man who had been wrongly imprisoned for 14 years, it was considered to be a tortuous action by the state and a compensation was granted. I mean, in tort, the only relief is compensation. But it can be enforced by way of RIT. Nowadays, you find very often tort just say, OK, don't do this. Pay. Don't do that. Compensate. So what we already knew earlier that you were doing it for the first time has received the direct seal of the apex court. Constitutional tort is a kind of right. And it is an obligation on the state and can be enforced by RIT. OK. Thank you, sir. Thank you for sharing your knowledge. And it was quite a topic wherein we have learned a lot. And so tomorrow you will have session on the aspects of limitation under the CRPC by Mr. M. Karunan Nithi, who is a member of the Law Commission of India. Do stay connected with us tomorrow at 6 p.m. And thank you, Mr. Jimshed Dhamma, for sharing your knowledge. Thank you. You're most welcome. Bye.