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Bombay High Court on whether Courts can be defined as ‘State’ under Article 12 of the Constitution-Corporate Newsletter

July 24, 2018

Bombay-High-Court

VOL III
ISSUE No. 30
July 24, 2018


India: Bombay High Court on whether Courts can be defined as ‘State’ under Article 12 of the Constitution?

maharashtra-food

Source: www.bombayhighcourt.nic.in

‘State’ as defined by Article 12 of the Indian Constitution is ‘unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India’. According to John Locke the purpose of state is “common good or good of mankind”. This can be achieved only by upholding the rights of the individuals. Article 12 does not explicitly mention judiciary. However, as judiciary is the guardian of fundamental rights, an obvious question that can arise is ‘Can Courts be defined as ‘State’ under Article 12 of the Indian Constitution?’

The High Court of Bombay recently answered this question in the case of The National Federation of the Blind, Maharashtra & Anr v. The High Court of Judicature of Bombay, wherein it held that ‘Courts are included within the definition of “State” only on the administrative side while dealing with employees or while taking decisions in administrative capacity, and not on the judicial side’.

Brief Facts

  • The National Federation of the Blind, Maharashtra (hereinafter referred to as ‘Petitioner No. 1’) are a trust for the cause of visually impaired persons. Sachin Bhaurao (hereinafter referred to as ‘Petitioner No. 2’) who was 100% blind, expected an opportunity to compete with other candidates pursuant to the advertisement issued by The High Court of Judicature of Bombay (hereinafter referred to as ‘Respondent’).
  • An advertisement dated March 28, 2018 (hereinafter referred to as ‘the impugned advertisement’) was issued by the Respondent for filling up the posts of Stenographer, junior clerk, and peon in various District Courts in the State of Maharashtra.
  • The Petitioner No. 2 expected an opportunity to be provided to compete with other candidates pursuant to the advertisement by the Respondent.
  • In the said advertisement, reservation was not provided for disabled in consonance with the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘Act of 2016’)
  • Thus, the same advertisement was challenged before the High Court of Bombay (hereinafter referred to as ‘the Court’).

Issue

Whether the writ of mandamus would lie against the High Court in view of the provisions of Article 229 of the Constitution of India to comply with the provisions of the Act of 2016?

Petitioners Contentions

  • The major contention of the Petitioner was that the Court, on the administrative side, was a State within the meaning of Article 12 of the Constitution of India, 1950.
  • It was contended that under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the Act of 1995’), reservation was prescribed for the visually impaired candidates to the posts which were identified as per the Act of 1995.
  • It was submitted under the new Act i.e. The Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as ‘the Act of 2016’), additional categories of reservations were prescribed for persons with disabilities.
  • It was further contended that the Respondent was bound to comply with the provisions of the Act of 2016.
  • Referring to the impugned advertisement it submitted that for the post of junior clerk, only 1% of ‘hearing impaired’ and 1% of ‘one leg affected’ had been reserved for the disabled person.
  • It submitted that the Respondent was also covered under the definition of 2 (k) of the Act of 2016, which defines “Government establishment”.
  • It submitted that the Central Government and State Government had not exempted High Court under the provisions of the second proviso to Sub- section (1) of Section 34 of the Act of 2016.
  • It was submitted that the Respondent ought to have first identified posts in view of mandatory provisions of Section 33 of the Act of 2016 and thereafter issued advertisement.
  • It argued that the impugned advertisement was contrary to the law laid down by the Apex Court, orders issued from time to time in this regard and the Government Resolution issued by the State Government.
    • It submitted that if an opportunity was denied to the persons affected with disabilities now, then the whole purpose of social welfare legislation would be lost.
    • It further submitted that disabled persons must be provided with equal opportunity to participate in public employment otherwise it would amount to discrimination.

    Respondent’s Contentions

    • It contended that the impugned advertisement was issued to recruit staff in the District Courts of the State of Maharashtra and the District Courts were not included in the definition of “Government Establishment” under Section 2 (k) of the Act of 2016.
    • It submitted that there was an urgent need of recruitment of these posts considering the huge number of vacancies throughout the State of Maharashtra.
    • It contended that the Petitioners had misconstrued the provisions of Section 34 of the Act of 2016.
    • It further submitted that large number of applicants had already submitted their applications and it would not be advisable now to cancel the recruitment process and re-start it.
    • While referring to Article 229 of the Constitution, it was submitted that appointment of officers and servants of the High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct.
    • Since the Respondent was a constitutional establishment, the provisions of Section 2(k) of the Act of 2016 cannot be made applicable, even if the Central or the State allocate funds for running the Courts and/or its establishment.

    Court’s Decision

    • On the Respondent’s contention regarding applicability of the provisions of Act of 2016, the Court held that
      it was not consistent with the administrative decisions taken by the Respondent.
    • The Court held that
      ‘the question as to whether the High Court is a “State” within the meaning of Article 12 of the Constitution was settled one.’
    • Several precedents were cited by the Court. Some of them were
      H.C. Puttaswamy and Ors. v. Hon’ble Chief Justice of Karnataka High Court, Bangalore & Ors.[1] , Riju Prasad Sarma & Ors. v. State of Assam and Ors.[2] 
    • In accordance with these precedents, which held that the judgments of the High Court and the Supreme Court cannot be subjected to writ jurisdiction and for want of requisite governmental control, judiciary cannot be a State under Article 12, the Court held that while acting on the judicial side the Courts are not included in the definition of the State. Only when they deal with their employees or act in other matters purely in administrative capacity, the Courts may fall within the definition of the State for attracting writ jurisdiction against their administrative actions only.
    • The Court further held that such a contextual interpretation must be preferred because it shall promote justice, especially through impartial adjudication in matters of protection of fundamental rights governed by Part III of the Constitution.
    • The Court also held that,
      although the Court has every power to examine the constitutional validity of rules framed under Article 229 of the Constitution of India, it cannot issue directives to the Chief Justice to frame rules for the benefit of a certain section of the society. Therefore, No Writ of Mandamus would lie against the Chief Justice to legislate rules under Article 229 of the Constitution of India.
    • Therefore, it was held that the High Court is not a State within the meaning of Article 12 on the judicial side, but it is a State on the administrative side.

    The Court ordered that the recruitment process shall be allowed to continue with a rider that the Respondent shall keep 4% seats/posts vacant in the subject recruitment drive and these seats shall be filled in after the Respondent takes a decision on the administrative side on identification of posts. Thereafter by a special drive, recruitment process could be initiated for filling up vacancies for persons who were covered under the provisions of Act of 2016. Such an approach will not only benefit the candidates in general but protect the legal rights of the candidates, who find themselves deprived of in getting benefits of the Act of 2016.

    _____________________

    [1]AIR 1991 SC 295

    [2](2015) 9 SCC 461

 


 
India: Madras High Court denied anticipatory bail to a political leader for making defamatory remarks against women

property

Source: www.hcmadras.tn.nic.in

The Madras High Court in a recent judgment, while denying anticipatory bail to the accused held that forwarding of messages on social media amounts to endorsement of the thought therein. Recently[1], the member of a national political party, the Petitioner for anticipatory bail, (hereinafter referred to as the “Accused”) was accused of making statements, inciting the modesty of women, especially journalists by posting statements to the likes of ‘sharing bed is the only way to come up in life’.

A compliant was registered against the Accused by the Respondent before the Inspector of Police, Cyber Crime, Central Crime Branch under Sections 504, 505 (1) (c), 509 of the Indian Penal Code read with Section 4 of Tamil Nadu Prohibition of Women Harassment Act, 2002 after which, the Accused applied for anticipatory bail, stating that he had inadvertently shared the said post. Several women activists, feminist enthusiasts, social welfare groups, journalists petitioned a complaint against the Accused stating that his message was highly insensitive and defamatory, full of derogatory terms against the modesty of women.

It is significant to note that being a political leader, the degree of care and diligence to be adhered to while making any statement should be very high considering that political parties and leaders play a huge role in shaping public opinion.

The argument advanced by the Learned Counsel for the Accused was that the complaint revealed no offence under Section 505 (1) (c) of the Indian Penal Code and it is further argued that a message received by the Petitioner from certain individual has been forwarded by him and he is not its author and the Petitioner has not committed any of the offences alleged against him.

The intervening Petitioners in the case, renowned journalists, women activists etc. argued that the Petitioner/Accused is not an illiterate man to simply pass the message without reading the same. Further, it is argued that when already there are incidents happening in the State derogating the modesty of women the post made by the accused in the Facebook, further worsened the situation and it affects the core of the women in entirety.

It was rightly argued by the intervening Petitioners that “If sharing bed is the only way to come up in life then does it include all women who are holding high posts now?”

The argument advanced by the Learned Counsel for the Accused stating that he had inadvertently forwarded the impugned message and that he had not written the message himself was dismissed by the Hon’ble High Court.

The Court made vital observations regarding the restraints to be adhered by public leaders while making statements. The Court stated “When we are in public life, every act of us is being watched by public. Control of emotions, showing emotions in a controlled form is a leadership quality.

The Court also condemned statements inciting of hatred and disharmony.

It further observed that since ‘talking is different from typing’, the author becomes estopped from going back upon his word and that people should feel that they are accountable for their words.

Considering the intense impact and rage that the statement of the accused had invited, the Court refused to grant him anticipatory bail and asked the respondent police to proceed with the case in the same way as they are investigating with any other common man.

An urgent need is felt to protect and instill sensitivity towards the glitches suffered by women in their career paths and the need to encourage them instead of defaming those who can rather be an inspiration to others.

 ________________________

[1] CRL. OP No.12229 of 2018

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