The "State" under the Constitution - A Journey Down the Trodden Path
By A.K. Jayasankaran Nambiar, Senior Advocate, High Court of Kerala
02/11/2009
The "State" under the Constitution - A Journey Down the Trodden Path
(By A.K. Jayasankaran Nambiar, (M/s Menon & Pai, Advocates)
1. As one of the three pillars on which the edifice of Governance rests, the Judiciary has a rather important role to play in the development of our jurisprudence. In the discharge of its functions, the judiciary faces numerous problems, a substantial part of which is on account of the need to apply the written law to changed social circumstances. The Supreme Law of our Country being contained in a written document - The Constitution - Our Courts have had to grapple with the unenviable task of interpreting the written words of the Constitution to adapt to the needs of a changing society. They do not have the luxury enjoyed by countries such as Britain where constitutional concepts can be evolved to suit the times and later dropped when they have served their time. For us, the laws are written or codified and therefore the dropping of a legal concept can happen only through a repeal or amendment of an existing legal provision or the overruling of a judgment that interprets the provision in a particular way. In this essay I endeavour to focus on the development of our constitutional law in relation to one particular concept - the concept of “the State” as contained in Art.12 of the Constitution.
2. It is by now well settled that the remedy available to a litigant of our Country through Writ Petitions - either under Art.32 or under Art.226 of the Constitution - is only in respect of a right that arises or accrues to him in the realm of public law. In other words, where a person complains of a breach of his civil right and the right claimed by him is one which does not stem from a public duty that is cast on the alleged infringer of that right, then his remedy lies in approaching a Civil Court of competent jurisdiction and not the Writ Court. The remedy by way of a Writ Petition is confined to cases where the breach alleged is of a right that is guaranteed to a person under the Constitution or a right that a person is entitled to claim as a member of the general public to whom such a duty is owed by the alleged violator of the right. This, in essence, is the public law/private law divide that so haunts many a hapless litigant trying to determine where he should go for a redressal of his grievance.
3. Rights of a person under public law, correspond to duties in another person who has vested in him an authority to act in a manner that is capable of affecting the rights of the former. This authority conferred on the latter can be either under a statute or otherwise, but must necessarily be such that the duty cast on him by virtue of that authority is one that is owed not to particular individuals but the public in general or a class of such public. Thus, as a general proposition it can be stated that when a person, who has been conferred with a power to affect the rights of the public in general, acts in a manner prejudicial to the rights of any particular member of the public, that member can approach the Higher Courts for a remedy under public law. The difference in the nature of remedies under Art.32 and Art.226 is that while the former is available only when the right of the individual affected is a fundamental right, the latter is available in all cases where the right affected is a right under public law. The concept of “State” as defined in Art. 12 of the Constitution of India, assumes importance in the context of legal remedies because there are various provisions in the Constitution that cast duties or obligations on the “State” in its dealings with citizens and non-citizens. The legal identity of the alleged violator of the right - whether it is a State or a private person -assumes importance as a first step in determining the forum where the dispute can be settled.
4. The definition of the word “State” in the Constitution is to be found in Art.12, which itself is in Part III of the Constitution under the Heading “Fundamental Rights”. The definition reads as follows:
“12. Definition - In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and 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.”
It is clear from the opening words itself that the definition of the term “the State” is for the purposes of Part III alone and hence all those persons who come within the ambit of the term “the State” under Art.12 are subject to the duties and obligation cast upon them under Part III of the Constitution. Part III of the Constitution indicates not only what rights are treated as fundamental under the Constitution but also the persons against whom these rights can be enforced as fundamental rights. The Constitution does not through its own force set any limit upon private action. This was clearly noticed by the Hon’ble Supreme Court in Sukhdev Singh v. Bhagatram ((1975) 1 SCC 421.) when it observed that “it is against State action that fundamental rights are guaranteed. Wrongful individual acts unsupported by State authority in the shape of laws, customs or judicial or executive proceedings are not prohibited...By and large, unless an act is sanctioned in some way by the State, the action would not be State action. In other words, until some law is passed or some action is taken through officers or agents of the State, there is no action by the State”. The development of the law relating to the ambit and scope of each of the fundamental rights, therefore, had a direct bearing on the expanding scope of the term “the State” and the Supreme Court once observed that “keeping pace with this broad approach to the concept of equality under Arts.14 and 16, courts have whenever possible, sought to curb an arbitrary exercise of power against individuals by “centres of power”, and there was correspondingly an expansion in the judicial definition of “State” in Article 12" (Ruma Pal J. in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology – 2002 (2) KLT SN 82 (C.No.96) SC = 2002 (5) SCC 111 @ p. 124.)
5. The expansion in the judicial definition of “State” in Art. 12 came about through a steady process of judicial interpretation spanning more than four decades. Initially, courts applied the well known interpretational tool of “ejusdem generis” to hold that the term “other authorities” would take within its fold only such authorities as would fall within the same class as those authorities that were specifically mentioned in the definition. This view later gave way to a purposive interpretation of the definition so that all authorities who exercised statutory powers also came within the scope of the term. In Rajasthan State Electricity Board v. Mohan Lal (AIR 1967 SC 1857) while considering the issue of whether an Electricity Board, which was a statutory corporation carrying on commercial activities, would come within the definition of “State” a Constitutional Bench of the Supreme Court held that “the expression “other authorities” in Art.12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purposes of carrying on commercial activities”. This view was taken a step further in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi ((1975) 1 SCC 421) where the court affirmed the decision in Rajasthan Electricity Board and further held that “the State” would include a public authority which is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. The Court recognised the possibility of power being bestowed upon corporations and other authorities which was not necessarily statutory in its origin. They acquired power because they produced goods or services upon which the community came to rely. It was observed that “the methods by which these corporations produce and the distribution made in the course of their production by way of wages, dividends and interest, as also the profits withheld and used for further capital progress and the manner in which and the conditions under which they employ their workmen and staff are vital both to the lives of many people and to the continued supply line of the country. Certain imperatives follow from this. Both big business and bi labour unions exercise much quasi-public authority”. It was opined, however, that for qualifying to be a “State” for the purposes of Art.12 of the Constitution, the authority should be “the voice and the hand” of the Government. Mathew J, while delivering a concurring judgment also postulated the following tests for determining whether a corporation was an agency or instrumentality of the State
• A finding of State financial support and an unusual degree of control over the management and policies of the corporation;
• Whether the operation carried on is an important public function;
• If a given function is of such public importance and so closely related to Governmental functions as to be classified as a Governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of State action. If the function does not fall within such a description then mere addition of state money would not influence the conclusion;
• The ultimate question is whether such a corporation is an agency or instrumentality of the State for carrying on a business for the benefit of the public.
6. The law on the subject was further developed in R.D.Shetty v. International Airport Authority ((1979) 3 SCC 489) which concerned the grant of a tender for running a restaurant and two snack bars at the International Airport at Bombay. Bhagwati, J held that where the Government deals with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its actions must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. He went on to supply the rationale for an expansive definition of State as follows:
“As the tasks of the Government multiplied with the advent of the welfare state, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the Government.”
It was observed that corporations acting as instrumentalities or agencies of the Government would obviously be subject to the same limitations in the field of constitutional and administrative law as the Government itself, though in the eye of the law, they would be distinct and independent legal entities. It was acknowledged, however, that the Question as to whether a corporation was acting as an instrumentality or agency of the government was one that was “not entirely free from difficult”. Drawing analogy from the concept of State action as developed in the United States of America, Bhagwati J. proceeded to suggest the following tests for determining whether a corporation was an instrumentality or agency of the Government:
• Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would offer some indication of the corporation being impregnated with Governmental character;
• The existence of deep and pervasive State control;
• The existence of a monopoly status which is either State conferred or State protected;
• If the functions of the corporation are of public importance and closely related to governmental functions;
• If a department of the Government is transferred to the corporation;
It was opined that the public nature of the function carried on by the corporation, if impregnated with governmental character or tied or entwined with the Government or fortified by some other additional factor, might render the corporation an instrumentality or agency of the Government. To ascertain this, it was necessary to apply the suggested tests cumulatively and not singularly and then come to a finding on a consideration of all the facts. The International Airport Authority was found to satisfy all the tests laid down and accordingly it was held to be an instrumentality or agency of the Central Government and therefore a “State” as defined in Art.12 of the Constitution.
7. In Ajay Hasia v. Khalid Mujib Sehravardi ((1981) 1 SCC 722) a Constitutional Bench of the Supreme Court, speaking through Bhagwati J. again, reiterated the need for expanding the concept of “State” so as to protect the fundamental rights of the people. It was held that merely because the Government chose a Corporation or other body as a vehicle for carrying on their functions, it could not absolve itself of its Constitutional duties or obligations. A corporation which was in effect an agency or instrumentality of the State was subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it was a distinct and independent legal entity. While clarifying that it was not necessary that an authority for the purposes of Art.12 had to be created either by or under a Statute, the court held that the inquiry to be made was not as to how the juristic person is born but why it has been brought into existence. The Court then endorsed the tests laid down in the International Airport Authority case and observed, with a caveat, that while the said tests were merely indicative indicia, they had to be used with care and caution because while stressing the necessity of a wide meaning to be placed on the expression “other authorities”, it had to be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. On the facts of the case before it, the Society which administered the Regional Engineering College, Srinagar was held to be an Instrumentality or Agency of the State and Central Governments and hence an “authority” within the meaning of Art.12 of the Constitution.
8. The approach of the judiciary in the cases referred to in the earlier paragraphs has been to strike a balance between the need to prevent the State from escaping its constitutional obligations while at the same time protecting the freedom enjoyed by autonomous bodies by ensuring that they are not subjected to such constitutional duties and obligations as were not required of them.
9. In April 2002, a Seven member bench of the Supreme Court was constituted, in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology ((2002) 5 SCC 111) to decide upon the correctness of an earlier five member bench decision of the court on the issue of whether the Council of Scientific and Industrial Research (CSIR) was an “authority” within the meaning of Art.12 of the Constitution. After an elaborate consideration of the case law on the subject, the majority held, overruling the earlier decision in Sabhajit Tewary v. Union of India ((1975) 1 SCC 485) that the CSIR is a State within the meaning of Art.12. As regards the tests to be applied for determining whether a body is a “State” it was held that the question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control has to be particular to the body in question and must be pervasive. If the control is merely regulatory, whether under statute or otherwise, it would not serve to make the body a “State”. An interesting observation was made by Lahoti, J. while delivering the dissenting judgment. He sought to highlight the distinction between the terms “instrumentality or agency of the State” and “other authority” for the purposes of Art.12. He points out that earlier decisions seem to have obliterated the distinction between the two terms and proceed on the basis that a finding that a body is an instrumentality or agency of the State would automatically bring it within the ambit of “other authorities” for the purposes of Art.12. This view, according to him, is flawed because the two terms are distinct and separate and simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of “other authorities” under Art.12. To be an authority, the entity had to be created by a statute or under a statute and functioning with liability and obligations to the public. Further, the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Art.13(2) governing its relationship with other people or the affairs of other people - their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the authority such powers. In either case, it should have been entrusted with such functions as are Governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State.((2002) 5 SCC 111 @p. 157)
10. The observations by Lahoti J, although forming the minority view in the Pradeep Kumar Biswas case, does try to explain the development of the law by adhering to a course that would not do violence to the literal meaning of the words used in Art.12. Thus, while the word “Government” - whether State or Central - could, by virtue of the earlier decisions, be interpreted as taking within its fold even an instrumentality or agency of the Government, the term “other authority” could be confined in its operation to only such bodies as actually enjoyed powers by virtue of express conferment of those powers on them by a Statute.
11. In Zee Telefilms Limited v. Union of India ((2005) 4 SCC 649) a Constitutional Bench of the Supreme Court was called upon to review the case law on the subject so as to determine whether the Board of Control for Cricket in India (BCCI) was a State for the purposes of Art.12. The Board was not created by any statute and was only a Society registered under the Societies Registration Act, 1860. It was an autonomous body, the administration of which was not controlled by any authority including the Union of India. It did not take any financial assistance from the Government nor was it subjected to any financial control by the Government or was its accounts subjected to scrutiny by the Government. While this was deemed sufficient by the majority to hold that BCCI was not a State - since it did not satisfy the tests of functional, financial and administrative control by the Government as laid down in the case of Pradeep Kumar Biswas, it is relevant to note that it was virtually admitted that in the field of cricket in India, the Board enjoyed a monopoly status, which although not State conferred was not entirely free of State protection. The majority view of the Supreme Court was that this passive, State-protected, monopoly was not sufficient to treat the Board as a State because the controls exercised by the Union of India over the activities of the Board in regard to organising cricket matches and granting of permission to allow foreign teams to come into India were only regulatory in nature. The majority view did, however, acknowledge that the activities of the Board were akin to public duties or State functions and accordingly, if there was a violation of any constitutional or statutory obligations or rights, the aggrieved person could have a remedy through a petition under Art.226. An interesting observation is to be found in the concluding part of the majority judgment wherein it is stated that:
“..the socio-economic policy of the Government of India has changed and the State is today distancing itself from commercial activities and concentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdev Singh is not in existence at least for the time being, hence, there seems to be no need to further expand the scope of “other authorities” in Art.12 by judicial interpretation at least for the time being. It should also be borne in mind that as noticed above, in a democracy there is a dividing line between a State enterprise and a non-state enterprise which is distinct and the judiciary should not be an instrument to erase the said dividing line unless, of course, the circumstances of the day require it to do so”.((2005) 4 SCC 649 @p.684)
12. The minority view in Zee Telefilms Limited, voiced by Sinha, J. preferred to adopt a new approach to interpretation of the Constitution. The Constitution, according to him, had to be interpreted in the light of our whole experience and not merely on the basis of the law as prevailed at the commencement of the Constitution. He points out that the feature that the Board has been allowed to exercise the powers enabling it to trespass across the fundamental rights of a citizen is of great significance. Referring to the observations in Sukhdev Singh’s case he states that if the development of the law is to be given full effect, it is not only the functions of the Government alone which would enable a body to become a State but also when a body performs Governmental functions or quasi-governmental functions as also when its business is of public importance and is fundamental for the life of the people. This is not to say that every private body carrying on a business of public importance must be a State....what matters is the quality and character of functions discharged by the body and the State control flowing there from.((2005) 4 SCC 649 @ p.696) In adopting this view, the learned Judge found great merit in the reasoning of the Queen’s Bench in R v. Panel on Take-overs and Mergers, ex p Datafin pic (1987(1) All. ER 564) that a body, although self regulating, if performs a public duty by way of exercise of regulatory machinery, a judicial review would lie against it.
13. While the approach of the minority is no doubt one that will expand the concept of “State” to embrace entities that were hitherto held to be private bodies, it is relevant to note that even in the United Kingdom, the courts have been reluctant to carry forward the step taken in ex p Datafin on account of the difficulties that would be faced in drawing the “dividing line” between authorities who would come within the purview of judicial review and those who would stand outside it. The observations of the Supreme Court in Sukhdev Singh’s case, as regards the persons against whom protection of fundamental rights are guaranteed under the Constitution, should serve to remind the judiciary that the rights of one person against another- who does not wield any statutory power or carry on any function affecting the public in general - have not been exalted to the status of fundamental rights under the Constitution. Barring an exceptional case where, for example, the body in question enjoys monopoly status that is either expressly or tacitly protected or recognised by the State and exercises powers that are akin to that exercised by a State, a private body, functioning without any administrative, functional or financial control by the Government, cannot be conferred the status of a “State” for the purposes of Art.12.
14. Four years have elapsed since the decision of the Supreme Court in Zee Telefilms Limited and subsequently decided cases (14 . Lt. Governor of Delhi v. V.K.Sodhi- (2007 (4) KLT SN 37 (C.No.39) SC = JT (2007) 10 SC 137); State of U.P v. Radhey Shyam Rai - (JT (2009) 3 SC 393); M.P.State Co-o perative Dairy Federation v. R.K.Jamindar (JT (2009) (suppl.) 6 SC 263.) reveal that the law with regard to the interpretation of the term “State” under Art.12 continues to be that as laid down in Pradeep Kumar Biswas and Zee Telefilms Limited. The development of the concept of “State” has been through the inclusion of instrumentalities and agencies of the Government in the definition of “State” and a continuing search for those bodies who function as “centres of power” in their relationship with the public at large, irrespective of whether the source of their power is statutory in origin or sui generis. With concepts such as Globalisation, Liberalisation and Privatisation being ritualistically and fervently chanted as the new economic mantra, we could well see private “centres of power” emerging in a new world. Will the judiciary then adopt an activist approach and endorse the minority view in Zee Telefilms?
Advocate Sri. P.Muthukrishna Kurup :Taliparamba Bar’s Most Valuable Asset
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
26/10/2009
Advocate Sri. P.Muthukrishna Kurup:
Taliparamba Bar’s Most Valuable Asset
(By T.P.Kelu Nambiar, Sr.Advocate, High Court of Kerala)
Felicitation Speech sent, by Senior Advocate Sri.T.P.Kelu Nambiar, High Court of Kerala, Ernakulam, to be read out at the function, on October 24, 2009, at Taliparamba, to honour Advocate Sri P. Muthukrishna Kurup, on the occasion of the Golden Jubilee of his Law Practice.
I should have been there, on a nostalgic trip, for the felicitous festival, under the ‘Court’-yard tree, a ‘Special Day’ for the lawyers of ‘my’ ‘North Malabar’, had it not been for the reason that I am travel-tied at perfect eighty-two, pushing ponderous eighty-three.
The advocacy-fest, the 50th anniversary of robing black, raising curtains for Act II, of Taliparamba bar’s most valuable asset, Advocate Sri.Muthukrishna Kurup, with respect, and ‘my Muthu’, with love, stands marked by a highlighter.
A lawyer of mature greatness and solid reputation, high on admiration, the best of the best, beyond compare, possessing character, integrity, perfect communication skills, good values and positive attitude, Sri.Muthukrishna Kurup could claim the brains of Blaise Pascal. This, in brief, is the timeline of Sri.Kurup’s professional career. Any honest lawyer would wish to trade places with him. He did not succeed by accident, but by upgraded endeavour; with strength of will and depth of desire, improving the idiom of the legal profession. For Sri.Kurup, a lawyer’s next stop was not ‘the Bench’, for the Bar made him proud as a lawyer; and he is a distance-runner lawyer. He is not an ‘as you like it’ lawyer. He is a ‘ready reference’ to junior lawyers.
Sri.Muthukrishna Kurup’s older brother, late, lamented, Sri.Vijayagopala Kurup and I, were class-mates, sadly, not many people know what a loving friend ‘Vijayan’ was. I cherish the opportunity of meeting and talking to veteran advocate, the late Sri.K.V.Sankaran Nair, father of the Kurups, an indomitable presence at the Taliparamba bar. Memories will remain forever.
David Pannick needs no introduction to Judges and Advocates. He wrote ‘JUDGES’, in 1987, and, ‘ADVOCATES’, in 1992. When it came to 2008, he wrote ‘Tales of Unpersuasive Advocates and Injudicious Judges’, and ‘legal entertainment’. See, how the past meets and greets the present. Sri.Muthukrishna Kurup, an edited advocate, cut to the top, a complete lawyer, and I, liberally wandering through ‘legal’ life with my blue pencil, today witness a pockmarked legal profession, advocacy blackmarket, advocacy going under hammer, advocacy share-market, ‘ commercial-break’ by wanderer advocates, news-anchor lawyers, advocacy on extinction radar, ‘dialogic judicial activism’ by Judges, Judges hurling insult by making ‘raspberry’ sound, domination and submission threat by judges, ‘luxury break’ of judges, and the like.
These days, lawyers and Judges go on about treating triumph and disaster just the same, as Rudyard Kipling did, trying to write history on history.
Sri.Muthukrishna Kurup and I still follow, and will go on following, God willing, ‘classical’ advocacy, not cloud computing lawyering, because advocacy is not crabs and coconuts. We hear and follow echoes of the titans, whose hearts burnt out on account of work-related stress in the profession, with feelings of elation, even at this stage, unlike the dullness of a retiring Judge. We “Row, row, row the Boat” of the legal profession.
I take this opportunity to remind the advocates associations everywhere, that they are the sentinels on guard, for the protection of the prestige of the profession; and not mere ward-robes for lawyers.
I dare say, Sri.Muthukrishna Kurup is not ready for defeat by retirement. I wish, and pray, he stays in focus in the profession; and scores many wins as a shining ‘silk’.
I remain grateful to the providers of this opportunity.
All heart to you. Thank you.
ICT and Right to Education
By A. Mohamed Mustaque, Advocate, M.K. Associates, Ernakulam
26/10/2009
ICT and Right to Education1
(By A. Mohd. Mustaque2)
The Division Bench of Kerala High Court in Executive Director, I.T. School Project v. Saranya (2009 (3) KLT 824) overruling Judgment of Single Judge held that it is the matter for policy of the Government to create posts to impart IT education and court cannot decide such matter and further held without any legal right, mandamus cannot be issued to create a post to teach information technology. The matter pertains to IT education policy in Kerala. Learned Single Judge was of the view after taking note of great relevance of information technology that the scheme I.T@ school should be revamped and updated, so as to achieve the goal of creating a new generation of thinkers, professionals, scientists, technologies etc, among students. The direction of learned Single Judge to create adequate posts of qualified teachers in view of the need and relevance in modem world is set aside by the Division Bench.
The purpose of ICT in education is generally to familiarize students with the use and workings of computers, related social and ethical issues and more importantly to have access to information.
In a world which has become a village offshoot of information technology commonly referable as acronym ICT (Information, Communication and Technology) created new have and have-nots postulating disparity, gap, unequal among its citizenry, is grave concern of policy makers.
In a country of a billion people where poverty prevents access to basic education, government funded schools are generally presumed to help to succor the need of the deprived, underprivileged who have no access to have privileges or facilities enjoyed in the Public school. Right to education declared in Unnikrishnan’s (Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (1993) 1 SCC 645) case is not a mere wishful epitome to seek entry for learning or education. Right to education certainly poses to have qualitative inputs in education as well. Right to education will be a mirage if they don’t have qualitative access to education to bridge with others. Students who cannot afford to have a square meal in a day cannot think about having a computer. The students in Public schools virtually have all the facilities to reap the benefits of ICTs. Thus there is a real danger that use of ICTs can further marginalize groups already excluded or on the edge of educational practices and innovations. On the other hand, with supportive policies and careful planning and monitoring, ICTs in Government schools hold out the promise of facilitating greater inclusion of such groups.
Revolution of ICTs resulted in digital divide. The Digital Divide separates those who are connected to the digital revolution in ICTs and those who have no access to the benefits of the new technologies. This happens across international frontiers as well as within communities where people are separated by economic and knowledge barriers.
In a quest to ensure that everyone can benefit from the opportunities from ICTs initiatives have come from U.N., The UN General Assembly Resolution 56/183 (21 December 2001) endorsed the holding of the World Summit on the Information Society (WSIS) in two phases. The first phase took place in Geneva from 10 to 12 December 2003 and the second phase took place in Tunis, from 16 to 18 November 2005. One of the common visions of the Information Society laid in Geneva Declarations is
“We recognize that young people are the future workforce and leading creators and earliest adopters of ICTs. They must therefore be empowered as learners, developers, contributors, entrepreneurs and decision-makers. We must focus especially on young people who have not yet been able to benefit fully from the opportunities provided by ICTs. We are also committed to ensuring that the development of ICT applications and operation of services respects the rights of children as well as their protection and well-being”.
The purpose of the World Summit on the Information Society is to ensure that these benefits are accessible to all while promoting specific advantages in areas such as e-strategies, e-commerce, e-governance, e-health, education, literacy, cultural diversity, gender equality, sustainable development and environmental protection. Plan of action based on the Geneva Declaration is to improve connectivity and access in the use of ICTs in promoting the objectives of the declaration, to be achieved by 2015. These targets are taken into account in the establishment of the national targets, considering the different national circumstances: One of such target is to connect universities, colleges, secondary schools and primary schools with ICTs. At WSIS Geneva, world leaders declared “We are fully committed to turning this digital divide into a digital opportunity for all, particularly for those who risk being left behind and being further marginalized”.
In Tunis Summit Governments reiterate their unequivocal support for the Geneva Declaration of Principles and Plan of Action adopted at the first phase of the World Summit on the Information Society in Geneva in December 2003.
Our Constitutional ethos to have inclusive society, is not different from the declaration of Geneva. Education is the primary agent of transformation towards growth and development, undoubtedly Art.21 cannot be read in isolation to understand requirement of ICTs in modern world to underpin the declaration in Mohini Jain case (Mohini Jain v. State of Karnataka (1992) 3 SCC 666.) that “right to education flows from right to life”. Any Government must be committed to quality education at the elementary school level for creating foundation for sustainable development. In Unnikrishnan case it was held “Art.21 act as shield against deprivation of life or personal liberty. The personal liberty and life have come to be given expanded meaning. It would therefore, not be incorrect to hold that life, which means to live with dignity, takes within education as well”. In Ashok Kumar case ( Ashoka Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1.) Hon’ble Supreme Court observed that
“It has become necessary that the Government set a realistic target within which it must fully implement Art.21A regarding free and compulsory education for the entire country. The Government should suitably revise budget allocations for education. The priorities have to be set correctly. The most important fundamental right may be Art.21A, which, in the larger interest of the nation, must be fully implemented. Without Art.21A, the other fundamental rights are effectively rendered meaningless. Education stands above other rights, as one’s ability to enforce one’s fundamental rights flows from one’s education. This is ultimately why the Judiciary must oversee Government spending on free and compulsory education.”
Arts.21A, 41, 45 and 46 must also be read in the light of observations in para. 19 of Unnikrishanan case where Supreme Court poised to reason to answer why Art.21 did not positively confer a fundamental right like in Art19 “great concepts like liberty and life were purposefully left to gather meaning from experience”. Well in this cobwebbed world our experience is not different, ICTs binds every sphere of our life.
Our goals may or may not be achieved through recently enacted legislation by Parliament “The Right of children to free and compulsory education”, but even the absence of statutory provisions; it does not deter Constitutional Courts to invoke Art.226 or Art.32 to transcend human capabilities to its fullest exhortations of Art.21. We must note ICTs are not technological solutions to our challenge but profoundly educational one.
Foot Note:
1. This article is intend to comment only on Right to Education and not intended to comment scope of judicial review by the court on IT education policy of Government.
2. An advocate practicing at High Court of Kerala can be reached on any comments on this article mustaque@mklegal.org
Some Reflections on the Decision in w.p. (c) 12707 of 2005
By Jacob Thomas, Advocate, TVM
19/10/2009
Some Reflections on the Decision in w.p. (c) 12707 of 2005 --Decided
on 29.7.2009Abraham v. State of Kerala - 2009 (3) KLT 659 (F.B)
(By Jacob Thomas, Advocate, Thiruvananthapuram)
This is with reference to the decision of a Full Bench of the Hon’ble High Court reported in 2009 (3) KLT 659 (F.B). According to the stated facts the 3 petitioners were appointed in the cadre of High School Assistants in Mathematics, Science & Sanskrit on 30.6.1997, 7.6.1998 and 4.6.1989 respectively in an Aided High School. The 4th respondent was appointed as High School Asst. (Social Studies) on 1.6.1977. While 4th respondent became a surplus hand during 1997-98 being junior most among Social Studies hands, she was deployed to Government H.S.S. on 16.12.1997. Later she was re-posted to the parent school against a retirement vacancy in that school and she re-joined on 1.6.1999. In the seniority list of H.S.A.’s of the parent school as on 1.4.2004 she was shown as senior to the petitioners. The same is challenged and the 1st Petitioner also claimed right to the post of Headmaster in preference to the 4th respondent on the ground that the 4th respondent does not have continuous service in the post of H.S.A in the parent school; her service having been broken between 16.12.1997 and 31.5.1999.
The Full Bench dealing with the case found that the 4th respondent cannot claim the appointment of Headmaster in the vacancy in the parent school, on the ground that protected teachers will lose seniority in the parent school on being deployed to Government school and that they cannot count their period of service on deployment for purpose of seniority in the parent school even after their return to the school. In reaching the finding the Full Bench had discussed the series of decisions of the Hon'ble High Court starting from cases reported in Manager, Mar Sleeba U.P. School v. State of Kerala (1990 (1) KLT 626), up to Nanu v. Balan Master (2006 (4) KLT 702). In para. 8 of the judgment, the Bench found that all the reported decisions of the Division Benches of this Court have taken the view that a teacher’s seniority will be affected on their being deployed on protection.
I am afraid, The Full Bench failed to take note of the amendment to R. 1, Chap.XIV A of Kerala Education Rules dealing with the conditions of service of Aided School teachers introduced (by the G.O.(P) 112/74/G Education Department dt.11.6.1974) as sub-r.(4) in R.1, notified in Kerala Gazette No. 35 dt. 27.8.1974 Part 1). A conjoined reading of sub- rr.(1) and (4) of R.1 Chap. XIVA KER, will go to show that as far as High School classes are concerned appointment shall be made with due regard to the requirement of subjects as determined by the Director of Public Instructions, with reference to the curricula of studies. Sub-r.(4) of R.1 enjoins on the Director power to issue instructions as he may deem necessary for giving protection to such teachers.
i) who are in service and who would have continued in service, and
ii) who stand relieved as per R.49 or 52 or on account of termination of vacancies and who would have been eligible for reappointment under R.51A, had there been no change in the requirement of subjects.
Thus it may be seen that the statutory rule provides a specific clause for protection of teachers in High School Classes. A distinction is to be drawn between teachers in L.P./U.P. School and High School classes in the manner and nature of protection. In L.P./U.P. schools there is no determination of requirement of subjects. There, only the junior hand is retrenched/terminated for want of vacancy/post. In such cases loss of seniority does not occur. The series of decisions referred to and relied on by the Hon’ble Full Bench dealt with the question of seniority of teachers in U.P. School, except of course Leelabai v. Anandavally (2002 (3) KLT 942), and Aleyamma v. Kunjamma Jacob (2007 (1) KLT 1049). Even in the case of the above two decisions the court had no occasion to take note of the above amendment made to R.1 Chap. XIV A.
Coming to the amendment introduced to the R. 1 of Chap. XIV A as sub-r.(4) it may be seen that whenever the Director of Public Instruction makes appointment of teachers in High School classes with due regard to the requirement of subjects (with reference to curricula of studies) he shall also issue instructions giving protection to eligible teachers. This protection envisaged in the sub-r. (4) is classified under two groups.
(i) Protection to teachers who are in service and who would have continued in service.
(ii) Protection to teachers who stand relieved as per R.49 or 52 or on account of termination of vacancies and who would have been eligible for reappointment under R.51A, had there been no change in the requirement of subjects.
Obviously, protection guaranteed to teachers in group (i) referred to above is protection to continue in service. The deployment of such teachers in High Schools should not prejudice their rights/benefits/privileges accrued by virtue of their prior service. The word ‘deploy’ literally means to extend (a military-unit) especially in width, to place in battle formation or appropriate positions; to spread out in line or arrange strategically. In effect the deployed unit does not lose its character, content or relation with the original formation. Deployment does not contemplate a break with the original unit.
For the group (ii) of teachers referred to above, their protection is treated differently under the sub-r.4 (ii). This group is referred to in R.49 or 52 Chap. XIV A KER and under the sub-r.4 (ii). This group is referred to in R.49 or 52 Chap. XIV A KER and their case is dealt with for reappointment under R.51A. In short the teachers coming under class (ii) are retrenched teachers or teachers facing termination for want of vacancy.
At any rate, the reading of the sub-r. (4) of R.1 makes it clear that senior teachers of a High School holding a permanent post and their service having been approved by the competent authority, is ensured the right to seniority in the original post as on the date of deployment. They have seniority assured in the grade/post/unit. The rights, benefits and privileges they had enjoyed by virtue of their permanent holding of the post, as on the date of determination of requirement of subjects should be intact by the protection envisaged by the sub-r. (4) of R.1 Chap.XIVA K.E.R. The R.37 Chap. XIV A K.E.R. does not mention about any forfeiture of seniority of a teacher. When the statutory rule provides that the teachers who are in service and who would have continued in service (but for determination of requirement of subjects) shall be protected, what is contemplated is protection of their rights to be in service and to continue in service. Their service cannot be treated as broken by reason of the deployment in the given circumstances.
It is worthwhile to point out that the leave rules applicable to Aided School teachers reckon certain appointments made/held outside the normal teaching line as period on duty. The service outside the normal teaching line is not treated as break in service. In the matter of protection provided under sub-r.(4)(i) of R.1 Chap.XIV A they are in the teaching line under protection provided under the scheme of statutory rules.
It is not at all justified to deny them their service and/or seniority under any pretext.
It appears that the existence of the above amendment to R. 1 Chap.XIVA K.E.R. w.e.f 11.6.1974 was not pointed out before the Full Bench of The Hon’ble Court by any of the parties and hence the present decision. It appears a fresh look on the entire aspects by all concerned will advance the cause of justice, equity and fairplay.
2009 (3) KLT 72 - Abdul Salam v. State of Kerala -- Whether Requires Re-Consideration
By K.V. Jayachandran, Advocate, Ernakulam
19/10/2009
2009(3) KLT 72- Abdul Salam v. State of Kerala --
Whether Requires Re-Consideration
(By K.V.Jayachandran, Advocate, Ernakulam)
From the facts it is discernable that the sale took place on 14.1.2004 and the auction purchaser deposited the sale consideration and the sum for purchase of stamp papers. The auction purchaser in 2004 itself approached the execution court filing petition to set aside the sale under O.XXI R.90 on the ground of fraud and material irregularity. The Execution Court upon consideration of rival contentions set aside the sale holding that decree holder concealed the material fact in publishing the proclamation and conducting the sale. The Execution Court also ordered to realize the purchase money together with 6% interest from the decree holder.
In this connection it is worthwhile to note the R.344 of the Civil Rules of Practice. Going by the sub-cls.(2) which reads as follows
“if the sale is set aside under O.XXI R.89 of the Code, the court may make an order for payment by the judgment debtor of any costs or interest, not covered by the proclamation of sale.”
and also sub-cls.(3) which reads as follows
“If the sale is set aside under O.XXI R.90 of the Code, the court shall determine whether any and what party is responsible therefore, and may order such party to pay the costs and expenses of the sale, and make an order that any other party entitled to have the property sold may have the conduct of the sale and may also make an order for the resale of the property.”
In either of the situations contemplated in the above said sub clauses, the Execution Court is having discretionary power to make order for payment of costs/expenses of the sale.
The said cost/expenses of the sale takes in the amount spent for the purchase of stamp paper also. Therefore the Execution Court has the power to order realization of the said amount also from the responsible party, in this case the decree holder. However in this case the Execution Court did not make such an order.
The available facts reveal that the auction purchaser instead of seeking an order for realizing the costs for the stamp paper from the responsible party, decree holder, sought for refund of the said amount and that application is forwarded to the authority under the Stamp Act.
In these circumstances of the case, the course adopted by the Hon’ble Court is doubtlessly correct. At the most it can be said that taking note of the procedural error, the Hon’ble Court could have leniently corrected the same to grant some relief.