The supreme court has been constituted as the protector and guarantor of fundamental rights and

, it cannot consistent with the responsibilities so laid upon it , refuse to entertain applications
seeking protection against infringement of such right.1 This article gives the right to move to
supreme court by appropriate proceedings for enforcement of an aggrieved person seeking to
approach the court.2
A writ of Mandamus is granted to require compliance with a statutory order. A statutory order
must be performed without unreasonable delay and this may be enforced by mandatory order.
Occasionally mandatory order may be sought to enforce non- statutory duty. So also, if public
bodies fail to perform any public duty with which they have been charged, a mandatory order
may be made to compel them to carry it out.3

It is not enough to pray for mandamus that a legal duty is cast on either side, but the petitioner
must satisfy the court that he has a legal right to enforce it. The prayer for mandamus was
refused
Mandamus will lie against any private person or body , when he or it is entrusted with a public
duty, by common law,4 or statute,5 and he or it has failed in the performance of that duty, 6 even
though he or it does not hold any public office.
In this context, it should be noted that while mandamus lies for the performance of public duties
only , when a duty is imposed by a statute, mandamus enforces the performance of such statutory
duty7 even though the duty may not be towards the general public or any section thereof , but
towards the members of private society8 or a private company,9 provided that there is a clear

Romesh Thappar v. State of madras, AIR 1950 SC 124; 1950 SCR 594.
Tilokchand v. Motichand, (1969) 1 SCC 110; AIR 1970 SC 898.
3
Halsburys Law of England, 4th Edn. (Re-issue), Vol-1 Para 135-137.
4
Arunachalam v. Kaleeswara Mills, AIR 1957 Mad 309.
5
State of Haryana v. Subhash , AIR 1953 Mad 556; Shivendra v. Governing Body, AIR 1962 SC 1210.
6
Ganapati v. Tiffins, AIR 1953 Mad 556, Chettiar Firm v. Kaleeswara Mills, AIR 1957 Mad 309; Nagpur
Corporation v. NEL & P. Co., AIR 1958 Bom 498.
7
Halsbury, 3rd edition, Vol. 11, pp.90-91, para.170.
8
R v. Pharmaceutical Society , (1854) 2 WR 220.
9
R v. Carnatic Rail Co., (1873) 8 QB 299; R v. GW Rail Co. (1893) 69 LT 572 (CA); The suggestions to the
contrary in Durgaiah v. Agent , Tandoor Colleries , AIR 1961 AP 400.
2

obligation imposed by the statue as distinguished from a power or authority. 10It has now been
held that to be enforceable by mandamus a public duty does not necessarily have to be one
imposed by statute. It may be sufficient for the duty to have imposed by charter, common law,
custom or even a contract.11
Mandamus will also be issued where the state is in collusion with such private party or
organization,12 or the right of the private party is founded on the illegal act of a public authority
which is liable to be cancelled by Mandamus.13
Mandamus will also issue against a private body or institutions when it acts as an agent or
instrumentality of the sate within the meaning o
But in case of contracts entered into between an individual and the state in the exercise of some
statutory power and breach is complained of is of a statutory obligations , a writ of mandamus
could be entertained.14
It was held that a company being a non-statutory body and one incorporated under the companies
act there is neither a statutory nor a public duty imposed on it by a statute in respect of which
enforcement could be sought by means of mandamus.15
Locus standi
The fundamental rights of the shareholders as citizens are not lost when they associate to form a
company . They can challenge if the legislative measure directly touches the company of which
the petitioner is a shareholder. A shareholder is entitled to protection of Article 19 of the
Constitution.16 The court will not be concentrating merely upon technical objection to the action

10

Cf. Ram Krishan v. Central Bank, AIR 1958 All 413 (415).
Anadi v. Rudani, (1989) 2 SCR 691 (698-701); Director of settlements , AP v. MR Appa Rao, AIR 2002 SC 1598.
12
Sohan Lal v. Union of India, AIR 1957 SC 532.
13
Behari Lal v. Cammr., AIR 1966 All 176 (181).
14
Union of India v. Hariram Shamji, (1974) UJSC 562; Cooverji v. Electric Commissioner, AIR 1954 SC 220:
(1954) SCR 873; Ram Chandra v. State of MP, AIR 1971 SC 128: ( 1970) 3 SCC 647; KM Guruswamy v. State of
Mysore, AIR 1954 SC 592: (1985) 3 SCR 305; Ram and shyam company v. Lotus Hotel, AIR 1983 SC 848 : (1985)
3 SCC 267 ; Gujarat state financial Corpn. v. Lotus Hotel, AIR 1983 SC 848 : ( 1983) 3 SCC 379; Shrilekha
Vidyarthi v. state of UP, AIR 1991 SC 537 : (1991) 1 SCC 212.
15
Praga tools corporation v. CV Imanul, AIR 1969 SC 1306: 1969 (1) SCC 585.
16
RC Cooper v. Union of India, AIR 1970 SC 564; Bennet Coleman v. Union of India , AIR1973 SC 106;
Divisional Forest
11

and deny itself jurisdiction to grant relief to the shareholders when the rights of the shareholders
as well as of the company are impaired .17

Spectrum has been internationally accepted as a scarce, finite and renewable natural resource
which is susceptible to degradation in case of inefficient utilisation. It has a high economic value
in the light of the demand for it on account of the tremendous growth in the telecom sector.
Although it does not belong to a particular State, right of use has been granted to the States as per
international norms.
As natural resources are public goods, the doctrine of equality, which emerges from the concepts
of justice and fairness, must guide the State in determining the actual mechanism for distribution
of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the
rights and obligations of the State vis--vis its people and demands that the people be granted
equitable access to natural resources and/or its products and that they are adequately
compensated for the transfer of the resource to the private domain; and second, it regulates the
rights and obligations of the State vis--vis private parties seeking to acquire/use the resource
and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and
that it does not discriminate between similarly placed private parties.

FLEXTIME

IS NOT A PERSON AND CANNOT INVOKE

ART.32

FOR VIOLATION OF

FUNDAMENTAL

RIGHTS

This question of law can be answered jurisprudentially rather than factually. The concept of
fundamental right revolves around human rights. The natural law philosophers provided theories
over such inherent human rights and sought to preserve them by propounding the theory of social
compact.18 The entrenched fundamental rights have dual aspect attached to it. On one side they
confer justiciable rights on the people who can move the court for the enforcement of such
17
18

Neptune Assurance Co. v. Union of India, AIR 1973 SC 602; RC cooper v, Union of India, AIR 1970 SC 564.
Michael Freeman, Dennis Lloyd, LLyods Introduction to Jurisprudence, (7th ed., 2001), Sweet & Maxwell.

rights.19 Whereas on the other hand it constitutes restriction and limitations on government
action, no matter it is taken by center or state.20
The

Supreme

Court

of

India

in

many

landmark

judgments

such

as

Maneka

Gandhi,21IndraSawhney,22Asiad cases23 have upheld the importance of fundamental rights of

person. This court in Ajay Hasia v. Khalid Mujib24 observed,
It must be remembered that the fundamental rights are constitutional guarantees
given to people of India and are not merely paper hopes or fleeting promises
Fundamental rights have been provided to the individuals for the protection of human rights
against the state. In Daryao v. State of UP25the Court held that,
The fundamental rights are not only intended to protect the individuals rights but
they are based on high public policy. Liberty of individual and protection of
fundamental rights area the very essence of the democratic way of life guaranteed
under the constitution.
Therefore it is humbly submitted on behalf of respondent that the concept of fundamental rights
deal with the concept of human rights against the state and the same cannot be enjoyed by the
state itself. Union of India is a sovereign personality while making laws or policies and hence its
rights as a person cannot be said to be violated. Various judgments and readings from the
scholars also confer the fundamental rights in realm of individualistic right and hence the same
cannot be conferred upon the state itself.
1.2 FLEXTIME HAS NO LOCUS STAND TO FILE THE PETITION UNDER ART.32.

As a matter of right Supreme Court has the duty to grant relief under Article 32 when it is shown
that there is existence of Fundamental right and the same has been violated.
19

M.P Jain, Indian Constitutional law, 898, (6th ed. Rep 2011), Lexis Nexis.
Id.
21
ManekaGandhi v. Union of India, AIR 1978 SC 597.
22
IndraSawhney v. Union of India, .AIR 1993 SC 447.
23
People's Union for Democratic v. Union of India & Others, AIR 1982 SC 1473.
24
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
25
Daryao v. State of UP AIR 1961 SC 1457.
26
Kochini v. State of Madras, AIR 1959 SC 725.
20

26

Unless a question

of enforcement of Fundamental right arises Article 32 does not apply.27 In the present facts the
complaint has been filed against the former Union Ministers, present Union Ministers and other
Civil Servants.28 The complaint was not filed against Union of India as a whole.29 Therefore on
the facts, Union of India does not have any right to move to the Supreme Court in the said matter
as the State does not have fundamental rights and thereby the same cannot be violated.
A write petition under Article 32 in the form of a representative suit or a class suit cannot be
filed unless the person representing and the person represented have same interest in the same
proceeding30 which is not the case in this writ petition.
Airwaves and spectrum constitute public property and must be utilised for advancing public
good. No individual has a right to utilize them at his choice and pleasure and for purposes of his
choice including profit. The right of free speech guaranteed by Article 19(1)(a) does not include
the right to use airwaves, which are public property. The airwaves can be used by a citizen for
the purpose of broadcasting only when allowed to do so by a statute and in accordance with such
statute. Airwaves being public property, it is the duty of the State to see that airwaves are so
utilised as to advance the free speech right of the citizens which is served by ensuring plurality
and diversity of views, opinions and ideas. This is imperative in every democracy where freedom
of speech is assured. The free speech right guaranteed to every citizen of this country does not
encompass the right to use these airwaves at his choosing.

The Supreme Court has held that airwaves or frequencies are public property. Their use has to be
controlled and regulated by a public authority in the interest of public and to prevent the invasion
of their rights . Since the electronic media involves the use of airwaves , this factor creates
inbuilt restriction of its use in the case of any other public property.

27

Ujjambai v. State of UP, AIR 1962 SC 1621.

Fact Sheet 13
29
Id.
30
M. R. Mallick, Writs Law and Practice, (2nd ed., 2010), Eastern Law House.
28

The Supreme Court of India held that, there should be conformity with the principles of natural
justice while interpreting the fundamental right.31
Intrusion in ones
Fourthly, individual subscribers enter into contracts with ISPs and web services which do not
offer any stiff assurances of privacy with regard to IP address details. Also, the directions to ISP
for sharing an individuals ISP logs can be issued only by Secretary of the Department of
Information Technology under the Union Ministry of Communications and Information
Technology.
Here, the above lawful procedure has not been followed by the Wind Entertainment to acquire
Manu Sharmas personal details neither the facts suggest that he has signed any contract with
WindTel which do not offer stiff assurance of privacy as regards to ISP logs.

The test of reasonableness or fairness of a clause in a contract where there is inequality of

bargaining power is another recognised in the sphere of law of contracts. The courts will not
enforce a contract entered into between parties , who are not equal in bargaining power. A
contract is intended to secure a social, and economic justice and confirm to the mandate of
Art.14. Where the inequality of bargaining power is the result of the great disparity in the
economic strength of the contracting parties or where the inequality is result of circumsatnces ,
whether of the creation of the parties or not or where the weaker party is in a position in which
he can obtain goods or services or means of livelihood only upon the terms imposed by the
31

Menaka Gandhi v UoI AIR 1978 SC 597.

stronger party or go without them or where a man has no choice or no meaningful choice , but to
give his amount to a contract or to sign a dotted line in a prescribed or standard form of contract
or to accept a set of rules as part of contract, however unfair , unreasonable and unconscionable a
clause in that contract or form or rules may be. This principle will not apply where the
bargaining power is equal or almost equal and where both parties are businessmen and contract
is commercial transaction.32
In the case of AL Kalra v. P&E corpn. The supreme court observed that article 14 strikes
arbitrariness in executive/ administrative action because any action that is arbitrary must
necessarily involve the negation of equality. One need not confine the denial of equality to a
comparative evaluation between two persons to arrive at a conclusion of discriminatory
treatment. An action per se arbitrary itself denies equality of protection by law.33
In the present case Windtel action of arbitrarily degrading the service quality for Flextime is
unreasonable and discriminatory in nature.
The supreme court held that once a company or a corporation is formed , the business which is
carried on by the said company or corporation is the business of the company or corporation, and
it is not the business of the citizen who get the company or corporation formed or incorporated
and the right of the incorporated body must be judged in that footing alone and cannot be judged
on the assumption that they are the right attributable to the business of individual citizens, and
the same principle would be apply to a society registered under the Societies Registration Act. 34

In order that mandamus may be issued to compel the authorities to do something, it must be
shown that the statute imposes legal duty and the aggrieved party has a legal right under the
statute to enforce its performance.35
The Like any other State action, constitutionalism must be reflected at every stage of the
distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the
32

Central Inland Water transport Corpb. V. Brojo Nath Ganguly, (1986) 3 SCC 156: AIR 1986 SC 1571. See also
LIC of India v. consumer education & research centre , AIR 1995 SC 1811: (1995) 5 SCC 482.
33
AL Kalra v. P&E Corpn. of India , AIR 1984 SC 1361, 1367.
34
Dharam Dutt . Union of India, AIR 2004 SC 1295 ; State trading corporation v. Commercial tax officer , AIR
1963 SC 1811.
35
UmakantSaren v. State of Bihar, AIR 1973 SC 964.

ownership and control of the material resources of the community should be so distributed so as
to best sub-serve the common good, but no comprehensive legislation has been enacted to
generally define natural resources and a framework for their protection. of course, environment
laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest,
air, water, coastal zones, etc.36
At the same time, public duty to be enforceable by mandamus may be imposed by the
constitution, a statute, common law or by rules or order having the force of law.37 In
Unnikrishnan J.P v. State of AP38 it was held that irrespective of the educational institution
receiving aid , it should be held that it is a public duty and absence aid does not detract from the
nature of duty.
Respondent
As per the General Clause Act, 1897, the state includes Union Territory.39 Hence the present
dispute between the Union and Union territory could be adjudicated under article 131. Apart
from that the Petitioner has one more forum i.e. Delhi High Court which it could approach under
article 226 of the Constitution of India, because the scope of article 226 is wider than that of
article 32 of the Constitution of India.40

But it will lie against a statutory corporation or a company which has statutory duties to
perform. A company enjoying the monopoly of carrying on a business under an Act of
Legislature has the trappings of a state and is an authority under article12.41
A mandamus could issue to an official of the company compelling him to carry out the terms of
the statute under which the company was incorporated. Thus a writ of Mandamus could issue
against the company requiring it to continue the supply of electric energy.42

36

Natural Resources Allocation, in Re: Special Reference No. 1 of 2012, (2012) 10 SCC 1
Director settlements , AP v. MR Apparao, AIR 2002 SC 1598: (2002) 4 SCC 638. See also de Smith on Judicial
Review- 1995 edn. At p 167.
38
Unnikrishanan J.P. v. state of AP, AIR 1993 SC 2178: (1993) 1 SCC 645.
39
THE GENERAL CLAUSES ACT, 1897 Section 3 (58).
40
Supra note 12.
41
Biman Kishore Bose v. United Insurance Co. Ltd, (2001) 6 SCC 477.
42
Corporation of the City of Nagpur v. Nagpur Electric Light and Power Ocmpnay ltd., AIR 1958 Bom 498;
Prafulla Chandra v. Oil India Ltd., AIR 1971 Assam & Nagaland 19. See National Seeds Corporation. Employees
Union v. National Seeds corporation, AIR 1972 Del 292; Electro gears ltd v. Rehabilitation Industries Corpn., AIR
1979 Cal 320.
37

It is further submitted The right which is the foundation for invoking this Article must not be
tenuous or completely ephemeral or very slander.43
The rights guaranteed by Copyright Act, 1957 under Section 14 (a) (b) and (c) and that under 14
(d) and (e)44 are of different degree. The exclusive right in the former is to
reproduce the work in any material form whereas the exclusive right in the latter is to make a
copy of the respective subject matter.

43
44

B.L. HANSARIA, WRIT JURISDICTION 14 (Vijay Hansaria rev. 3d ed. 2008).

Section 14, Copyright act 1957.