What constitutes instrumentality of State under Article 12?

Judicial Tests:

Part III of the Constitution comprising Articles 12 to 35 is magna carta of India which secures basic fundamental rights of individuals, citizenry of India, against their infringement by “State”. What is “State”? The term is defined in Article 12 of the Constitution. The definition is inclusive & not exhaustive in character. Besides governments & Legislatures of Centre & States, it also includes all local authorities & “other authorities”. There is not much difficulty in understanding meaning of Central & State governments & their respective Legislatures. Nor is it difficult to understand what are “local authorities” as this term is defined under section 3(31) of the General Clauses Act, 1897. However, it was with respect to the scope of the term “other authorities” that we see a great deal of judicial discourse took place , over a period of time, till the 3- judges’ bench of the Apex Court, for the first time, in Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628= 3 SCC 489= 3 SCR 1014 (following earlier Constitution Benches of 5 judges each in Electricity Board Rajasthan v Mohan Lal , (1967) 3 SCR 377 & Sukhdev Singh v. Bhagatra, (1975) 3 SCR 619) concretized the tests for determination of what constitutes “other authorities” of the State for the purpose of Part III. The Court held that for determining whether a body is an instrumentality or agency of the State, it has to be seen (1) if the State gives substantial financial assistance to it, (2) if the State controls its management & policies, (3) if it enjoys State protected monopoly & (4) if its functions are closely related to government functions. However, particularization of these tests is not exhaustive & with changing times, they are subject to flexibility & adaptability, the Court added. (Para 19) Later, yet another Constitution Bench of the Supreme Court in celebrated case of Ajay Hasia v. Khalid Mujib Sehravard, AIR 1981 SC 487= 1 SCC 722= 2 SCR 79 once again recapitulated the tests for determination of the question at hand which , inter alia, includes existence of deep & pervasive State control over the instrumentality or body. And, finally, seven judges’ Constitution Bench of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology , (2002 (5) SCC 111= 3 SCR 100= Supreme(SC) 503 re-explained Ajay Hasia & the majority of five judges summed up the scope of “other authorities” of the State in these words:

“The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within anyone of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. 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 must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State”. (SCC page 134, Para 40), italics mine; followed in Gurcharan Singh v. Registrar, Co-operative Societies, (2005) 7 SCC 565= (2005) 6 Supreme 459; S.S. Rana v. Registrar, Co-operative Societies, (2006) 11 SCC 634= Supreme (SC) 397[remarking if ‘any of the tests’ in laid down in Pradeep Kumar Biswasmay is satisfied that will bring a body within purview of authority controlled by the State]

Pivotal point:

Pradeep Kumar Biswas has settled that “deep & pervasive State control”, not merely regulatory under the statute or otherwise, is pivotal point of tests to be applied by the Courts in determination of the question whether an entity is organ or instrumentality of the State. (Rajbir Surajbhan Singh v. Chairman, Institute of Banking Personnel Selection, (2019) Supreme (SC) 510) decided on 29-04-2019)

Position of J&K Bank:

Now, what is the position of J&K Bank or the Bank (for brevity) in the light of trilogy of said judicial tests of financial, functional and administrative control by State of J&K? There are two Full Bench/FB judgments of three judges each of the JK High Court on the question whether the Bank is an instrumentality or organ of the State as envisaged under Article 12.  Both the rulings have been delivered in the same well known case of Firdous Ahmad Tanki v J&K Bank. First decision came on 05-12-1995, reported in (1996)KashLJ 21 =(1996) SriLJ 85. Second one was delivered on 03-04-2006, reported in (2006) SriLJ 1= Supreme(J&K) 73. In 1995 decision, all the three judges unanimously, without a dissent, held the Bank instrumentality of the State within Article 12, hence, amenable to writ jurisdiction of the High Court under Article 226 of the Indian Constitution read with Article 103 of JK Constitution. The operation of 1995-judgment was stayed by the Supreme Court in two Civil Appeals Nos: 1874 & 7426 of 1997 filed by the Bank against it. Ultimately, the Supreme Court vide its order dated 4-3-2003 , dismissed the 1995-decision , remitted the matter for a re-consideration by the J & K High Court in the light of the tests set in Pradeep Kumar Biswas ante & cumulative facts of the case that were to be established before the High Court. The Supreme Court though mentioned in its remand order that “the High Court may also take note of the reduction of the share capital of the State, which it is stated, has come to 53%” while re-considering the case, yet their Lordships emphatically made it clear that they were not “expressing one way or the other” on the issue whether the Bank was instrumentality of the State or not. So, in nutshell, matter was returned to the JK High Court to be decided afresh in the light of the tests laid down in Pradeep Kumar Biswas ruling which was delivered by the Apex Court, to be noted here, during pendency of the appeal matter of Firdous Tanki before it.

The opinion of the three judges of the High Court of J& K who reconsidered the matter in the light of the Apex Court remand order was divided. Justice Permod Kohli for self &, Mr. B A Khan, CJ, authored majority opinion, while Justice Y P Nargotra differing with them wrote a separate minority judgment. The judgment, as mentioned above, was delivered on 03-04-2006. It needs to be noted that the Apex Court in its cited remand order directed the High Court to decide the matter afresh “in the light of the judgment of this court in Pradeep Kumar Biswas afore-mentioned after considering the facts of the case in detail…..” To iterate, ratio decidendi of Pradeep Kumar Biswas is “control”, “functional, financial & administrative”, “deep & pervasive”, of the Government over the concerned body that is to be looked into while answering the question. It was penultimate test & only guideline prescribed by the Top Court in Pradeep Kumar Biswas, as explicitly mentioned in its abovementioned remand order for reconsideration of the matter by the High Court. The ratio of both the judgments on three-control-test is summarized below: 

(A)          On Functional Control:

The two judges named-above, on an examination of Articles 69, 71, 72, 75, 76, 84, 118 , held that functional control of the Bank vested in the BODs that was primarily source of all power and control for the management and functioning of the Bank. It was admitted that there are three permanent directors appointed by the government one among whom has to be mandatorily Chairman cum CEO & the permanent/government directors cannot be removed by rotation at the time of AGM & that they can be there on BODs till the pleasure of the government. In contrast, the majority further said, non-permanent/non-government/rotational directors retire /are elected, by rotation at the time of AGM. However, the majority held that (1) since the majority of the directors (5 out of 8 then) are non-government/non-permanent/retiring/rotational directors, only minority of three government/permanent/non retiring/non rotational directors including Chairman cum CEO are direct appointees/nominees of the State government & (2) since under Articles 71 & 118 Chairman though responsible for conducting the management of business of the Bank , he is subject to the control & supervision of the BODs, all this evinces that the functional control lies in the hands & voice of the Bank’s BODs, majority of whom are not government nominees & the chairman is himself subject to the control of the BODs. (SLJ p 12-13, paras 23-29) It is submitted that Article 72 (e) which states that the conditions of service like appointment, removal or suspension, of all employees & officers of the Bank will be decided by the BODs “except in the case of Chairman/Chief Executive Officer of the Bank”, virtually, puts the Chairman beyond the control of the Board, but under that of the State government, as will be clear from the further assessment & evaluation of the cumulative facts of the case.

Y P Nargotra J disagreeing with the two other judges held that despite whatever stated above, the government directors have to tow the line of the Chairman in view of their position being appointees of the government who cannot afford to oppose the Chairman in any matter of management of the business for the following reasons: (1) they are elected by the direct support of the government that holds majority shareholding (53 % then, 59%.3 % at present), (2) as required majority voting power at the time of their election at AGM is vested in the State and (3) they are always under the threat of removal. (SLJ p32, para 76) It is submitted that this view of Y P Nargotra J is correct as at the time any GM/AGM of any public company, it is “the principle of proportional representation of the shareholders”, whether by the single transferable vote or by a system of cumulative voting or otherwise, that plays decisive role in appointment of rotational directors who are non government directors in the case of JK Bank. Since State holds majority shares, its influence in rotational appointment, re-appointment & retirement of non- government directors can never be ruled out. It may not be out of place to mention here that section 162 of the Companies Act, 1956 regarding appointment of directors to be voted individually stand excluded in the CA, 2013. So, it is the majority vote of shareholders that holds the key in appointment of the rotational directors at AGM of the Bank. Further, since Articles of the Bank do not provide for retirement of all directors at the time of AGM, at least 2/3rd of directors are statutorily required to be appointed/get retired by rotation at the time of AGM, (Ref sections 152 (6) (b) & 163 of the Companies Act, 2013; latter has replaced s.265 of CA, 1956) & as mentioned already, 1/3rd are direct appointees of the State Government under the Article 75. Article 81 further provides that the Bank’s Board can remove “any director” by “ordinary resolution” even “before the expiration of his period of office”.  So, to submit, appointment of 2/3rd rotational/non-government directors, or majority of directors in the light of majority judgment, are a statutory requirement where, however, majority voting power of State government is finally decisive.

Y P Nargotra J disagreeing further with the majority of judges observed that as one of the three required number of quorum of any Board meeting has to be a government director under the Article 84, it shows the government is in a position to exercise influence & control on functioning of the BODs. It is totally irrelevant, disagreeing with majority opinion, he says that a government director does not sit in a Board meeting that is going to decide about a government business, since that is just a statutory requirement under section 300 of the erstwhile Companies Act, 1956 (reproduced in section 184(2) of the Companies Act, 2013). This majority view is apparently obiter of the judgment. 

Y P Nargotra J says that the functional control is “required to be seen from the manner in which the Bank functions generally in conducting its business”. The principal authority responsible for managing the business of the Bank is the Chairman who is a government man. Though his functioning is subject to the control of Board but in view of the fact that two Directors are appointees of the Government and remaining are elected with the support of the government, they cannot afford to oppose Chairman. So, the control of the Board cannot be anything but an illusory control. For all practical purposes, therefore, Chairman remains all powerful and in the position where he can bulldoze his way. Thus, government’s functional domination over the Bank through its Chairman and Government nominated & supported directors can be seen to be all pervasive & deep and not mere regulatory in nature as held by the majority at SLJ p 11, 12, 24, para 20-22, 50-53. (See SLJ p32-33, para 76-77 for minority views) It is submitted that Article 72 (e) cited above supports the view of Y P Nargotra J that Board’s control does not extend to the Chairman. Like other banks, the Bank’s banking operations are regulated by the Chief Regulator, RBI   & other regulators under a plethora of laws. But, to resubmit, this regulatory control by RBI has nothing to do with State’s Control on the Bank. Moreover, “to regulate” is totally different from “to control”. The regulators don’t have “control” over the management of the business of the banks. Regulate means “directing the process of operation” of [banking] activity. Control means “exercising power or influence, or direct/indirect power to direct the management and policies of an entity whether by ownership of voting or contract or otherwise”. (Black’s Law Dictionary, 8th edition) Control includes power to regulate. Control means power or authority to manage, direct, superintend, restrict, regulate, govern, administer, subject to influence, to authorize use of agency or instrumentality. (Words & Phrases, Permanent Edition, Volume 9A, West Publishing Co, 1984, pages 4-5) It is submitted while RBI & other regulators exercise regulatory or supervisory control on the Bank[s] under the related laws, the State exercises deep & pervasive control on the Bank under its Articles of Association as explained above. 

Nature of functions the Bank performs:

Apart from the main test of government-control over the Bank, the High Court also discussed in detail the Bank’s operations/activities/duties/functions. The majority remarked: “The nature of activities” carried on by the Bank was “only determinative factor to bring it within purview of instrumentality or authority under Article 12”. (SLJ p 9, para 16) It is respectfully submitted that nature of the Bank’s activities was not the only determinative factor since the Top Court clearly held that “deep & pervasive control of the government is to be determined on an aggregate or cumulative effect of all the relevant factors”. (Ramana Dayaram Shetty, SCC p 511, confirmed in Pradeep Kumar Biswas, SCC p 152, italics mine) But as this question of the Bank’s functions was raised by the Bank’s counsel, naturally the Hon’ble HC has addressed to it which seems to be obiter dictum, not ratio decidendi, of the judgment for the reasons mentioned above.

The majority compared the Bank’s commercial activities with a private person dealing in grocery items or eatables who, in carrying on of such activities, needs registration, etc, under certain local laws & appoints some employees for “carrying on business activities for personal gain, without any public duty, though there may be public element in his/its functions or activities”. (SLJ p 24, para 50). It is submitted that besides usual banking functions, the Bank is providing specialized services to the public at large & the State government. It is bankers to the government of J&K. All government business is transacted solely through the Bank & not through any other “private” sector bank. The Bank collects electricity bills & other duties on behalf of the government. The State government’s all credit schemes like Seed Capital Fund Scheme & others for addressing unemployment & economic upliftment of the people are implemented through the Bank & not through any other “private” sector bank operating in the State. In terms of the Government Orders including Circular dated 15-12-2015, the Bank handles all government payments to individuals and indirectly controls actual payment of credited amount. The Bank is the only bank in India which pursuant to the directions of the State government implemented National e-governance programme (NEGP) of Government of India called Common Services Center (CSC) Scheme & is running 1109 Common Service Centres called Khidmat Centres. Following an agreement signed between State Government & the RBI, the JK Bank, as the government company, has been entrusted with the job of acting as an agent of the RBI for conduct of general banking business of the State Government. All this shows that the State government has conferred upon the Bank “monopoly” as far as the government business in the State is concerned for which single reason it cannot be compared with a retail grocery or other shop of a private individual.  It is submitted that nature of activities cannot be used as determinative factor for deciding if JK Bank is  an organ of the State because its functions & operations are, then, no way different from those of all nationalized public sector banks which are instrumentalities of the CG & amenable to writ jurisdiction of the SC & HCs. So, it is not nature of activities that answers the question. The real test to be applied is “control” by the State over the Bank as held in Pradeep Kumar Biswas. There are several private banks in India that do not have any kind of pervasive control, direct or indirect, by the government &, as such, can’t be brought under the purview of Article 12.  It may be noted that banking services & functions have an element of public utility in them as they are available to the public at large. The GOI has been declaring banking services as Public Utility Services for a period of six months each under Industrial Laws for several years vide a number of  notifications latest being SO 1614(E) dated 18-04-2019. For the aforesaid facts & reasons, it is submitted, the Bank is discharging public functions which are closely related to governmental functions. Moreover, great jurist of India, Justice Krishna Iyer, has pithily stated:  

 “Imagine the possible result of holding that a government company ………….not State …… which are government in fact but corporate in form. If only fundamental rights were forbidden access to corporations, companies……which act as agencies of the administration there may be break-down of the rule of law and the constitutional order in a large sector of government activity carried on under the guise of jural persons. It may pave the way for a new tyranny by arbitrary administrators operated from behind by government by unaccountable to Part III of the constitution. …….. Government corporations are mammoth organisations. If Part III of the Constitution is halted at the gates of ….. dangerous to exonerate corporations from the need to have constitutional conscience….” (Som Parkash Rekhi v. Union of India, AIR 1981 SC 212)

Mr. Justice K K Mathew in Sukhdev Singh v. Bhagat Ram, (AIR 1975 SC 1331 Constitution Bench of 5 judges) has also summed up the position in these words:

“A finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as State action.”(Italics added)

 This & other parts of the judgment of K K Mathew J in Sukhdev Singh ante have been massively quoted & relied upon by Mr. Justice P N Bhagwati who authored judgment in Ajay Hasia & who had also previously in 1979 given judgment in R D Shetty case.

In the light of new trends in law, the functions of the Bank cannot be anything other than “public functions”.

“A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways…..”(Judicial Review of Administrative Action (5th edition) by de Smith, Woolf & Jowell, Chapter 3 para 0.24, quoted with approval in Binny Ltd v. V. Sadasivan, AIR 2005 SC 3202= 6 SCC 657 & Ramakrishna Mission v. Kago Kunya, (2019) Supreme (SC) 363)

 Is the Bank a “private person” ?:

The majority in Firdous Tanki held that as the JK Bank was a “private person”, or what we call “private company”, not discharging any public functions, the HC cannot exercise its power of judicial review under Article 226 against it if the Bank’s employees if aggrieved by the orders of the Bank’s management because there is no violation of any “statutory duty” on the part of the Bank. At the most, it may be called violation of contractual obligations for which the employees can seek remedy in civil courts. (SLJ p 24-25) It is submitted that J&K Bank cannot be compared to a “private” person or company. It is a listed Government “Public Company”. Of course, not formally brought under the PSU categorization by the State government, (except SAC decision of November, 2018) & with a license of “old generation private sector bank” under section 22 of the RBI Act, 1934  which [license], however, will not change character of the Bank from a Public /Government company to a Private /non government banking company. The Apex Court has on a survey of authority held that “authority” in Article 12 is for enforcement of fundamental rights whileas this term used is Article 226 is not confined to Article 12 only and that authority in Article 226 must receive a liberal interpretation. So, a writ is maintainable under Article 226 even “against a private body provided it discharges public functions”. (Rajbir Surajbhan Singh v. Chairman, Institute of Banking Personnel Selection, (2019) Supreme (SC) 510) decided on 29-04-2019) It was also noted in Zee Telefilms Ltd v. Union of India, (2005) 4 SCC 649: “when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226” which is much wider than Article 32. It is already respectfully submitted that the JK Bank is discharging “public functions” for the reasons/facts mentioned above.

The majority made a reference to some judgments of the Apex court to support its opinion that the Bank was a private person not amenable to writ jurisdiction under Article 226. It is submitted that the facts of those cases were different from that of the Firdous Tanki case. 

For example, in Zee Telefilms Ltd v. Union of India, (2005) 4 SCC 649, it is true that BCCI was not held as organ of the Central government by the Top Court. But it is equally true that in that case , no part of the share capital of the BCCI /Board was held by the central government; no financial assistance was given by government to meet the whole or entire expenditure of the Board; no financial control; CG exercised certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board was construed by the Top Court as not an administrative control but purely regulatory in nature. Again on facts Federal Bank Ltd v. Sagar Thomas, (2003) 10 SCC 733 was different. In that case, Federal Bank was held as private bank as State had no control of the affairs and management of that bank which had its own resources to raise its funds without any contribution or shareholding by the State. Its Board of Directors were elected by its shareholders, out of 10, seven were elected by general body of private shareholders, two co-opted by Board & one nominated by RBI. The bank did not enjoy monopoly status in banking business with the State. Third case cited by the majority was General Manager, Kisan Sahkari Chini Mills Ltd v. Satrughan Nishad , AIR 2003 SC 4531 where on a perusal of bye-laws of a sugar mill, the SC held that as the ratio of the nominees of State Government in the managing committee of the sugar mill was only 5 out of total 15 members, as 2/3rd members decided policies of the mill without State Government having any role in issuing any direction or policy to the Mill & & as the role of the UP State Co-Operative Federation, which was the apex body of Sugar Cane growers in general, was only advisory and to guide its members, the mill was not authority of the State.  

It is relevant to mention here that the concept of instrumentality or agency of the Government depends upon the essentiality and overwhelming nature of combination of factors in identifying the real source of governing power, if need be, by piercing the corporate veil of the entity concerned. (Mysore Paper Mills Ltd v. Mysore Paper Mills Officers Association AIR 2002 SC 609 = (2002) 108 CompCas 652= 2 SCC 167 Para 11-12)

(B)          On Financial Control:

The majority held that  as (1) only 53% (then, now it is 59.3%) of share holding was with the government, (2) the government has itself had borrowed huge overdrawing from the Bank, (3) the Bank had advanced huge money to the public, and (4) huge funds were at its disposal through public issue/ share equity and deposits, the Bank was totally “financially independent” of any State control & instead it was extending a helping hand in meeting financial exigencies of the Government . So, the State Government had not any financial control over the Bank. (SLJ pages 13-14, paras 30-32) Disagreeing with two judges, Y P Nargotra J observed that the State that owns 53% of the share capital in the Bank [at present it is 59.3%] is more than the minimum share capital of 51% required for the Bank to be qualified as a government company. The government cannot by equity issues even reduce its required share capital of 51% because thereby it will lose its financial dominance over the Bank & the Bank will lose character of a government company. The investment made in huge share capital by the State cannot be termed as its simple and pure investment in the Bank for earning profit. All this indicates the State’s complete financial domination over the Bank. (SLJ page 31, para 73) It is submitted that when the matter of Firdous Tanki was pending with SC, the State government held 79% + share holding in the Bank which was reduced to 51% during the same period by de-investment by the State government by first equity issue of 1998. Since it happened during pending of the Bank’s appeals against 1995-FB order of JK High Court , when the case came up for hearing in the SC, the SC, at the submission of the Bank’s counsel, noted reduction in share capital in its cited remand order. The State Government’s equity in the Bank was at 53% when in 2016-2017, Mr Drabu as then FM of the State inducted additional 532 Cr in it to raise State’ s equity  to present 59.3% thereby reassuring & tightening “strategic” “financial control” of State on the Bank. (GK dated 12-01-2017)

 (C) On Administrative Control:

Majority noted that the State Government has “undoubtedly” “absolute authority & power under the Articles” to appoint three Directors on the Bank’s BODs and one of its nominees is “necessarily” to be the Chairman. But, merely, because the Chairman is a government nominee & the government has at least 1/3rd of permanent or non–rotational directors on its Board is not enough to draw an inference that the government has any administrative control over the Bank. The Bank’s administration is run in accordance with Articles, the provisions of the Companies Act, policies and directives of the RBI.  The Bank is managed by BODs and all decisions are taken by their majority. Chairman though is empowered to carry on the business of the Bank is to be deemed as “either an agent of the Board or its delegate”. (SLJ p 14, para 33) But the minority view differed with it by observing that the State government directly exercises administrative control over the Chairman and its two directors who in terms of the Articles cannot be removed except by government itself. The BODs is under the strong domination of the Chairman. Therefore, the government is in a position to maintain its administrative control over all the functions and functionaries of the Bank for the reasons mentioned already above. (SLJ p 33, para 78-79) It is submitted that the State’s administrative control on the Bank is too deep & pervasive which is proven by a number of facts such as: (a) The Bank being a government company has been subject to the audit control of the State Audit Committee & CAG of India. The State government’s Committee on Public Enterprise has power to direct the Bank’s authorities to appear before it and carry out the instructions and directions for ensuring speedy recovery of loans advanced by the Bank. (b) The State government has removed so far two Chairmen of the Bank before expiry of the term of their office. First Mr. H A Drabu was asked to tender resignation by the State on 27-08-2010. Second. Mr. Parvez Ahmad was sacked by the State Administration headed by the Governor on 08-06-2019. These are not insignificant developments. These developments are very significant evincing beyond a pale of doubt that the State government exercises deep & pervasive control under the Articles on the Bank’s functioning & administration. 

Conclusion: 

Law is what the Constitutional Courts say. As seen above, in 2006, J&K High Court by a majority of 2:1 held the JK Bank not an organ or instrumentality of the JK State under Article 12 of the Constitution. Y P Nargptra J differed with the two judges, Permod Kohli J & B A Khan CJ, quite strongly on all key points of the judgment. That Y P Nargotra J dissent has left the door open for reconsideration of the majority judgment as the Supreme Court Justice H R Khanna’s powerful dissent in famous habeas corpus case, titled Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207= 2 SCC 521, that fundamental rights cannot be curtailed by any Parliamentary Amendment during emergency even, became the law of India later. Mr. Justice H R Khanna, while disagreeing with majority of four judges, noted that “judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice” ( Para 594) In the end, H R Khanna, quoted great jurist, Chief Justice of American Supreme Court, Charles Evans Hughes, what he had said in 1930s: “A dissent ……is an appeal to the brooding spirit of the law to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”. 43 years after, the intelligence of a future day has finally prevailed as 9 judges’ bench in landmark, Privacy case, titled Justice K S Puttaswamy (Retd) v. Union of india, AIR 2017 SC 4161= 10 SCC 1, held that habeas corpus case was wrongly decided & that dissent of Justice H R Khanna was correct.  In the words of a noted Supreme Court lawyer, Sanjay Hegde: “A dissenting judgment is an invitation to a future larger bench to hold that the majority got it wrong and the minority was correct.” Justice R F Nariman in his concurring judgment in Privacy case, followed Charles Evans Hughes above quote & remarked that there have been “three great dissents” of the Indian SC. One dissent of Justice H R Khanna mentioned above. Second Justice Fazl Ali‘s dissent in A.K. Gopalan v. State of Madras, (1950) SCR 88 & third dissent of Justice Subha RAo in Kharak Singh v. State of UP, AIR 1963 SC 1295. Dissenting judgments ensure that Constitution is a living, breathing document. It is a sign of what is possible: if one judge can be convinced today, then tomorrow, perhaps two, or three, or even four might be. (Hindustan Times dated 20-11-2017)

Submission:

In the light of foregoing critical evaluation, the majority judgment of FB in Firdous Tanki (2006), it is respectfully submitted, needs a review & reconsideration by the Hon’ble High Court of J&K. “In reviewing and revising its earlier decision, the Court should ask itself whether in the interest of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised”. There is a huge catena of judgments of the Apex Court & High Courts that show that the Constitutional Courts have inherent powers under the Constitutional provisions [& even procedural laws] to recall their own judgments on several grounds and the Court is “not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.” Per Lily Thomas v. Union of India, (2000) 6 SCC 224 Recalling a judgment on valid grounds “does not militate against ….status or authority” of the Court. “Perhaps it would enhance both”. Per Constitution Bench of 7 judges in A R Antulay v. R S Nayak , AIR 1988 SC 1531. In the words of Husnain Masood ex-Judge , J&K High Court: “The majority view in Tanki case, …. calls for a second look. Bringing the Bank within judicial review, writ jurisdiction ……[is] what we need most in present crisis”. [Greater Kashmir dated 25-02-2018]

 M J Aslam is

Author of six books on law latest being two volumes ‘Law of Contract’ (Second Edition, Thomson Reuters Publication).