What constitutes instrumentality of State under Article 12?

Judicial Tests:

Part III of the Constitution comprising Articles 12 to 35 ismagna carta of India which secures basic fundamental rights of individuals,citizenry of India, against their infringement by “State”. What is “State”? Theterm is defined in Article 12 of the Constitution. The definition is inclusive& not exhaustive in character. Besides governments & Legislatures ofCentre & States, it also includes all local authorities & “otherauthorities”. There is not much difficulty in understanding meaning of Central& State governments & their respective Legislatures. Nor is itdifficult to understand what are “local authorities” as this term is definedunder section 3(31) of the General Clauses Act, 1897. However, it was withrespect to the scope of the term “other authorities” that we see a great dealof 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 SCR1014 (following earlier Constitution Benches of 5 judges each in ElectricityBoard 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 heldthat for determining whether a body is an instrumentality or agency of theState, it has to be seen (1) if the State gives substantial financialassistance to it, (2) if the State controls its management & policies, (3)if it enjoys State protected monopoly & (4) if its functions are closelyrelated to government functions. However, particularization of these tests isnot exhaustive & with changing times, they are subject to flexibility &adaptability, the Court added. (Para 19) Later, yet another Constitution Benchof the Supreme Court in celebrated case of Ajay Hasia v. Khalid MujibSehravard, AIR 1981 SC 487= 1 SCC 722= 2 SCR 79 once again recapitulated thetests for determination of the question at hand which , inter alia, includesexistence of deep & pervasive State control over the instrumentality orbody. And, finally, seven judges’ Constitution Bench of the Supreme Court inPradeep Kumar Biswas v. Indian Institute of Chemical Biology , (2002 (5) SCC111= 3 SCR 100= Supreme(SC) 503 re-explained Ajay Hasia & the majority offive judges summed up the scope of “other authorities” of the State in thesewords:

   

“The picture that ultimately emerges is that the testsformulated in Ajay Hasia are not a rigid set of principles so that if a bodyfalls within anyone of them it must, ex hypothesis, be considered to be a Statewithin the meaning of Article 12. The question in each case would be – whetherin the light of the cumulative facts as established, the body is financially,functionally and administratively dominated by or under the control of theGovernment. Such control must be particular to the body in question and must bepervasive. If this is found then the body is a State within Article 12. On theother hand, when the control is merely regulatory whether under statute orotherwise, it would not serve to make the body a State”. (SCC page 134, Para40), italics mine; followed in Gurcharan Singh v. Registrar, Co-operativeSocieties, (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 ‘anyof the tests’ in laid down in Pradeep Kumar Biswasmay is satisfied that willbring a body within purview of authority controlled by the State]

Pivotal point:

Pradeep Kumar Biswas has settled that “deep & pervasiveState control”, not merely regulatory under the statute or otherwise, ispivotal point of tests to be applied by the Courts in determination of thequestion whether an entity is organ or instrumentality of the State. (RajbirSurajbhan 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 (forbrevity) in the light of trilogy of said judicial tests of financial,functional and administrative control by State of J&K? There are two FullBench/FB judgments of three judges each of the JK High Court on the questionwhether the Bank is an instrumentality or organ of the State as envisaged underArticle 12.  Both the rulings have beendelivered 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) SriLJ85. 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 Article12, hence, amenable to writ jurisdiction of the High Court under Article 226 ofthe Indian Constitution read with Article 103 of JK Constitution. The operationof 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 Courtvide its order dated 4-3-2003 , dismissed the 1995-decision , remitted thematter for a re-consideration by the J & K High Court in the light of thetests set in Pradeep Kumar Biswas ante & cumulative facts of the case thatwere to be established before the High Court. The Supreme Court thoughmentioned in its remand order that “the High Court may also take note of thereduction of the share capital of the State, which it is stated, has come to53%” while re-considering the case, yet their Lordships emphatically made itclear that they were not “expressing one way or the other” on the issue whetherthe Bank was instrumentality of the State or not. So, in nutshell, matter wasreturned to the JK High Court to be decided afresh in the light of the testslaid 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 beforeit.

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 wasdivided. Justice Permod Kohli for self &, Mr. B A Khan, CJ, authoredmajority opinion, while Justice Y P Nargotra differing with them wrote aseparate minority judgment. The judgment, as mentioned above, was delivered on03-04-2006. It needs to be noted that the Apex Court in its cited remand orderdirected the High Court to decide the matter afresh “in the light of thejudgment of this court in Pradeep Kumar Biswas afore-mentioned afterconsidering the facts of the case in detail…..” To iterate, ratio decidendi ofPradeep Kumar Biswas is “control”, “functional, financial &administrative”, “deep & pervasive”, of the Government over the concernedbody that is to be looked into while answering the question. It was penultimatetest & only guideline prescribed by the Top Court in Pradeep Kumar Biswas,as explicitly mentioned in its abovementioned remand order for reconsiderationof the matter by the High Court. The ratio of both the judgments onthree-control-test is summarized below: 

(A)          OnFunctional Control:

The two judges named-above, on an examination of Articles69, 71, 72, 75, 76, 84, 118 , held that functional control of the Bank vestedin the BODs that was primarily source of all power and control for themanagement and functioning of the Bank. It was admitted that there are threepermanent directors appointed by the government one among whom has to bemandatorily Chairman cum CEO & the permanent/government directors cannot beremoved by rotation at the time of AGM & that they can be there on BODstill the pleasure of the government. In contrast, the majority further said,non-permanent/non-government/rotational directors retire /are elected, byrotation at the time of AGM. However, the majority held that (1) since themajority of the directors (5 out of 8 then) arenon-government/non-permanent/retiring/rotational directors, only minority ofthree government/permanent/non retiring/non rotational directors includingChairman cum CEO are direct appointees/nominees of the State government &(2) since under Articles 71 & 118 Chairman though responsible forconducting the management of business of the Bank , he is subject to thecontrol & supervision of the BODs, all this evinces that the functionalcontrol lies in the hands & voice of the Bank’s BODs, majority of whom arenot government nominees & the chairman is himself subject to the control ofthe BODs. (SLJ p 12-13, paras 23-29) It is submitted that Article 72 (e) whichstates that the conditions of service like appointment, removal or suspension,of all employees & officers of the Bank will be decided by the BODs “exceptin the case of Chairman/Chief Executive Officer of the Bank”, virtually, putsthe 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 cumulativefacts of the case.

Y P Nargotra J disagreeing with the two other judges heldthat despite whatever stated above, the government directors have to tow theline of the Chairman in view of their position being appointees of thegovernment who cannot afford to oppose the Chairman in any matter of managementof the business for the following reasons: (1) they are elected by the directsupport of the government that holds majority shareholding (53 % then, 59%.3 %at present), (2) as required majority voting power at the time of theirelection at AGM is vested in the State and (3) they are always under the threatof removal. (SLJ p32, para 76) It is submitted that this view of Y P Nargotra Jis correct as at the time any GM/AGM of any public company, it is “theprinciple of proportional representation of the shareholders”, whether by thesingle transferable vote or by a system of cumulative voting or otherwise, thatplays decisive role in appointment of rotational directors who are nongovernment directors in the case of JK Bank. Since State holds majority shares,its influence in rotational appointment, re-appointment & retirement ofnon- government directors can never be ruled out. It may not be out of place tomention here that section 162 of the Companies Act, 1956 regarding appointmentof directors to be voted individually stand excluded in the CA, 2013. So, it isthe majority vote of shareholders that holds the key in appointment of therotational directors at AGM of the Bank. Further, since Articles of the Bank donot provide for retirement of all directors at the time of AGM, at least 2/3rdof directors are statutorily required to be appointed/get retired by rotationat 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, 1/3rdare direct appointees of the State Government under the Article 75. Article 81further provides that the Bank’s Board can remove “any director” by “ordinaryresolution” even “before the expiration of his period of office”.  So, to submit, appointment of 2/3rdrotational/non-government directors, or majority of directors in the light ofmajority judgment, are a statutory requirement where, however, majority votingpower of State government is finally decisive.

Y P Nargotra J disagreeing further with the majority ofjudges observed that as one of the three required number of quorum of any Boardmeeting has to be a government director under the Article 84, it shows thegovernment is in a position to exercise influence & control on functioningof the BODs. It is totally irrelevant, disagreeing with majority opinion, hesays that a government director does not sit in a Board meeting that is goingto decide about a government business, since that is just a statutoryrequirement under section 300 of the erstwhile Companies Act, 1956 (reproducedin section 184(2) of the Companies Act, 2013). This majority view is apparentlyobiter of the judgment. 

Y P Nargotra J says that the functional control is “requiredto be seen from the manner in which the Bank functions generally in conductingits business”. The principal authority responsible for managing the business ofthe Bank is the Chairman who is a government man. Though his functioning issubject to the control of Board but in view of the fact that two Directors areappointees of the Government and remaining are elected with the support of thegovernment, they cannot afford to oppose Chairman. So, the control of the Boardcannot be anything but an illusory control. For all practical purposes,therefore, Chairman remains all powerful and in the position where he canbulldoze his way. Thus, government’s functional domination over the Bank throughits Chairman and Government nominated & supported directors can be seen tobe all pervasive & deep and not mere regulatory in nature as held by themajority at SLJ p 11, 12, 24, para 20-22, 50-53. (See SLJ p32-33, para 76-77for minority views) It is submitted that Article 72 (e) cited above supportsthe view of Y P Nargotra J that Board’s control does not extend to theChairman. Like other banks, the Bank’s banking operations are regulated by theChief Regulator, RBI   & otherregulators under a plethora of laws. But, to resubmit, this regulatory controlby RBI has nothing to do with State’s Control on the Bank. Moreover, “toregulate” 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 themanagement and policies of an entity whether by ownership of voting or contractor otherwise”. (Black’s Law Dictionary, 8th edition) Control includes power toregulate. Control means power or authority to manage, direct, superintend,restrict, regulate, govern, administer, subject to influence, to authorize useof agency or instrumentality. (Words & Phrases, Permanent Edition, Volume9A, West Publishing Co, 1984, pages 4-5) It is submitted while RBI & otherregulators exercise regulatory or supervisory control on the Bank[s] under therelated laws, the State exercises deep & pervasive control on the Bankunder its Articles of Association as explained above. 

Nature of functions the Bank performs:

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

The majority compared the Bank’s commercial activities witha private person dealing in grocery items or eatables who, in carrying on ofsuch 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/itsfunctions or activities”. (SLJ p 24, para 50). It is submitted that besidesusual banking functions, the Bank is providing specialized services to thepublic at large & the State government. It is bankers to the government ofJ&K. All government business is transacted solely through the Bank ¬ through any other “private” sector bank. The Bank collects electricitybills & other duties on behalf of the government. The State government’sall credit schemes like Seed Capital Fund Scheme & others for addressingunemployment & economic upliftment of the people are implemented throughthe Bank & not through any other “private” sector bank operating in theState. In terms of the Government Orders including Circular dated 15-12-2015,the Bank handles all government payments to individuals and indirectly controlsactual payment of credited amount. The Bank is the only bank in India whichpursuant to the directions of the State government implemented Nationale-governance programme (NEGP) of Government of India called Common ServicesCenter (CSC) Scheme & is running 1109 Common Service Centres called KhidmatCentres. Following an agreement signed between State Government & the RBI,the JK Bank, as the government company, has been entrusted with the job ofacting as an agent of the RBI for conduct of general banking business of theState Government. All this shows that the State government has conferred uponthe Bank “monopoly” as far as the government business in the State is concernedfor which single reason it cannot be compared with a retail grocery or othershop of a private individual.  It issubmitted that nature of activities cannot be used as determinative factor fordeciding if JK Bank is  an organ of theState because its functions & operations are, then, no way different fromthose of all nationalized public sector banks which are instrumentalities ofthe CG & amenable to writ jurisdiction of the SC & HCs. So, it is notnature 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 areseveral 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 underthe purview of Article 12.  It may benoted that banking services & functions have an element of public utilityin them as they are available to the public at large. The GOI has beendeclaring banking services as Public Utility Services for a period of sixmonths 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 dischargingpublic functions which are closely related to governmental functions. Moreover,great jurist of India, Justice Krishna Iyer, has pithily stated:  

 “Imagine the possibleresult of holding that a government company ………….not State …… which aregovernment in fact but corporate in form. If only fundamental rights wereforbidden access to corporations, companies……which act as agencies of theadministration there may be break-down of the rule of law and the constitutionalorder in a large sector of government activity carried on under the guise ofjural persons. It may pave the way for a new tyranny by arbitraryadministrators operated from behind by government by unaccountable to Part IIIof the constitution. …….. Government corporations are mammoth organisations. IfPart III of the Constitution is halted at the gates of ….. dangerous toexonerate corporations from the need to have constitutional conscience….” (SomParkash Rekhi v. Union of India, AIR 1981 SC 212)

Mr. Justice K K Mathew in Sukhdev Singh v. Bhagat Ram, (AIR1975 SC 1331 Constitution Bench of 5 judges) has also summed up the position inthese words:

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

 This & otherparts of the judgment of K K Mathew J in Sukhdev Singh ante have been massivelyquoted & relied upon by Mr. Justice P N Bhagwati who authored judgment inAjay Hasia & who had also previously in 1979 given judgment in R D Shettycase.

In the light of new trends in law, the functions of the Bankcannot be anything other than “public functions”.

“A body is performing a “public function” when it seeks toachieve some collective benefit for the public or a section of the public andis accepted by the public or that section of the public as having authority todo so. Bodies therefore exercise public functions when they intervene orparticipate in social or economic affairs in the public interest. This mayhappen in a wide variety of ways…..”(Judicial Review of Administrative Action(5th edition) by de Smith, Woolf & Jowell, Chapter 3 para 0.24, quoted withapproval 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 publicfunctions, the HC cannot exercise its power of judicial review under Article226 against it if the Bank’s employees if aggrieved by the orders of the Bank’smanagement because there is no violation of any “statutory duty” on the part ofthe Bank. At the most, it may be called violation of contractual obligationsfor which the employees can seek remedy in civil courts. (SLJ p 24-25) It issubmitted that J&K Bank cannot be compared to a “private” person orcompany. It is a listed Government “Public Company”. Of course, not formallybrought under the PSU categorization by the State government, (except SACdecision of November, 2018) & with a license of “old generation privatesector bank” under section 22 of the RBI Act, 1934  which [license], however, will not changecharacter of the Bank from a Public /Government company to a Private /nongovernment banking company. The Apex Court has on a survey of authority heldthat “authority” in Article 12 is for enforcement of fundamental rights whileasthis term used is Article 226 is not confined to Article 12 only and thatauthority in Article 226 must receive a liberal interpretation. So, a writ ismaintainable under Article 226 even “against a private body provided itdischarges public functions”. (Rajbir Surajbhan Singh v. Chairman, Institute ofBanking Personnel Selection, (2019) Supreme (SC) 510) decided on 29-04-2019) Itwas also noted in Zee Telefilms Ltd v. Union of India, (2005) 4 SCC 649: “whena private body exercises its public functions even if it is not a State, theaggrieved person has a remedy not only under the ordinary law but also underthe Constitution, by way of a writ petition under Article 226” which is muchwider than Article 32. It is already respectfully submitted that the JK Bank isdischarging “public functions” for the reasons/facts mentioned above.

The majority made a reference to some judgments of the Apexcourt to support its opinion that the Bank was a private person not amenable towrit jurisdiction under Article 226. It is submitted that the facts of thosecases 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 governmentby the Top Court. But it is equally true that in that case , no part of theshare capital of the BCCI /Board was held by the central government; nofinancial assistance was given by government to meet the whole or entireexpenditure of the Board; no financial control; CG exercised certain controlover the activities of the Board in regard to organising cricket matches andtravel of the Indian team abroad as also granting of permission to allow theforeign teams to come to India. But this control over the activities of theBoard was construed by the Top Court as not an administrative control butpurely 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 privatebank as State had no control of the affairs and management of that bank whichhad its own resources to raise its funds without any contribution orshareholding by the State. Its Board of Directors were elected by itsshareholders, out of 10, seven were elected by general body of privateshareholders, two co-opted by Board & one nominated by RBI. The bank didnot enjoy monopoly status in banking business with the State. Third case citedby the majority was General Manager, Kisan Sahkari Chini Mills Ltd v. SatrughanNishad , AIR 2003 SC 4531 where on a perusal of bye-laws of a sugar mill, theSC held that as the ratio of the nominees of State Government in the managingcommittee of the sugar mill was only 5 out of total 15 members, as 2/3rdmembers decided policies of the mill without State Government having any role inissuing any direction or policy to the Mill & & as the role of the UPState Co-Operative Federation, which was the apex body of Sugar Cane growers ingeneral, was only advisory and to guide its members, the mill was not authorityof the State.  

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

(B)          OnFinancial Control:

The majority held that as (1) only 53% (then, now it is 59.3%) of share holding was with thegovernment, (2) the government has itself had borrowed huge overdrawing fromthe Bank, (3) the Bank had advanced huge money to the public, and (4) hugefunds were at its disposal through public issue/ share equity and deposits, theBank was totally “financially independent” of any State control &instead it was extending a helping hand in meeting financial exigencies of theGovernment . So, the State Government had not any financial control over theBank. (SLJ pages 13-14, paras 30-32) Disagreeing with two judges, Y P NargotraJ observed that the State that owns 53% of the share capital in the Bank [atpresent it is 59.3%] is more than the minimum share capital of 51% required forthe Bank to be qualified as a government company. The government cannot byequity issues even reduce its required share capital of 51% because thereby itwill lose its financial dominance over the Bank & the Bank will losecharacter of a government company. The investment made in huge share capital bythe State cannot be termed as its simple and pure investment in the Bank forearning profit. All this indicates the State’s complete financial dominationover the Bank. (SLJ page 31, para 73) It is submitted that when the matter ofFirdous Tanki was pending with SC, the State government held 79% + shareholding in the Bank which was reduced to 51% during the same period byde-investment by the State government by first equity issue of 1998. Since ithappened during pending of the Bank’s appeals against 1995-FB order of JK HighCourt , when the case came up for hearing in the SC, the SC, at the submissionof the Bank’s counsel, noted reduction in share capital in its cited remandorder. 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 raiseState’ s equity  to present 59.3% therebyreassuring & tightening “strategic” “financial control” of State on theBank. (GK dated 12-01-2017)

 (C) On AdministrativeControl:

Majority noted that the State Government has “undoubtedly””absolute authority & power under the Articles” to appoint three Directorson 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 governmenthas at least 1/3rd of permanent or non–rotational directors on its Board isnot enough to draw an inference that the government has any administrativecontrol over the Bank. The Bank’s administration is run in accordance withArticles, the provisions of the Companies Act, policies and directives of theRBI.  The Bank is managed by BODs and alldecisions are taken by their majority. Chairman though is empowered to carry onthe business of the Bank is to be deemed as “either an agent of the Board orits delegate”. (SLJ p 14, para 33) But the minority view differed with it byobserving that the State government directly exercises administrative controlover the Chairman and its two directors who in terms of the Articles cannot beremoved except by government itself. The BODs is under the strong domination ofthe Chairman. Therefore, the government is in a position to maintain itsadministrative control over all the functions and functionaries of the Bank forthe reasons mentioned already above. (SLJ p 33, para 78-79) It is submittedthat the State’s administrative control on the Bank is too deep & pervasivewhich is proven by a number of facts such as: (a) The Bank being a governmentcompany has been subject to the audit control of the State Audit Committee& CAG of India. The State government’s Committee on Public Enterprise haspower to direct the Bank’s authorities to appear before it and carry out theinstructions and directions for ensuring speedy recovery of loans advanced bythe Bank. (b) The State government has removed so far two Chairmen of the Bankbefore expiry of the term of their office. First Mr. H A Drabu was asked totender resignation by the State on 27-08-2010. Second. Mr. Parvez Ahmad wassacked by the State Administration headed by the Governor on 08-06-2019. Theseare not insignificant developments. These developments are very significantevincing 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, in2006, J&K High Court by a majority of 2:1 held the JK Bank not an organ orinstrumentality of the JK State under Article 12 of the Constitution. Y PNargptra 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 dissenthas left the door open for reconsideration of the majority judgment as theSupreme Court Justice H R Khanna’s powerful dissent in famous habeas corpuscase, titled Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR1976 SC 1207= 2 SCC 521, that fundamental rights cannot be curtailed by any ParliamentaryAmendment during emergency even, became the law of India later. Mr. Justice H RKhanna, while disagreeing with majority of four judges, noted that “judges arenot there simply to decide cases, but to decide them as they think they shouldbe decided, and while it may be regrettable that they cannot always agree, itis better that their independence should be maintained and recognized than thatunanimity should be secured through its sacrifice” ( Para 594) In the end, H RKhanna, quoted great jurist, Chief Justice of American Supreme Court, CharlesEvans Hughes, what he had said in 1930s: “A dissent ……is an appeal to thebrooding spirit of the law to the intelligence of a future day, when a laterdecision may possibly correct the error into which the dissenting judgebelieves the court to have been betrayed”. 43 years after, the intelligence ofa future day has finally prevailed as 9 judges’ bench in landmark, Privacycase, 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 dissentof Justice H R Khanna was correct.  Inthe words of a noted Supreme Court lawyer, Sanjay Hegde: “A dissenting judgmentis an invitation to a future larger bench to hold that the majority got itwrong and the minority was correct.” Justice R F Nariman in his concurringjudgment in Privacy case, followed Charles Evans Hughes above quote &remarked that there have been “three great dissents” of the Indian SC. Onedissent of Justice H R Khanna mentioned above. Second Justice Fazl Ali’sdissent in A.K. Gopalan v. State of Madras, (1950) SCR 88 & third dissentof 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, thentomorrow, perhaps two, or three, or even four might be. (Hindustan Times dated20-11-2017)

Submission:

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

 M J Aslam is

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

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