In the recent judgement dated 16 January 2025, passed by Hon’ble High Court of Bombay, in the wilful defaulter matter of Ankit Bhuwalka Erstwhile Director of Bhuwalka Steel Industries Limited Vs IDBI Bank Limited and other held that writ Petition under Article 226 of the Constitution of India is maintainable against “Non-state”.
Learned Counsel Mr. Prakash Shinde for Respondent Bank i.e. IDBI Bank Limited raised a preliminary objection as to the maintainability of the Petition on the ground that the Respondent No.1 is not ‘State’ nor an instrumentality of the State within the meaning of Article 12 of the Constitution of India. The Respondent No.1 is now a private sector bank for regulatory purpose with effect from 21st January 2019. Thus, the present Petition under Article 226 of the Constitution of India is not maintainable.
Hon’ble High Court of Bombay after relying upon judgement of Hon’ble Supreme Court of India in the matter of Jah Developers and Kaushal Kishore vs State of Uttar Pradesh and Others, held that Fundamental right under Article 19 or 21 can be enforced even against persons other than State or its instrumentalities therefore present petition is maintainable against IDBI Bank Limited even if it is non state (as per Para No. 30 of aforesaid judgement which is reproduced as under);
30) We now deal with the issue regarding maintainability of the present petition against the Respondent No.1-Bank which Mr. Shinde urges is not ‘State’ and hence not amenable to writ jurisdiction. We have already discussed the decision of the Supreme Court in the matter of Jah Developers (Supra). The Supreme Court clearly expressed its view that Article 19(1)(g) of the Constitution of India is attracted as the moment a person is declared as wilful defaulter there is a direct and immediate impact on his fundamental right to carry on business. It is settled law that a Fundamental right under Article 19 or 21 can be enforced even against persons other than State or its instrumentalities. In a recent decision a majority of a five-judge bench of the Supreme Court in the matter of Kaushal Kishore vs State of Uttar Pradesh and Others held that a fundamental right can be enforced even against a non-state actor. Justice Ramasubramanian (as he then was) writing for the majority wrote, “The original thinking that these rights can be enforced only against the state, changed over a period of time. The transformation was from ‘state’ to ‘authorities’ to ‘instrumentalities of state’ to ‘agency of the government’ to ‘impregnation with governmental character’ to ‘enjoyment of monopoly status conferred by state’ to ‘deep and pervasive control’ to the ‘nature of the duties/functions performed.” In this connection, he also quoted Justice Vivian Bose’s famous words in S. Krishnan v. State of Madras, about not placing undue importance on petty linguistic details, and ‘penetrating deep into the heart and spirit of the Constitution’. On the strength of this prescription, Justice Ramasubramanian ( as he then was) proceeded to answer the question whether a fundamental right under Articles 19 or 21 could be claimed other than against the state or its instrumentalities, in the affirmative. In this view of the matter, we have no hesitation in holding the present petition to be maintainable against the present Respondent No.1 We have also perused the decision of this Court in Mrinmayee (Supra) relied upon by the Respondent No.1 but the same is in a different context and hence does not assist the Respondent No.1.
In view of above judgement passed by Hon’ble High Court of Bombay, Fundamental right under Article 19 or 21 can be enforced even against persons other than State or its instrumentalities i.e. Non-state. Therefore, Hon’ble High Court of Bombay provided much needed clarity in aforesaid judgement.