Sasidharan M.G. v. Union of India & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 10819 OF 2021`** ## **`PETITIONER:`** ``` SASIDHARAN M.G. AGED 65 YEARS, S/O.LATE GOPALAN, MATHRU BHAVANAM KARAPPUZHA, KOTTAYAM DISTRICT, PIN-686 003. ``` ``` BY ADVS. S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SMT.AMBILY (PREMKUMAR) ``` ## **`RESPONDENTS:`** - `1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING, SHASTRI BHAVAN, NEW DELHI-110 001.` - `2 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `3 KERALA TELEVISION FEDERATION, REPRESENTED BY ITS PRESIDENT, KAIRALI TOWERS, ASAN SQUARE, UNIVERSITY COLLEGE P.O., PALAYAM, THIRUVANANTHAPURAM-695 034.` - `4 INDIAN NEWS PAPER SOCIETY, REPRESENTED BY ITS REGIONAL COMMITTEE MEMBER, MATHRUBHUMI AROGYA MASIKA, THE MATHRUBHUMI PRINTING AND PUBLISHING CO.LTD., M.J.KRISHNAMOHAN MEMORIAL BUILDING, K.P.SESAVA MENON ROAD, KOZHIKODE-673 001.` _**W.P.(C).10819/2021**_ 2 ``` 5WHATS APP INC. REPRESENTED BY GRIEVANCE OFFICER, 1601, WILLOW ROAD, MENLO PARK, CALIFORNIA 94025, UNITED STATES OF AMERICA. ``` ``` 6FACEBOOK INDIA ONLINE SERVICES PRIVATE LIMITED, UNIT NOS.1203 AND 1204, LEVEL 12, BUILDING NO.20, RAHEJA MINDSPACE, MADHAPUR, HITECH CITY, HYDERABAD-500 081, REPRESENTED BY ITS AUTHORISED REPRESENTATIVE VAMSI KRISHNA TADEPALLI. ``` ``` BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA MANU S., ASG OF INDIA ``` ## **`OTHER PRESENT:`** ``` SRI. JAISHANKER V NAIR, CGC SRI. V. TEKCHAND, SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P.(C).10819/2021**_ 3 ## J U D G M E N T Dated this the 15[th] day of June, 2022 ## S. Manikumar, CJ. Petitioner has sought for the following reliefs: - “i. To issue a writ of mandamus to the 1[st] respondent to issue appropriate guidance, advisories, orders and directions to the other respondents and the other publishers of content in cable television networks and the internet (including the intermediaries as defined under the Information Technology Act, 2000 and private persons) on the proper use and publication of images/ audio and video; - ii. to issue a writ of mandamus directing the 1[st] respondent to direct respondents 5 and 6 and other intermediaries as defined under the Information Technology Act, 2000 to forthwith block or remove any graphic images/ audio/ video of violence or death published on their databases; - iii. issue a writ of mandamus to the 3[rd] and 4[th] respondents to forthwith block or remove any graphic images/ audio/video of violence or _**W.P.(C).10819/2021**_ 4 death published by them and available for access to the general public; iv. issue a writ of mandamus to the 3[rd] and 4[th] respondents to forthwith desist from showing or publishing graphic images/ audio/video of violence or death.” 2. Short facts leading to filing of the writ petition are as under: The graphic images/video/audio of violence and death shown by news/media channels and that published online across various platforms have a deep psychological impact on the public, often causing panic and despair. The images/audio/video have a greater and deeper impact on the viewers, than ordinary reporting/written information. 2.1. The Fundamental duties under Article 51A enjoins upon its citizens to develop humanism and to abjure violence. It is submitted that the freedom of speech and expression under Article 19(1)(a) is not an unbridled and undefined right, but defined in scope by Articles 47 and 51A of the Constitution. 2.2 Aggrieved by the disturbing new items/video clipping appearing almost on daily basis, this writ petition. _**W.P.(C).10819/2021**_ 5 3. Earlier, this court directed learned Central Government Counsel to obtain instructions. Today, on instructions, Mr. Jaishankar V. Nair, learned Central Government Counsel submitted that various provisions are available under Cable Television Networks (Regulation) Act, 1995 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to address the reliefs sought in the present Writ Petition. The following submissions are made by learned Central Government Counsel by submitting an argument note: 3.1 Various provisions are available under Cable Television Networks (Regulation) Act, 1995 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to address the reliefs sought in the present Writ Petition. ## **A.** Private TV channels All programme telecasted on private TV channels are required to adhere to the Programme Code prescribed under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the rules framed thereunder. The Programme Code contains a wide range of parameters to regulate the programme on private TV channels. As per Cable Television Networks (Regulation) Act, 1995, there is no pre-censorship of a programme _**W.P.(C).10819/2021**_ 6 telecast on private TV channels (other than films, film song or film promo or film trailer which have to be pre-certified by CBFC). 3.2 Section 5 of the Cable Television Networks (Regulation) Act, 1995 provides that no person shall transmit or re-transmit through a cable service any programme, unless such programme is in conformity with the prescribed programme code. 3.3 Section 20(3) of the Cable Television Networks (Regulation) Act, 1995 provides that where the Central Government is of the opinion that any programme of any channel is not in conformity with the prescribed programme code referred to in section 5, it may by order, regulate or prohibit the transmission or re-transmission of such programme. 3.4 Thus, it may be seen that it is the responsibility of the channel to ensure that a programme telecast on private TV channel does not violate the Programme Code prescribed under Cable Television Networks Rules, 1994. 3.5 For Private satellite TV Channel, Recently, the Central Government has also notified Cable Television Networks (Amendment) Rules, 2021 vide Notification No GSR 416(E) dated 17.06.2021 thereby establishing a statutory mechanism for redressal of grievances/complaints of citizens relating to violation of Programme and Advertising Code. The Rules provide three level complaint redressal structure as under : ## i. Level-1-A self regulation by broadcaster, ii. Level-2 Self regulation by the self regulating bodies of the broadcasters, and _**W.P.(C).10819/2021**_ 7 iii. Level-3:-Oversight mechanism by the Central Government. ## 3.6. **B** . Publishers of news and current afairs on digital media and publishers of online curated content (OTT platforms) Regulated as per Part III of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified under IT Act, 2000 on 25.02 2021 which provides for an institutional mechanism for publishers of news and current affairs on digital media and publishers of online curated content (OTT Platforms) 3.7. Key features of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 are as under: (i) Adherence to a Code of Ethics prescribed under Rules by publishers of news and current affairs content on digital media and publishers of online curated content (OTT Platforms); (ii) A three tier grievance redressal mechanism to look into complaints/grievances relating to the violation of Code of Ethics by such publishers; 3.8 The Code of Ethics applicable to the publishers of news and current affairs content on digital media including social media platform provides for the following I. Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978; II. Programme Code under section 5 of the Cable Television Networks Regulation Act, 1995; _**W.P.(C).10819/2021**_ 8 III. Content which is prohibited under any law for the time being in force shall not be published or transmitted. 3.9 Grievance Redressal Mechanism: A three-level grievance redressal mechanism has been established under the rules with two levels of self regulation Level 1 being the publisher and Level II being the Self Regulatory Body and the third level being the Oversight Mechanism under the Ministry of Information &Broadcasting The rules provide for an effective grievance redressal mechanism for receiving, processing, and time-bound disposal of public grievances related to the Code of Ethics. The roles and functions assigned to various levels of the Grievance Redressal Mechanism are as under: ## 3.10 Roles and responsibilities of Publisher - Level I (i) Every publisher shall establish grievance redressal mechanism and appoint a Grievance Officer based in India for receiving and redressing grievances in a time bound manner The details of the grievance redressal mechanism will be displayed by the publisher at an appropriate place on its website or interface. Also, every publisher needs to become a member of a self-regulating body (ii) The publisher should communicate the decision to the complainant within 15 days (iii) The complainant can appeal against the decision of the publisher to the self-regulating body of which the publisher is a member. Such an appeal can be made within 15 days of receiving the decision. If the publisher does not respond in 15 days, the matter can directly be taken up by the self regulating body of which the publisher is member _**W.P.(C).10819/2021**_ 9 3.11 Roles and responsibilities of Self-Regulating Body - Level II (i) Publishers, or their associations, may establish self regulating bodies as per the provisions of the rules. (ii) There can be more than one self-regulating body but one publisher should be member of a self-regulating body. (iii) The self-regulatory body shall be headed by a retired judge of the Supreme Court or High Court, or an independent. eminent person from the field of media, broadcasting. entertainment child rights, etc. It shall have a maximum of six other members who would be experts from these fields. (iv) The self-regulating body shall perform the following functions: (a) Ensure adherence to the Code of Ethics by the publisher. - (b) Address grievances which have not been resolved by publishers within fifteen days. - (c) Hear appeals filed by the complainant against the decision of publishers; - (d) Issue such guidance or advisories to such publishers for ensuring compliance to the Code of Ethics. (v) The self-regulating body while disposing a grievance or an appeal can issue following guidance or advisories to the publishers: - (a) Warning, censuring, admonishing or reprimanding the publisher, or - (b) Requiring an apology by the publisher, or _**W.P.(C).10819/2021**_ 10 (c) Requiring the publisher to include a warning card or a disclaimer, or - (d) In case of online curated content, direct the publisher to, o reclassify ratings of relevant content, or - make appropriate modification descriptor, age - classification and measures; or in the content access control measures or o edit synopsis of relevant content, (vi) The complainant can appeal against the decision of the self regulating body to the oversight mechanism within 15 days of receiving the decision. ## 3.12 Oversight Mechanism - Level III (I) The Ministry of Information Broadcasting, and the Inter Departmental Committee constituted by the Ministry, shall constitute the Oversight Mechanism The Inter Departmental Committee would hear complaints arising out of Level II/I or referred by the Ministry, and make recommendations to the Ministry. (ii) The Inter-Departmental Committee would be chaired by the Authorized Officer designated by the Ministry and it would include representatives from other Ministries and Departments such as Ministry of Home Affairs, Ministry of Electronics and Information Technology, etc. (iii) For matters referred to the Committee, the publishers would be given an opportunity to be heard and submit their reply and clarifications before the Committee (IV) The Committee can make the following recommendations to the Ministry: _**W.P.(C).10819/2021**_ 11 a) Warning, censuring, admonishing or reprimanding such entity; or b) Requiring an apology by such entity; or c) Requiring such entity to include a warning card or a disclaimer or d) In case of online curated content, direct a publisher to - (i) reclassify ratings of relevant content or - (ii) edit synopsis of relevant content or (iii) make appropriate modification in the content descriptor age classification and parental or access control: e) Delete or modify content for preventing incitement to the commission of a cognizable offence relating to public order; (v) In case of content where the Committee is satisfied that there is a need for taking action in relation to the reasons enumerated in subsection (1) of section 69A of the Act, it may recommend such action. (vi) The Ministry would consider the recommendations of the InterDepartmental Committee. and issue appropriate orders/directions for compliance by the publisher. ## 3.13 Powers of Central Government: (a) To issue directions for deletion, modification, blocking etc of the content Rule 15 of the IT Rules, 2021 provides that the Ministry, after taking into consideration the recommendations of the Inter Departmental Committee, may issue appropriate orders and directions to publisher These directions may also include deletion. modification, blocking of content by publishers with the approval of Secretary, Ministry of Information and Broadcasting. _**W.P.(C).10819/2021**_ 12 (b) Blocking of information in case of emergency: Rule 16 of the IT Rules, 2021 provides that in cases of emergency nature, for which no delay is acceptable the Secretary. Ministry of Information and Broadcasting may, after recording reasons in writing. Issue directions as interim measure for blocking of content without giving the publisher an opportunity of hearing. Such matters will be referred by the Authorized Officer to the Inter Departmental Committee within forty eight hours for its recommendations On receipt of recommendations of the Committee the Secretary, Ministry of Information and Broadcasting, shall pass the final order in this regard. 3.14 As may be seen from position explained above complaints/grievances in respect of any content of News & current affairs on digital media including social media platform is addressed under the three tier grievance redressal mechanism provided in Part III of the Rules. A complaint regarding any content of such publishers, needs to be taken up initially with Level-I of this grievance redressal mechanism ie the publishers under IT Rules, 2021. If the complainant is not satisfied with the action/reply, he may approach Level-1 of the grievance redressal mechanism ie the Self Regulating Body (of whom the publisher is a member). If he is not satisfied with the order/decision of the elf Regulating Body also, he may prefer an appeal against the order/decision of the Self Regulating Body at Level-III of the grievance redressal mechanism i.e. the Oversight mechanism of the central Government. 3.15 Powers for blocking of content for public access invokable only in respect of content found to be in violation of Section 69A of IT Act, 2000 in the interest of sovereignty and integrity of India, defence of India, Security of the State. friendly relations with foreign States or public order for preventing incitement to the commission of any cognizable offence relating to above. _**W.P.(C).10819/2021**_ 13 3.16 It is submitted that the Information Technology Act 2000 has sufficient provisions for protection of children, women and from acts of cyber terrorism. The relevant provisions are summarized below: Provisions Offences covered Section 66E Punishment for violation of Privacy Section 66F Punishment for Cyber Terrorism Section 67 Punishment for publishing or transmitting obscene material in electronic form - Section 67 A Punishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form Section 67 B Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form. 3.17 It is submitted that the above provisions are specifically framed to protect the rights of women and children and to prevent cyber terrorism. These provisions are penal provisions in nature Any aggrieved party can file a complaint before the law enforcement agency of his/her jurisdiction and seek action for violation of the provisions. 3.18 It is submitted that the sections 69A and 79 of the Information Technology Act, 2000 relates to blocking public access of any information through any computer resource, the liabilities of the intermediaries and exemptions respectively 3.19 It is submitted that as per Section 69A of the IT Act 2000, MeitY is empowered to block the information for public access through any _**W.P.(C).10819/2021**_ 14 computer resource only under the following specific circumstances and not otherwise: (i) interest of sovereignty and integrity of India, (ii) defense of India, (iii) security of the State. (iv) friendly relations with foreign States or (v) public order or (vi) for preventing incitement to the commission of any cognizable offence relating to above. 3.20 It is submitted that the detailed process for blocking of websites/URLS under section 69A is notified through “The Information Technology (Procedure and Safeguards for Blocking for Access of Information for Public) Rules, 2009 Blocking Rules hereinafter Blocking is either done in compliance of a court order or in pursuance of the recommendation of an inter ministerial committee specified under the said Rules. 3.21 It is submitted that as per the above Blocking Rules" it is mandatory that a request has to be received through the Nodal Officer of the respective state or the government department specifically designated for the purpose of sending request for blocking the access of a computer resource Nodal Officers have been specifically designated for all States and Union Territories to consider complaints. The Nodal Officer on being satisfied that the complaint warrants a blocking action may forward the request for blocking to MeitY. This legal process is mandatory to be followed in blocking any websites/ URLs. _**W.P.(C).10819/2021**_ 15 3.22 It is submitted that section 79 of the Information Technology Act, 2000 relates to exemption of intermediaries The said provision mandates due diligence to be followed by the intermediaries which includes social media. The Information Technology (Intermediaries Guidelines) Rules, 2011 notified under section 79 of the Act, mandates that the intermediaries shall inform the users of computer resource not to host. display upload, modify publish, transmit, update or share any information that is grossly harmful, harms minor in any way, violates any law for the time being in force, etc. 3.23 It is submitted that Rule 3 of Information Technology (Intermediary Guidelines) Rules 2011 mandates the Intermediaries to follow due diligence in the performance of their services. Rule 3 (2) (b) (c) (i) are relevant for the purposes of the claims raised in the petition (outlined below): Rule 3 (2): Such rules and regulations, terms and conditions or user. agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that - Rule 3(2) (b): is grossly harmful, harassing, defamatory, obscene, pornographic, pedophilic, libelous, another's privacy, hateful, blasphemous. invasive of or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever, Rule 3(2) (c): harm minors in any way; Rule 3(2) (1): threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or _**W.P.(C).10819/2021**_ 16 public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation. 3.24 It is submitted that as per Rule 4 of the Intermediary Guidelines 2011, an intermediary is required to remove the alleged information on receipt of information relating to the alleged information. Also as per Rules S and 11 an intermediary shall inform its user about its privacy policy. user agreement and also appoint a grievance officer Any aggrieved can file a complaint before the law enforcement agency for violation of the Information Technology (Intermediary Guidelines) Rules 2011. 3.25 It is submitted that in exercise of the powers conferred by sub section (1) of section 70B of the Information Technology (Amendment) Act. 2008, effective from 27 10.2009, appointed the Respondent No.5 Indian Computer Emergency Response Team (hereinafter CERT In) to serve as national agency for all incident responses in the country under section 70B of the Act. The functions of CERT In as provided under section 70(B)(4) is as follows: 3.26 The Indian Computer Emergency Response Team shall serve as the national agency for performing the following functions in the area of cyber security, - (a) collection, analysis and dissemination of information on cyber incidents; - (b) forecast and alerts of cyber security incidents, - (c) emergency measures for handling cyber security incidents, - (d) coordination of cyber incidents response activities; _**W.P.(C).10819/2021**_ 17 (e) issue guidelines, advisories, vulnerability notes and whitepapers relating to information security practices, procedures, prevention, response and reporting of cyber incidents; (f) such other functions relating to cyber security as may be prescribed. ## 3.27 **C** . Print Media ## THE PRESS COUNCIL ACT, 1978 14. Power to censure.- (1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended against the standards or journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be Provided that the Council may not take cognizance of a compliant if in the opinion of the Chairman, there is no sufficient ground for holding an inquiry. (2) If the Council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any newspaper to publish therein in such manner as the Council thinks fit, any particulars relating to any inquiry under this section against a _**W.P.(C).10819/2021**_ 18 newspaper or news agency, an editor or a journalist working therein, including the name of such newspaper, news agency, editor or journalist. 4. Press Counsel Act, 1978, as well as Information Technology Act, 2000 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 framed thereunder enable the competent authorities herein, to vindicate the grievance of any violation and to proceed further. 5. In the case on hand, the writ petitioner has not made any representation before the competent authorities under the above said Acts and directly approached this Court for the reliefs stated supra. 6. No doubt, in exercise of powers under Article 226 of the Constitution of India, writ court can take cognizance of certain events/acts and initiate proceedings. However, in the case on hand, the allegation pertains to certain contents in the television and internet, allegedly published by respondents 5 and 6. Whether the above said contents and publications contravene the provisions of the Press Counsel Act, 1978, and Information Technology Act, 2000 and Information Technology (Intermediary _**W.P.(C).10819/2021**_ 19 Guidelines and Digital Media Ethics Code) Rules, 2021 framed thereunder, have to be looked into by the authorities under the above said Act, if there is any representation or petition, as the case may be. As of now, we find no such representation or petition is submitted to the authorities under the above said Act. 7. What is a writ of mandamus and when it is issued is explained thus: On the aspect as to when mandamus can be issued, we deem it fit to consider few decisions. ## (i) In **State of Kerala v. A. Lakshmi Kutty** reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. (ii) In **Comptroller and Auditor General of India v. K.S.Jegannathan** , reported in **AIR 1987 SC 537** - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court _**W.P.(C).10819/2021**_ 20 referred to Halsbury's Laws of England 4[th] Edition, Vol. I, Paragraph 89, about the efficacy of mandamus: "89. Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." (iii) In **Raisa Begum v. State of U.P.** , reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. (iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. _**W.P.(C).10819/2021**_ 21 (a) In **State of U.P. and Ors. v. Harish Chandra and** Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows: “10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....” (b) In **Union of India v. S.B. Vohra** reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.” (c) In **Oriental Bank of Commerce v. Sunder Lal Jain** reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:- “11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal _**W.P.(C).10819/2021**_ 22 duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the wellsettled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.” _**W.P.(C).10819/2021**_ 23 12. These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others** , AIR 1977 SC 2149, after referring to the earlier decisions in _Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210 and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964_ , this Court observed as follows in paragraph 15 of the reports : "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same." _**W.P.(C).10819/2021**_ 24 (v) When a Writ of Mandamus can be issued, has been summarised in _Corpus Juris Secundum_ , as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasijudicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and _**W.P.(C).10819/2021**_ 25 there are other methods which it adopted, would be effective." (emphasis supplied). 8. In the light of the above decisions and discussions, we are not inclined to grant the reliefs sought for. However, it is open to the petitioner to vindicate the grievances to the competent authorities by filing necessary petition or representation as the case may be. If any such representation or petition is filed, the competent authorities are directed to look into the same as per the statutory provisions and in accordance with law. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou. _**W.P.(C).10819/2021**_ 26 ## **`APPENDIX OF WP(C) 10819/2021`** ``` PETITIONER EXHIBITS EXHIBIT P1COPY OF NEWS REPORTED IN MATHRUBHUMI DAILY DATED 28.04.2021. EXHIBIT P2COPY OF NEWS REPORTED IN TIMES OF INDIA DAILY DATED 28.04.2021. EXHIBIT P3COPY OF NEWS REPORTED IN TIMES OF INDIA DAILY DATED 29.04.2021. ```