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Constitutional Law

Foreign SPA Restriction

 21-Jun-2024

Source:  Karnataka High Court 

Why in News? 

Recently, the Karnataka High Court has set a significant legal precedent in matter of Sagad kareem Ismael v. Union of India & others by ruling that foreign nationals cannot execute Special Power of Attorney (SPA) from outside India to file writ petitions in Indian courts. The court dismissed a petition filed by an Iraqi national through an SPA holder, seeking entry into India for medical treatment.  

  • This decision effectively limits the ability of foreigners to use SPAs for legal matters in India, particularly regarding visa applications and immigration issues. 

What was the Background of Sagad Kareem Ismael v. Union of India & others? 

  • In 2012 the petitioner, (Sagad Kareem Ismael) an Iraqi national, first visited India on a student visa to study B-Pharma in two colleges in Bangalore. 
  •  2017:  
    • The petitioner completed his B-Pharma course. 
    • He departed India after overstaying for 11 months. 
    • Due to overstaying, his name was placed on the blacklist with retention until 22.05.2019. 
    • 03rd November 2017: The petitioner attempted to travel to India on a medical attendant visa but was refused entry. 
  • 02nd December 2019: Despite previous issues, the petitioner secured a medical visa during the COVID-19 pandemic and entered India. 
  • 18th December 2021: The petitioner departed India when an exit permit was issued to him. 
    • The petitioner filed W.P.No.7696 of 2020, which is still pending in the stage of office objection. 
  • 22nd February 2024:  
    • The petitioner applied for a medical visa to enter India for treatment at Aster CMI Hospital, Bangalore. 
    • His medical investigations in Basra Health Department had detected three small cerebral lesions in his brain. 
    • Aster CMI Hospital opined that he would require medical management, further treatment, and investigation for three months, potentially extendable. 
  •  The petitioner submitted his visa application via email and sent reminders. 
  • The Foreigners Regional Registration Office (third respondent) directed the petitioner to contact the Indian Mission abroad regarding visa queries. 
  • The petitioner executed a Special Power of Attorney (SPA) in favor of a person to represent him in India. 
  • The SPA holder filed the current petition seeking a mandamus to direct the respondents to consider the visa application dated 22nd February 2024 and grant the petitioner entry for treatment. 
  • The Union of India opposed the plea, citing the petitioner's history of overstaying and previous attempts to enter India despite being blacklisted. 

What were the Court’s Observations? 

  • The court held that a foreign national cannot execute a Special Power of Attorney (SPA) from outside India for the purpose of filing a writ petition under Article 226 of the Constitution of India, 1950 (COI) before any courts in India and dismissed the petition. 
  • The court observed that under the Powers of Attorney Act, 1882, a foreigner cannot be represented before the court through a petition filed by an SPA holder for the grant of a visa or passport and or similar immigration issues. 
    • The bench implied that such use of an SPA by a foreign national to file a writ petition in Indian courts is not permissible under Indian law. 
    • While the court did not impose exemplary costs on the petitioner due to his representation through an SPA holder who might not have been aware of all the facts, it clearly stated that such a practice is not acceptable. 

What is the Special Power of Attorney (SPA)? 

  • A legal document that grants specific, limited authority to an agent (called the "attorney-in-fact") to act on behalf of the principal (the person granting the power) 
  • An SPA is limited to specific transactions or types of transactions. 
  • It allows the agent to make decisions or take actions in specific areas, such as: 
    • Selling property 
    • Managing financial accounts 
    • Handling legal matters 
    • Making medical decisions 
  • The powers granted are explicitly defined in the document and do not extend beyond what is specified. 
  • It can be used when the principal is unable to handle certain matters personally, due to illness, distance, or other reasons. 
  • The SPA can be temporary or permanent and revoked by the principal if they are mentally competent. 
  •  It's a useful tool for delegating authority in situations where the principal cannot be physically present or wants to authorize someone else to act on their behalf for specific matters. 
  •  The document must typically be notarized to be legally valid. 

What are the Essential Components of a Special Power of Attorney (SPA)? 

  • Identification of parties: 
    • Full legal name and address of the principal (person granting the power) 
    • Full legal name and address of the agent (attorney-in-fact) 
  • Date of execution 
  • Specific powers granted: 
    • Clearly define the exact scope of authority 
    • List specific tasks or transactions the agent can perform
  • Duration of the power: 
    • Specify if it's for a limited time or until revoked 
    •  Include any expiration date if applicable 
  • Alternate agent (optional): 
    • Name a backup agent in case the primary agent is unable to serve 
  • Revocation clause: 
    • Statement that the principal can revoke the power at any time 
  • Governing law: 
    • Specify which state's laws govern the document 
  • Signature requirements: 
    • Space for the principal's signature 
    • Space for notarization 
  • Witness signatures (if required by your jurisdiction) 
  • Specific instructions or limitations: 
    • Any special conditions or restrictions on the agent's authority 
  • Indemnification clause: 
    • Protecting the agent from liability when acting in good faith 
  • Compensation details (if any): 
    • Whether and how the agent will be compensated 
  • Acceptance by the agent: 
    • A section for the agent to sign, accepting the responsibility 

How to Cancel the Special Power of Attorney India? 

  • To cancel a Special Power of Attorney (SPA) in India, you can follow these general steps: 
    • Revocation document: Draft a formal revocation document stating your intention to cancel the SPA. 
    • Include details: Mention the date of the original SPA, the name of the attorney, and specific powers being revoked. 
    • Notarization: Get the revocation document notarized. 
    • Inform parties: Notify the attorney and any third parties involved about the cancellation. 
    • Registration: If the original SPA was registered, register the revocation at the same sub-registrar's office. 
    • Return original: Ask the attorney to return the original SPA document. 
    • Legal advice: Consider consulting a lawyer to ensure the proper procedure is followed. 

Constitutional Law

State under Article 12

 21-Jun-2024

Source: Allahabad High Court 

Why in News?  

Recently, the Allahabad High Court in the matter of Prem Chand v. State of UP & Ors., has held that Kshetriya Gandhi Ashram, Meerut is not 'State' under Article 12 of the Constitution of India, 1950 (COI) as there is no statute regulating the functions of the Ashram or empower State to control its affairs. 

What was the Background of Prem Chand v. State of UP & Ors. Case?  

  • In this case, the petitioner was employed as a Supervisor in the Kshetriya Shri Gandhi Ashram, Garh Road, Meerut and transferred to Shri Gandhi Ashram, Khadi Bhandar, Baraut, District Baghpat by an order passed by the Secretary, Kshetriya Shri Gandhi Ashram, Meerut.  
  • The petitioner says that he was also the elected Secretary of the Kshetriya Shri Gandhi Ashram Employees Union, Meerut. 
  • The petitioner moved a complaint dated 8th September 2023 before the Branch Manager of the Union Bank and the Canara Bank, where accounts of the Kshetriya Shri Gandhi Ashram, Meerut are maintained, about execution of a forged sale deed on behalf of the Kshetriya Shri Gandhi Ashram, Meerut in favour of one Ranuka Ashiyana Private Limited, besides misuse of funds by the Kshetriya Shri Gandhi Ashram, Meerut. 
  • An inquiry was conducted into the complaint and operation of the Bank Accounts of the Kshetriya Shri Gandhi Ashram, Meerut was stopped. 
  • The petitioner was threatened by the Secretary of the Kshetriya Shri Gandhi Ashram, Meerut, to withdraw his complaint, upon pain of facing dire consequences. 
  • The Secretary of the Kshetriya Shri Gandhi Ashram, Meerut passed the dated 16th September 2023, dismissing the petitioner from service, without holding any inquiry.  
  • By another order dated 25th September 2023, the petitioner has been asked to handover possession of the house allotted to him as an employee of the Kshetriya Shri Gandhi Ashram, Meerut.  
  • Thereafter, a writ petition was filed by the petitioner before the Allahabad High Court.  
  • Counsel for respondent raised a preliminary objection as to the maintainability of the petition. It was argued that the Kshetriya Shri Gandhi Ashram, being a registered society is not an instrumentality of the State. 
  • The High Court dismissed the petition.  

What were the Court’s Observations?  

  • Justice J.J. Munir observed that Shri Gandhi Ashram, parent body of Kshetriya Shri Gandhi Ashram, Meerut is not state within Article 12 of the COI as the state had no statutory control over its functioning and no writ is maintainable against the Ashram. 
  • The Court relied on the judgment given in the case of Suresh Ram v. State of U.P (2005) in which the Allahabad High Court laid down 6 factors to be considered while deciding whether a cooperative society is a 'State' under Article 12 of the COI. The factors are: 
    • One thing is clear that if the entire share capital of the corporation is held by the Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. 
    • Where the financial assistance of the State is so much as to meet almost the entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.  
    • It may also be a relevant factor whether the corporation enjoys monopoly status which is State-conferred or State-protected.  
    • The existence of deep and pervasive State control may afford an indication that the corporation is a state agency or instrumentality.  
    • If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. 
    • Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. 

What is State under Article 12 of the COI?  

Meaning of State: 

  • Article 12 lays down that unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 
  • The definition of State is inclusive and provides that State includes the following:  
    1. Government and Parliament of India i.e., the Executive and Legislature of the Union. 
    2. Government and Legislature of each State i.e., the Executive and Legislature of the various States of India. 
    3. All local or other authorities within the territory of India, or under the control of the Government of India. 

Government and Parliament of India 

  • The term State includes the Government of India i.e., Union executive and the Parliament of India.  
  • This term stands to include a Department of Government or any institution under the control of a Department of Government e.g. the Income Tax Department.  
  • The President while acting in his official capacity must be included in the term and be regarded as State.  

Government and Legislature of Each State 

  • The term State includes the Government of each State that is the State Executive and legislature of each State that is the State legislatures.  
  • It includes Union Territories as well.  

Local or Other Authorities Within the Territory of India 

  • The expression local authorities is defined in Section 3(31) of the General Clause Act, 1897 as local Authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund. 
  • The expression local authorities usually refer to authorities such as municipalities, District Boards, Panchayats, mining settlement boards, etc. Anybody functioning under the state; owned; controlled and managed by the State and carrying out a public function is a local authority and comes within the definition of the state. 
  • The term other authorities have nowhere been defined. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time. 
  • The Supreme Court in the case of Union of India v. R.C. Jain (1981) laid down the test for determining which bodies would be considered as a local authority under the definition of State enshrined under Article 12 of the COI.  The Court held that if an authority: 
    • Has a separate legal existence 
    • Functions in a defined area 
    • Has the power to raise funds on its own 
    • Enjoys autonomy i.e., self-rule 
    • Is entrusted by statute with functions which are usually entrusted to municipalities, then such authorities would come under ‘local authorities’ and hence would be State under Article 12 of the COI.  

Whether a Body falls Under Article 12 or Not: 

  • In R.D Shetty v. Airport Authority of India (1979) Justice P.N Bhagwati gave 5 Point test. This is a test to determine whether a body is an agency or instrumentality of the State and goes as follows – 
    • Financial resources of the State, where the State is the chief funding source i.e. the entire share capital is held by the government. 
    • Deep and pervasive control of the State. 
    • The functional character being Governmental in its essence, meaning thereby that its functions have public importance or are of a governmental character. 
    • A department of Government transferred to a corporation. 
    • Enjoys monopoly status which State conferred or is protected by it. 
  • This was elucidated with the statement that the test is only illustrative and not conclusive in its nature and is to be approached with great care and caution. 

Whether State includes Judiciary:  

  • Article 12 of the COI does not specifically define judiciary and a great number of dissenting opinions exist on the same matter. 
  • Bringing judiciary entirely under Article 12 causes a great deal of confusion as it comes with an attached inference that the very guardian of our fundamental rights is himself capable of infringing them. 
  • However, in Rupa Ashok Hurra v. Ashok Hurra (2002), the Supreme Court reaffirmed and ruled that no judicial proceeding could be said to violate any of the Fundamental rights and that it is a settled position of law that superior courts of justice did not fall within the ambit of State or other authorities under Article 12.  

Case Laws 

  • University of Madras v. Shanta Bai (1950), the Madras High Court evolved the principle of ‘ejusdem generis’ i.e., of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities. 
  • Ujjammabai v. the State of UP (1961), the Supreme Court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to in interpreting other authorities. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.