Private Bodies and Public Functions
Chapter Thirty-Two
Syllabus topic 2, "State: Need for widening the definition in the wake of Liberalisation".
Pages 148 to 151 of 304
In one line
A body may be outside article 12 and still be answerable in a writ petition, because article 226 reaches whoever performs a public function or owes a public duty.
In the wording a student can write in an exam: article 226 empowers a High Court to issue directions, orders or writs to any person or authority, including in appropriate cases any Government, for the enforcement of the fundamental rights and for any other purpose. The words "any person or authority" are wider than "the State" in article 12, and the words "for any other purpose" extend the jurisdiction beyond the enforcement of fundamental rights to the enforcement of legal rights generally. The consequence is that a body which is not State under article 12, so that no petition lies against it under article 32, may nevertheless be amenable to article 226 if it discharges a public function or owes a public duty. In Zee Telefilms Ltd v. Union of India the Supreme Court, having held that the Board of Control for Cricket in India is not State, said that an aggrieved party may nevertheless seek a remedy under article 226, which is much wider than article 32.
Why the route exists
Two facts create the gap this doctrine fills.
Article 12 has narrowed, as [The Retreat, and What Survived It] describes: cumulative facts, particular and pervasive control, and no mere regulatory control.
Public power has dispersed. Functions once performed by departments are now performed by companies, societies, self-regulatory bodies, professional councils and concessionaires. Some are State on the Pradeep Kumar Biswas test and many are not.
If article 12 were the only gate, a person dealing with a body that exercises real public power over them, controls entry to a profession, allocates a scarce public resource, or selects a national team, would have no public law remedy at all. Article 226 prevents that.
The two jurisdictions, compared
Set them side by side, because a problem question usually asks which one is available.
Article 32 lies only against the State as defined in article 12; only for the enforcement of fundamental rights; in the Supreme Court; and it is itself a fundamental right, so the Court cannot decline it on the ground that another remedy exists.
Article 226 lies against any person or authority; for the enforcement of fundamental rights and for any other purpose, which includes any legal right; in the High Court; and it is discretionary, so the existence of an alternative remedy is a relevant consideration, though not an absolute bar.
Two further differences. Article 226 is territorially limited, though the power extends to any authority or person outside the territorial jurisdiction if the cause of action arises wholly or in part within it. And article 32 cannot be suspended except as provided by article 359, and after the Forty-fourth Amendment not at all in respect of articles 20 and 21.
Private Bodies and Public Functions
What makes a function public
There is no exhaustive definition, and an answer should say so and then give the indicia.
The function is one the State would otherwise perform. Education, health, the supply of essential services, the allocation of a public resource.
The body has a monopoly or near monopoly over it, so that a person who wants the service has nowhere else to go.
The body's decisions affect the public or a section of it, not only the parties to a contract.
The body has been entrusted with the function by statute or by the State, or has been permitted to occupy the field in place of the State.
There is a public element in the duty, meaning an obligation owed to the public rather than only under a private agreement.
The consistent limitation is that a purely contractual obligation is not a public duty. A private employee dismissed in breach of contract by a private employer has a suit, not a writ, however large the employer. The public element must be in the duty sought to be enforced, not merely in the identity of the body.
The authority
Facts. Zee Telefilms Ltd v. Union of India, decided 2 February 2005 by five judges. Zee challenged the termination of its telecast rights by the Board of Control for Cricket in India. The preliminary question was whether the Board is "State" so that article 32 lies.
Held. The Board is not "State", because it is not created by statute, no share capital is held by government, it receives practically no government funding, its monopoly is not State conferred or State protected, and the control over it is only regulatory. But the Board does discharge duties, such as selecting the Indian cricket team and controlling the activities of players, which are akin to public duties or State functions; and although the remedy under article 32 is not available, that does not mean the violator of a right goes free. An aggrieved party may seek a remedy in the ordinary course of law or by way of a writ petition under article 226, which is much wider than article 32. The Court cited Andi Mukta Sadguru Trust v. V.R. Rudani for the proposition that article 226 confers wide powers on the High Courts to issue writs, a striking departure from English law.
Why it matters. It is the clearest modern statement that the two jurisdictions are not coextensive, and that the narrowing of article 12 does not leave the citizen without a public law remedy. It also identifies the test on the article 226 side as the nature of the duty, not the status of the body.
Private Bodies and Public Functions
Andi Mukta is the leading authority on the public duty test and it is in the case bank's queue; its report has not been read in the session that wrote this chapter, so it is named without a citation and nothing is attributed to it beyond the proposition Zee Telefilms itself quotes.
How to answer a problem
Four steps, in order.
One, is the body State under article 12? Apply Pradeep Kumar Biswas: cumulative facts, financial, functional and administrative domination, particular and pervasive, and not merely regulatory. If yes, article 32 and article 226 are both available and Part III binds directly.
Two, if not, is the duty a public duty? Look at the function, the monopoly, the effect on the public, the entrustment, and the public element. If yes, article 226 is available.
Three, is the obligation purely contractual? If the complaint is only that a contract has been broken, the writ jurisdiction will usually be declined however public the body, and the remedy is a suit.
Four, what right is being enforced? Under article 226 it need not be a fundamental right: "any other purpose" covers a statutory right and a legal right generally.
What this leaves unresolved
Two things, and an LL.M. answer gains by naming them.
The remedy is procedural, not substantive. Article 226 gives access to a court. It does not make Part III bind the private body. So a court may quash an arbitrary decision as a breach of a public duty, and may draw on the standards of article 14 in deciding what arbitrariness means, without holding that the body was bound by article 14 at all. Whether that distinction survives scrutiny is a fair question.
It works only where a High Court will take the case. Article 226 is discretionary, and the discretion is exercised against a petitioner with an alternative remedy. A person dealing with a large private provider of an essential service may be told to sue, which is precisely the outcome the doctrine was developed to avoid.
A worked example
A private university, established under a State Act but privately funded and privately managed, expels a student without a hearing. Its own statutes require a hearing. The student petitions the High Court under article 226 and, in the alternative, the Supreme Court under article 32.
Article 32 first. The university must be State under article 12. Being established under a State Act is not enough on its own: the question is cumulative domination that is particular and pervasive, and privately funded and privately managed points away from it. Assume it fails. Article 32 is unavailable.
Private Bodies and Public Functions
Article 226. The words are "any person or authority", and the jurisdiction extends "for any other purpose", so it reaches beyond the State and beyond fundamental rights. Ask whether there is a public function or a public duty.
Is there? Conferring degrees is a function the State would otherwise perform and which the university performs under statutory authority. Its decisions affect a section of the public. Expulsion determines a student's academic standing in a way no private contract does. There is a public element.
The limitation to test. A purely contractual obligation is not a public duty. If the complaint were about fees or a hostel booking, the writ would likely be refused. But the duty here arises under the university's own statutes made under the Act, not under a private agreement, and depriving a student of a hearing those statutes require is a breach of a public duty.
Answer. Article 32 fails; article 226 lies. Note what that gives her: a forum and a remedy, not a holding that the university is bound by article 14. The court may still measure the decision by standards of fairness drawn from administrative law.
Quick revision
- Article 226 reaches "any person or authority" and extends "for any other purpose", so it is wider than article 32 in both respects.
- A body outside article 12 may still be amenable to article 226 if it discharges a public function or owes a public duty.
- The indicia: a function the State would otherwise perform, monopoly, effect on the public, entrustment, and a public element in the duty.
- A purely contractual obligation is not a public duty, however large the body.
- Zee Telefilms: the BCCI is not State, but its functions are akin to public duties and article 226 is available, being much wider than article 32.
- The limitation: article 226 supplies a forum, not the substantive application of Part III to a private body.
Test yourself
1. Compare articles 32 and 226 on four points: against whom, for what, where, and with what discretion.
2. What are the indicia that a function is public?
3. Why is a purely contractual obligation not a public duty, however large the body?
4. What did Zee Telefilms say about the remedy available against a body that is not State?
5. "Article 226 supplies a forum, not the substantive application of Part III." Explain, and say why that matters.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.