In the case of Uttam Chand Rawat v. The State of U.P. & Ors. (2021) W.P. 9814/ 2020, a three-judge divisional bench of the Allahabad High Court of Acting Chief Justice M. N. Bhandari, Justice Prakash Padia and Justice S. K. Singh weighed in on the question of whether private institutions come under the purview of judicial review of Article 226 of the Constitution of India. In the case of Roychan Abraham v. The State of U.P. & Ors. (2021) All SCC 3935, it was held that a private educational institute performs public duty (primarily a state function), wherein it is amenable to judicial review of a High Court under Article 226 of the Constitution of India owing to its functions of pubic duty. The question before the court in the present case is about the maintainability of a writ petition against a person/ entity discharging pubic duties/ functions which may not fall within the definition of “State” under Article 12 of the Constitution of India. The Supreme Court in the case of Ramakrishnan Mission & Anr. v. Kago Kunya & Ors. (2019) 16 SCC 303, laid down a twin test to check on the maintainability of a writ petition against a person/ entity: a) The authority must discharge a pubic function/ duty, and b) The writ petition must challenge an action falling within the ambit of public law. The Supreme Court held that a petition under Article 226 is not maintainable against an authority discharging public duty/ function unless the action of the said authority falls within the domain of public law. In the case, the court added that the writ petition against the hospital was not maintainable even if the said hospital is discharging public duty unless the element of public function is akin to the work/ functions performed by the state in its sovereign capacity
The Supreme Court in the case of K. K. Saksena v. International Commission on Irrigation and Drainage & Ors. (2015) 4 SCC 670, held that private law remedies have no place in the writ jurisdiction of a High Court, wherein private law involves the relationship between two private individuals(ex: Law of Contracts, Law of Tort, etcetera). The court added that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. The court held that the disputes between the aforementioned persons can be entertained under a writ petition if and only if the court of law is satisfied that the disputed action of the person/s is in the domain of public law and not private law since contractual/ commercial arguments fall within the domain of civil law. The reason for the aforementioned position of the Supreme Court is the exclusion of a private body from the definition of “State” within Article 12 of the Indian Constitution, wherein Article 12 defines a state as the: a) Government and Parliament of India, b) Government and Legislature for each state, and c) local or other authorities within the territory of India which may be under the control of the Government of India.
The word “public function” was outlined in the case of Binny Ltd. & Anr. v. V. Sadasivan & Ors. (2005) 6 SCC 657, wherein an entity/ person would be performing public function when it seeks to achieve collective benefit for the larger sections of public and that Article 226 is a public law remedy that is available against an entity performing a public law function. In the case of Federal Bank Ltd. v. Sagar Thomas & Ors. (2003) 10 SCC 333, a writ petition was made against Federal Bank Ltd.; however, a two-judge bench of the Supreme Court of Justice Brijesh and Justice Arun Kumar observed that the entity was incorporated under the Companies Act, 2013, wherein it was governed and regulated by the contemporary provisions of banking; therefore, the maintainability of the writ petition was rejected by the court since the petition under Article 226 can be held against: a) The State (Government), b) An Authority, c) A Statutory Body, d) An Instrumentality/ Agency of the State, e) A Company which is either financed or controlled by the State, f) A Private Body run substantially on the funding of the State, g) A Private Body (any body outside the scope of Article 12 of the Indian Constitution) discharging either Public Duty or a positive obligation of public nature, h) A person/ entity under the liability to discharge any function under any statute with the compulsion to perform the said statutory function. Although the appellant was incorporated under the Companies Act, 2013 whilst being governed by the regulatory provisions under the Industries (Development and Regulation) Act, 1951, the company’s affairs are devoid of any control from the state; hence, the court held that the appellant was a private body.
In a nutshell, a writ petition under Article 226 of the Indian Constitution is maintainable against a person/ entity which may be a private body if and only if the said person/ entity discharges public functions/ duties, wherein the public function is a function performed by the state in its sovereign capacity and if the issue in question for the petition falls within the purview of public law. It is worth mentioning that the maintainability of the writ depends on the nature of functions performed by the entity and not only on the nature of the entity.
The divisional bench of the Allahabad High Court laid down a twin test to check the maintainability of a writ petition under Article 226 of the Indian Constitution against a person/ entity:
- The person/ entity is discharging public duty/ functions.
- The disputed action of the petition under challenge falls within the domain of public law and neither under private law nor under common law (including the contractual obligations between the parties in dispute).