Writs Against Private Bodies Performing Public Functions: The Public Duty Test under Article 226

Article 12 defines the State for the purposes of Part III, and a body that falls outside it cannot be proceeded against for the infringement of a fundamental right. But Article 226 is not confined to fundamental rights, nor to the State: it empowers a High Court to issue writs to any person or authority for any purpose. That difference opened a question of some importance as public functions came increasingly to be performed by bodies that are private in form, such as aided educational institutions, professional regulators, sporting federations, privatised utilities and service providers. The answer Indian law has reached is that what matters is the nature of the duty, not the character of the body. This topic sets out that test, its application, and the boundary it draws against private employment and contract.

1. Why Article 226 Reaches Further than Article 12

Three features of Article 226 carry it beyond the State. Its language extends to any person or authority, without limiting the class. Its purposes extend to the enforcement of fundamental rights and for any other purpose, so that ordinary legal rights and public duties are within it. And its remedies include directions and orders of any kind, so the court is not confined by the technicalities that once limited mandamus in England.

The practical consequence is a two-tier position. A body that is State under Article 12 is amenable to both Article 32 and Article 226 and is bound by the fundamental rights in full. A body that is not State may still be amenable to Article 226 in respect of its public functions, though not under Article 32 and not for the enforcement of fundamental rights as such.

2. The Foundational Decision

📖 Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691

Facts: A science college run by a private trust, affiliated to a university and receiving government aid, was closed down, and the teachers claimed terminal benefits computed in accordance with the pay scales prescribed by the university under its statutes. The trust resisted a writ petition on the ground that it was a private body, not an authority under Article 12, and that the relationship with the teachers was contractual.

Held: The Supreme Court held the writ maintainable and granted relief. It held that the term authority in Article 226 must receive a liberal meaning, and that Article 226 is not confined by the tests of Article 12: the words any person or authority are not to be confined to statutory authorities and instrumentalities of the State, and may cover any other person or body performing a public duty. The form of the body is not decisive; what is relevant is the nature of the duty imposed on it. A duty may arise from a statute, from statutory rules or regulations, or from the nature of the office or function; where a private body is charged with a public duty and discharges a public function, mandamus lies to compel performance. The affiliated college performed the public function of imparting education, was bound by the university statutes as to pay scales, and could not evade a duty of that character by pointing to its private constitution.

Ratio: The leading Indian authority. The word authority in Article 226 is wider than in Article 12, and a writ lies against a private body performing a public duty or function, the test being the nature of the duty rather than the form of the body.

3. The Position Restated

📖 Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649

Facts: The Board of Control for Cricket in India terminated a telecast rights agreement, and the aggrieved company moved the Supreme Court under Article 32, contending that the Board was State within Article 12 because it controlled the game of cricket in India, selected the national team and exercised a monopoly over the sport.

Held: A Constitution Bench held by majority that the Board is not State under Article 12. It is a society registered under an ordinary statute, is not created by a statute, receives no financial assistance from the Government, is not subject to governmental control over its management, and enjoys no State-conferred monopoly; the functions it discharges, though important and of public interest, are not governmental functions. The petition under Article 32 was therefore not maintainable. But the majority added an important qualification: even so, the Board discharges certain duties of a public nature, and where such a duty is in question the aggrieved party is not without remedy, since a writ under Article 226 would lie against the Board in respect of those functions, that Article being wider than Article 32 and extending to any person or authority.

Ratio: Not being State under Article 12 does not put a body beyond Article 226. Where it discharges duties of a public nature, a writ lies against it to that extent, the remedy under Article 226 surviving the failure of the Article 12 test.

4. What Makes a Function Public

Indicator	Weight
The function is one the State would otherwise perform	Strong; the classic marker of a public function
The body exercises monopoly or regulatory control over a field	Strong, particularly where participation is impossible without its approval
The duty is imposed by statute, rules or regulations	Strong; a statutory duty is public almost by definition
The body's decisions affect the public or a large class	Significant, especially where the affected persons have no choice of provider
The body receives substantial public funding or facilities	Relevant, though not conclusive by itself
The body is subject to governmental supervision or approval	Relevant to both the Article 12 and public function questions
The relationship in question is purely contractual	Points against; contract is a private matter
The body is a private employer and the dispute is one of employment	Points against; service disputes with private employers are outside Article 226

The boundary against private employment was drawn in Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657, where the Court held that a writ will not issue against a private company in respect of a dispute arising out of a private contract of employment, since the function performed is not public and no public duty is involved. The distinction is between a body exercising power over others because the law or the structure of a field gives it that power, and a body acting on rights it holds under a contract like any other party.

5. Bodies Held Amenable, and the Limits

Aided and affiliated educational institutions, in respect of duties imposed by statutes, rules or affiliation conditions (Andi Mukta).
Professional and regulatory bodies, in respect of registration, standards and disciplinary functions.
Sporting federations with monopoly control, in respect of duties of a public nature (Zee Telefilms).
Private bodies performing statutory functions, such as those exercising delegated licensing or certification powers.
Not amenable: a purely private employer in an employment dispute (Binny Ltd.); a club or society in its internal affairs; a company in the performance of an ordinary commercial contract; a private school in a matter governed only by contract with parents.
Amenable only to the extent of the public function. A body may be subject to Article 226 for some of what it does and not for the rest, and the writ reaches only the public part.

6. The Three Questions in Sequence

Is the body State under Article 12? If yes, both Article 32 and Article 226 are available and the fundamental rights bind it fully.
If not, does it perform a public function or owe a public duty? If yes, Article 226 is available in respect of that function (Zee Telefilms).
Is the particular dispute within that public function? Even an amenable body is not subject to the writ in its private or contractual dealings, so the writ reaches the function and not the body at large.

⚠ Amenability is decided function by function, not body by body

The question is often put as whether a writ lies against a particular institution, and that is the wrong form. A university may be answerable under Article 226 for the conduct of an examination and not for the terms on which it hires a gardener; a federation may be answerable for the selection criteria it imposes on those who must go through it and not for the price at which it sells its broadcasting rights. The enquiry is therefore whether this duty, in respect of which relief is sought, is public, and a body that has been held amenable in one reported case is not thereby amenable in every dispute in which it is named.

7. The Position in Summary

Article 226 extends to any person or authority and for any purpose, and is therefore wider than Article 12 and Article 32 in its reach.
The word authority in Article 226 receives a liberal meaning, and a writ lies against a private body performing a public duty, the test being the nature of the duty rather than the form of the body (Andi Mukta).
A body that fails the Article 12 test may still be amenable under Article 226 in respect of duties of a public nature (Zee Telefilms).
Indicators of a public function include performance of a function the State would otherwise discharge, monopoly or regulatory control, statutory duties and effect on a large class; purely contractual and private employment matters fall outside (Binny Ltd.).
Amenability is decided function by function: a writ reaches the public part of what a body does, not the body in all its dealings.

8. Related Topics and Provisions

Writ Against Government Companies and Public Corporations (Topic 123): the Article 12 side of the question.
Constitutional Writs (Topic 106) and The Five Writs Compared (Topic 114): the reach of Article 226.
Writ of Mandamus (Topic 108): the public duty requirement in detail.
Natural Justice in Government Contracts (Topic 85): the contractual boundary.
Administrative Adjudication (Topic 20): bodies exercising adjudicatory functions.
Constitution of India: Articles 12, 14, 32, 226 and 227.