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Article 12 and Judicial Review of Administrative Action: An analysis

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 Indian Law Review

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Article 12 and judicial review of administrative

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Santanu Sabhapandit

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INDIAN LAW REVIEW
https://doi.org/10.1080/24730580.2018.1512842

RESEARCH ARTICLE

Article 12 and judicial review of administrative action: an

analysis
Santanu Sabhapandit
Faculty of Law, Monash University, Melbourne, Australia

ABSTRACT ARTICLE HISTORY

The centrality of the objective of protecting fundamental rights to Received 25 February 2018
judicial review in India is self-evident from Article 32 and Article 226 Revised 29 July 2018
of the Constitution. Article 12 defines “State” and since fundamental Accepted 14 August 2018
rights are normally enforceable only against the “State”, it acts as the KEYWORDS
broad criterion for amenability to judicial review. The judiciary’s Judicial review of
approach towards Article 12 has had a lasting effect on how amen- administrative action;
ability criteria for judicial review are perceived in India. Under Article amenability criteria;
226, judicial review may also be conducted for purposes other than fundamental rights;
the protection of fundamental rights. However, the purpose and administrative law; India
scope of, as well as the amenability criteria for such type of judicial
review remain unclear. This article demonstrates that a peremptory
effect of Article 12 diverts focus from the context of determining
amenability and prevents proper engagement with a sphere of
judicial review, whose purpose is broader and independent of the
purpose of protecting fundamental rights.

I. Introduction
The determination of amenability to judicial review is one of the most interesting areas
of administrative law as it can bring a range of issues into focus. It compels one to
inquire whether an entity or action fulfils certain criteria discernible from contextual
analysis of previous judicial pronouncements. Where, however, such criteria are not
readily met, it compels further inquiries into the purpose of judicial review and whether
and how amenability of the entity or action to judicial review advances such purpose. In
this article, I explore one aspect of the amenability criteria1 to judicial review in India.
More specifically, I explore the influence of Article 12 on the determination of amen-
ability to judicial review under Article 226. The scope of the article is limited to judicial
review of administration action. Also, of the two types of judicial review permitted
under Article 226, i.e. judicial review for the protection of fundamental rights (referred
to as the “rights-based review” hereinafter)2 and judicial review for purposes other than

CONTACT Santanu Sabhapandit santanu.sabhapandit@monash.edu Faculty of Law, Monash University,

Melbourne, VIC 3168, Australia
1
The term ‘amenability criteria’ is used here to refer to the factors that determine the amenability of an entity or action
to judicial review. Amenability criteria act as the gatekeeper that determines whether the courts have jurisdiction to
review the impugned action of an entity.
2
Judicial review of administrative action for the protection of fundamental rights can be conducted under Article 32 by
the SCI and under Article 226 by the HCs. The term ‘rights-based review’ in this article is used to mean judicial review
for protection of fundamental rights under either of these two provisions.
© 2018 Informa UK Limited, trading as Taylor & Francis Group
2 S. SABHAPANDIT

the protection of fundamental rights (referred to as the “non-rights-based” review

hereinafter), the focus will be on the latter.
Enforcement of fundamental rights is one of the major objectives of judicial review
of administrative action. This is explicitly provided under Article 32 and Article 226 of
the Constitution of India, wherein necessary jurisdictions are granted to the Supreme
Court of India (SCI) and the High Courts (HCs), respectively, to conduct judicial
review. Naturally, fundamental rights play a crucial role in the judiciary’s interpretation
of the scope of judicial review, including in the determination of amenability to judicial
review. Broadly, the influence of fundamental rights on the scope of judicial review of
administrative action may be classified into two types – i) where the judiciary has, in
promulgating the grounds of reviewing administrative action, linked those grounds to
fundamental rights and ii) where amenability criteria has been developed or applied by
explicit or implicit reference to fundamental rights. This article’s focus is on the second
type of influence. The first type of influence pertains to the ground of judicial review
instead of the question of amenability. However, certain aspects of the first type have
important implications for amenability criteria for non-rights-based judicial review.
These are included in the analysis.
Article 12, which defines “State”, has a central role in determining the amenability to
rights-based judicial review. This is because fundamental rights are normally assumed
to be enforceable only against the state. Hence, Article 12 provides the determinative
criterion for amenability to rights-based judicial review. The factors identified by the
judiciary for determining amenability to rights-based review are nothing but factors
that determine if an entity falls within the definition of “State”. I explore the influence
of this jurisprudence on the amenability criteria for non-rights-based review by exam-
ining how Article 12 is adopted, explicitly or implicitly, as the criteria for amenability in
cases that do not involve violation of fundamental rights. This is done by reviewing
cases involving judicial review of entities that are ostensibly private or non-government,
as these cases best demonstrate the reasoning adopted for the determination of
amenability.
Majority of the factors identified for determining amenability to rights-based review
are indicative of government nexus and reliance on them results in a skewed emphasis
on government nexus in the determination of amenability. While these factors are well
defined, the judiciary’s frequent reliance on them for determining amenability to right-
based review has led to certain adverse results. At the same time, these factors are also
resorted in the determination of amenability to non-rights-based review. This, on one
hand, spreads the adverse results associated with rights-based review into the sphere of
non-rights-based review, and on the other, prevents the development of non-rights-
based review as a distinct type of review. This article seeks to shed light on these issues.
The structure of the article is as follows – Section II briefly discusses the main
Constitutional provisions pertaining to the scope of judicial review in India. In Section
III, a brief discussion on the influence of fundamental rights on the grounds of judicial
review is followed by a critical review of some of the relevant cases that established the
amenability criteria for rights-based judicial review, but also created certain long-
standing issues for judicial review of administrative action. Section IV briefly introduces
the state of jurisprudence pertaining to non-rights-based review before moving on to
 INDIAN LAW REVIEW 3

identify the aspects where Article 12 influences the determination of amenability to

non-rights-based review. Section V draws the conclusions from the analysis.

II. Constitutional provisions for judicial review

The institutional set-up for judicial review in India, i.e. the review jurisdictions of the
SCI and the HCs, and remedies of judicial review, i.e. the writs, are inheritances from
British rule.3 However, the adoption of a written constitution4 has ensured that despite
the obvious resemblance to the system of judicial review in the UK, judicial review in
India has some important distinguishing features. For example, under Article 13 of the
Constitution, Parliament’s legislative powers are expressly made subject to fundamental
rights,5 and any law made by Parliament that seeks to take away or abridge fundamental
rights may be declared void upon judicial review.6 Hence, the scope of judicial review in
India extends to reviewing both legislative and administrative actions.
There are strong linkages between administrative law and constitutional law in India.
Judicial review is part of the “basic structure”7 of the Constitution, which cannot be
abolished even by an amendment. The Constitution is the source not only of the
jurisdiction of the courts to conduct judicial review but also of some of the grounds
of reviewing administrative action. Violation of fundamental rights under Part III8 of
the Constitution is a ground of judicial review, and the courts have sometimes held
certain common law grounds of judicial review, such as natural justice, to be part of
fundamental rights.9
Article 32 and Article 226 of the Constitution are the main provisions that confer the
SCI and the HCs, respectively, with writ jurisdiction.10 Article 32 provides:
3
MP Jain and SN Jain, Principles of Administrative Law (Justice DM Dharmadhikari (ed), 4th edn, Wadhwa and Company
2005) 513. The writ jurisdiction was first introduced through establishment of the Supreme Court of Calcutta in 1774.
Later, similar courts with writ jurisdictions were established in other provinces. In 1861, a number of High Courts were
established in place of existing Supreme Courts, but with the same writ jurisdiction as the abolished Supreme Courts.
The system of courts in India under British rule had gone through a number of changes till the adoption of the Indian
Constitution in 1950. The Supreme Court and the High Courts have been granted writ jurisdictions under the
Constitution. See SS Shilwant, Legal and Constitutional History of India (Sanjay Prakashan 2003) 287-9.
4
The oppression under the British rule with persistent denial of human freedom is said to have resulted in an ardent
conviction in the Indian leaders that any unwritten assurance was not an effective guarantee or remedy against a
possible interference by the state. The US Bill of Rights supplied the motivation for declaration of the fundamental
rights in the new Constitution of India. See SN Ray, Judicial Review and Fundamental Rights (Eastern Law House 1974)
92. Also see Durga Das Basu, Tagore Law Lectures on Limited Government and Judicial Review (S C Sarkar and Sons
1972) 161.
5
The ‘fundamental rights’ guaranteed under Part III of the Indian Constitution are a wide spectrum of human rights,
mainly in the nature of civil and political rights.
6
Article 13(2) provides, ‘The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be void …’.
7
As held in Kesavananda Bharti v State of Kerala AIR 1973 SC 1461. The term ‘basic foundation and structure’ of the
Constitution was coined in this SCI judgment to refer to certain features of the Constitution that cannot be excluded
by legislation or constitutional amendment. In this judgment as well as in several later judgments, the SCI has
declared several other features as part of the basic structure of the Constitution.
8
The various rights granted under Part III may be put under the following broad categories: (i) right to equality (Articles
14–18); (ii) right to freedom (Articles 19–22); (iii) right against exploitation (Articles 23–24); (iv) right to freedom of
religion (Articles 25–28); (v) cultural and educational rights (Articles 29–30); and (vi) right to constitutional remedies
(Articles 32–35). See, SN Ray, Judicial Review and Fundamental Rights (Eastern Law House 1974) 154.
9
Union of India v Tulsiram Patel (1985) 3 SCC 398.
10
India has an unified judicial system with the SCI at the apex. Below the SCI, there are HCs that are at the helm of the
judicial system of each Indian state. The SCI is the ultimate court of appeal in all civil and criminal matters, the
supreme interpreter of the Constitution and the final interpreter of the law of the land. See MP Jain, Indian
Constitutional Law (6th edn, Lexis Nexis Butterworths Wadhwa 2010), chs 4, 8.
4 S. SABHAPANDIT

Remedies for enforcement of rights conferred by this part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

By “rights conferred by this Part”, the Article refers to Part III of the Constitution,
containing the fundamental rights. The right to approach the SCI under Article 32 for
enforcement of fundamental rights is itself considered a fundamental right.
Similarly, Article 226 of the Constitution provides:
Power of high courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories direc-
tions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibi-
tions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
….
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause (2) of Article 32.

Under Article 226, the writ jurisdiction of the HCs is broader than the writ
jurisdiction of the SCI under Article 32. A writ may be issued under Article 226 to
(i) any person or authority; and for (ii) enforcement of fundamental rights; and (iii) any
other purpose. The scope of the writ jurisdiction under Article 226 has been described
by Justice Subba Rao in Dwarkanath v ITO11 in the following words: “This article is
couched in comprehensive phraseology and it ex facie confers a wide power on the high
court to reach injustice wherever it is found.”
This, arguably, explains the words “any other purpose”, as the writ jurisdiction of the
HCs is not limited to protection of fundamental rights, unlike the writ jurisdiction of
the SCI under Article 32. The HCs may issue writs whenever there is an infringement of
a legal right.12
The following observation of Justice Subba Rao is also explanatory of the scope of
remedies under Article 226.
It can issue writs in the nature of prerogative writs as understood in England; but the scope
of those writs also is widened by the use of the expression ‘nature’, for the said expression
does not equate the writs that can be issued in India with those in England, but only draws
an analogy from them. That apart, High Courts can also issue directions, orders or writs
other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the
peculiar and complicated requirements of this country.13

Both Article 32 and Article 226 suggest a clear emphasis on the protection of funda-
mental rights in conferring review jurisdictions to the courts.
11
(1965) 3 SCR 536, [4].
12
Carlsbad Mineral Water Mfg Co Ltd v HM Jagtiani AIR 1952 Cal 315. Please also see HM Seervai, Constitutional Law of
India – A Critical Commentary (4th edn, vol 2, Universal Book Traders 1999) 1579-82.
13
AIR 1952 Cal 315, [4].
 INDIAN LAW REVIEW 5

Beyond the express constitutional provisions on judicial review, however, Indian

administrative law is primarily judge made law, whose principles are to be discerned
through a process of refinement of judicial opinion expressed in a large number of
judicial pronouncements.14 Other than the ground of protecting fundamental rights,
the scope and other grounds of judicial review are not explicit from these provisions but
have to be inferred from judicial pronouncements. Given the large number of cases, not
only in the SCI but also in the HCs, the process of deducing the relevant principles
from judicial opinion expressed over time and across different courts is a challenging
task. The complexity of the task is further intensified by factors such as the intertwining
of the purpose of protecting fundamental rights with the purpose for conducting non-
rights-based review. This will be evident from the following analyses.

III. Fundamental rights and judicial review

As stated above, there are two ways in which fundamental rights influence the scope of
judicial review. The first type of influence pertains to the linkages between fundamental
rights and grounds of judicial review. It is beyond the scope of this article to engage
with the extent to which linkages have been drawn between fundamental rights and
grounds of review of administrative action. In the following sub-section A, I briefly
explain how the judiciary has drawn those linkages. Its implications on the question of
determining amenability to judicial review are discussed in sub-section B.

A. Fundamental rights and grounds of reviewing administrative action

With the intertwining of the power of judicial review by courts with the objective of
enforcement of fundamental rights, violation of a fundamental right is naturally one of
the prominent grounds for judicial review. The violation of the fundamental right to
equality under Article 1415 has been a common ground to seek judicial review of
administrative actions, both under Article 32 and Article 226.16 Notably, however, the
courts have interpreted the right to equality under Article 14 to include certain
common law grounds of judicial review thereby elevating those common law grounds
to fundamental rights. The following quote from Justice DP Madon in Union of India v
Tulsiram Patel17 is illustrative of how the principles of natural justice have been
elevated to the status of fundamental rights by reading them as part of Article 14:
…violation of a rule of natural justice results in arbitrariness which is the same as
discrimination; where discrimination is the result of state action, it is a violation of
Article 14: therefore, a violation of a principle of natural justice by a State action is a
violation of Article 14.

14
Upendra Baxi, ‘The Myth and Reality of the Indian Administrative Law’ in IP Massey, Administrative Law (8th edn,
Eastern Book Company 2012).
15
Article 14 reads ‘…The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India.’
16
EP Royappa v State of Tamil Nadu & Anr (1974) 4 SCC 3; Maneka Gandhi v Union of India (1978) 1 SCC 248; Workmen of
Meenakshi Mills Ltd and Ors v Meenakshi Mills Ltd (1992) 3 SCC 336; Meerut Development Authority v Association of
Management Studies (2009) 6 SCC 171; Haryana State Industrial Development Corporation v Shakuntla (2010) 12 SCC
448.
17
(1985) 3 SCC 398.
6 S. SABHAPANDIT

This phenomenon has been described as constitutionalization of administrative law and

has been criticized, mainly in the context of judicial review of legislative action.18 In the
context of judicial review of administrative action, constitutionalization has also been
criticized for leading to certain anomalous results in the context of application of the
principles of natural justice.19
The linkages of other common law grounds of judicial review such as substantive or
procedural ultra vires, failure to consider relevant facts or legitimate expectation to
Article 14 or any other fundamental rights, are less well articulated. However, Article 14
has been interpreted as a general rule against arbitrary state action.20 Arguably, arbi-
trariness is a protean concept that can accommodate many of the grounds for seeking
judicial review of administrative action. For instance, review for arbitrariness under
Article 14 is said to be same as review for unreasonableness.21 There are views that
arbitrariness may also arise when administrative discretion is exercised without appli-
cation of mind or under somebody’s dictation or on irrelevant considerations or out of
malice.22
A detailed examination of the linkage (or the lack of it) between the grounds of
judicial review and the fundamental rights is beyond the scope of this article. For the
purposes of this article, however, it may suffice to note that the elevation of a common
law ground of review to a fundamental right enables the petitioner to allege violation of
fundamental rights in situations where no fundamental rights were recognized pre-
viously. Also, it implies that the petitioner does not have to establish his standing
separately from the ground of review, since violation of a fundamental right can
simultaneously provide the ground of review as well as standing for the petitioner.
The general implication of reading common law grounds of judicial review into Article
14 is said to make invocation of the writ jurisdiction easier for petitioners.23 Petitioners
are not required to discharge any evidentiary thresholds showing violation of any of the
fundamental rights. They can simply allege arbitrary and unreasonable state action.24 A
linkage drawn between a ground of judicial review and a fundamental right may mean
that either type of judicial review, i.e. rights-based judicial review as well as non-rights-
based judicial review may be available to a petitioner. The implication of this on
amenability criteria is further analysed below.

B. Fundamental rights and amenability criteria

The Indian judiciary has developed a number of criteria that determine the amenability
of an entity or action to judicial review. These criteria may be analysed both for their (i)
institutional aspect, i.e. criteria that determines amenability based on the nature of the
18
See HM Seervai, Constitutional Law of India (vol 1, Universal Law Publishing 2002) 438-9; Tarunabh Khaitan ‘Equality:
Legislative Review under Article 14’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford
Handbook of the Indian Constitution, (OUP 2016) 699.
19
Raeesa Vakil, ‘Constitutionalizing administrative law in the Indian Supreme Court: Natural Justice and fundamental
rights’ (2018) 16 ICON 475.
20
EP Royappa v State of Tamil Nadu (1974) 4 SCC 3; Maneka Gandhi v Union of India (1978) 1 SCC 248.
21
Khaitan (n 18) 711-4.
22
SP Sathe, Administrative Law (7th edn, Lexis Nexis 2004) 440.
23
Upendra Baxi, ‘The Myth and Reality of the Indian Administrative Law’ in IP Massey, Administrative Law (8th edn,
Eastern Book Company 2012).
24
ibid.
 INDIAN LAW REVIEW 7

entity and (ii) functional aspect, i.e. criteria that determines amenability based on the
nature of the function or duty carried out by the entity.25 The following review of
relevant cases indicate certain shifts in the emphasis on these two aspects of amenability
criteria and the role of fundamental rights in causing those shifts.
As stated above, Article 12 of the Constitution lies at the centre of the institutional
aspect of amenability criteria for rights-based judicial review. It provides an inclusive
definition of “State” for the purposes of Part III of the Constitution, which includes the
government and parliament of India, the government and the legislature of the states,
local authorities and “other authorities” within the territory of India or under the
control of the government of India. Article 12 is comparable to the concept of “core
public authorities” under Section 6 of the Human Rights Act, 1998 (HRA) of the UK.
However, unlike Section 6 of the HRA, Article 12 makes no reference to hybrid private
entities26 that may be considered part of “State” only with respect to the activities of
public nature but private for others. The phrase “other authorities” in Article 12 has
been a subject of judicial interpretation over many years, primarily for determining if
any ostensibly private entity falls within the scope of “other authorities” and, hence,
amenable to rights-based judicial review. Notably, interpretation of Article 12 has been
undertaken by the courts in writ petitions under Article 32 as well as Article 226. The
following analysis is based on some of the most cited judicial review cases where the
courts interpreted “other authorities”.
Rajasthan State Electricity Board v Mohan Lal27 (referred to as Rajasthan Electricity
hereafter), decided in 1967, is considered to be a seminal case on the interpretation of
Article 12.28 It involved a petition under Article 226 alleging violation of Article 14. One
of the issues was whether the entity in question (a body corporate constituted under the
provisions of the Electricity (Supply) Act 1948) fell within the term “other authorities”
under Article 12, and so was amenable to HC's jurisdiction under Article 226.29 It may be
pertinent to note that the issue of whether Article 12 is relevant for determining HC’s
jurisdiction under Article 226, in general, does not seem to have been in issue in this case.
Since violation of Article 14 was alleged, and Article 14 grants a right in specific reference
to the “State”, the relevance Article 12 in this case is evident. However, it may be noted
that since the jurisdiction under Article 226 is not limited to enforcement of Article 14 or
other fundamental rights, Article 12 is not relevant in all cases.
Delivering the majority judgment, Justice Bhargava held that an authority for the
purposes of Article 12 is a public administrative agency or corporation having powers
to carry out governmental or quasi-governmental functions.30 The majority judgment
interpreted the term “other authorities” to include all constitutional or statutory

25
Adopting the institutional and functional approaches of distinguishing public and private power, described by Prof.
Paul Craig. See Paul Craig, ‘Public Law and Control over Private Power’ in Michael Taggart (ed), The Province of
Administrative Law (Hart Publishing 1997) 196-7.
26
See Dawn Oliver, ‘The frontiers of the State: public authorities and public functions under the Human Rights Act’
(2000) Public Law (Aut) 476 for a discussion on Section 6 of the HRA.
27
1967 SCR (3) 377.
28
MP Jain and SN Jain, Principles of Administrative Law (4th edn, Wadhwa and Company 2005) 461.
29
It may be pertinent to note that the issue whether Article 12 is relevant for determining HCs jurisdiction under Article
226 does not seem to have been considered. Jurisdiction under Article 226 is not limited to enforcement of
fundamental rights and, hence, an insistence on Article 12 may be difficult to justify unless the claim was, as in
this case, based on violation of a fundamental right.
30
Rajasthan Electricity (n 27) [5].
8 S. SABHAPANDIT

authorities on whom powers are conferred by law.31 In a concurring but separate

opinion, Justice Shah took a somewhat narrower approach and emphasized that in
considering whether a statutory or constitutional body is an authority within the
meaning of Article 12, it is important to consider two aspects of legislative intention:
i) whether fundamental rights are intended to be enforced against the authority and ii)
whether the authority was intended to be invested with sovereign power to impose
restrictions on very important and basic fundamental freedoms. Arguably, the majority
judgment as well as the judgment of Justice Shah emphasizes on the functional aspect of
amenability.
Whereas for the majority judgment in Rajasthan Electricity the relevant test was
powers conferred by law, Justice Shah’s opinion required a higher threshold of “sover-
eign power” conferred by law that is capable of imposing restrictions on fundamental
freedoms. Both the aspects of this judgment were considered in the subsequent judg-
ment Sukhdev Singh and Ors v Bhagatram Sardar Singh32 (referred to as Sukhdev Singh
hereafter).
In Sukhdev Singh, the SCI had to determine whether a statutory corporation33 could
fall within the term “other authority” under Article 12.34 This case came to the SCI on
appeal against the decision in a writ petition filed under Article 226, where violation of
Article 14 was in issue. The following aspects of the judgment demonstrate a broad-
ening of the amenability criteria for rights-based review.

1. Application of the “sovereign power” test

The majority opinion observed that (i) the corporations under consideration had power
to make regulations that had the force of law35 and (ii) under their respective consti-
tutive statutes, the corporations had the power to give directions the disobedience of
which were punishable as a criminal offence. The majority relied on these factors to
hold that the corporations were “other authority” under Article 12. The reliance on the
law-making power or the coercive nature of the powers of the corporations indicates
that the majority in Sukhdev applied the “sovereign power” test propounded by Justice
Shah in Rajasthan Electricity.36
In his concurring but separate opinion, Justice Matthew, however, pointed that it
was only one of the three corporations which had the power to issue binding directions
to third parties.37 Hence, for Justice Matthew, the question was whether the other two
corporations, despite not having any power to issue binding directions, could still be
considered as “State”. In addressing this question, he followed a reasoning that was
distinct from the ratio in Rajasthan Electricity.
31
ibid [6].
32
1975 SCR (3) 619.
33
The case involved three statutory corporations, the Oil and Natural Gas Commission, the Industrial Finance
Corporation and the Life Insurance Corporation, each constituted by separate legislations.
34
This case also pertains to the question of violation Article 14. There is no clear indication in the reported judgment if
the original petition was filed in a HC under Article 226. However, since this case came to the SCI's consideration on
appeal, it is assumed that the original petition was filed under Article 226 alleging a violation of Article 14.
35
Sukhdev Singh (n 32) [67].
36
The same test, it seems, was also applied by Justice Alagiriswamy in his dissenting opinion. He was of the view that
since the regulations made by the corporations applied only to their employees and not to the public in general, the
regulations did not have the force of law and, hence, the test laid down in Rajasthan Electricity was not fulfiled.
37
Sukhdev Singh (n 32) [78].
 INDIAN LAW REVIEW 9

2. Expansion of state action and constitutional limitation

Justice Matthew adopted a different interpretation of the exercise of state power by
emphasizing that the social, economic and political powers held by the giant corpora-
tions or labour unions may no longer justify a belief that only the state has the power to
impact the freedom of individuals.38 He opined that the governing power, wherever
located, must be subject to the fundamental constitutional limitations and that it
warrants an expansion of the concept of state action.39 Justice Matthew stated that:

…the essential problem of liberty and equality is one of freedom from arbitrary restriction
and discrimination whenever and however imposed. The Constitution, therefore, should,
wherever possible, be so construed as to apply to arbitrary application of power against
individuals by centres of power.

However, Justice Mathew was also concerned about how far the expansion of state
action could go. He pointed out that any expansion must be limited by the
Constitutional scheme.40 In Justice Matthew’s opinion the Constitutional scheme
requires that, to be state action against which fundamental rights may be enforced,
the action must be either a law passed by the state or some action that is taken through
officers or agents of the state.41 In terms of the factors that should be considered in
determining if an action carried out by a corporation is state action, Justice Matthew
referred to a number of indicative factors and how such factors had been considered in
courts in the USA and the UK.42 Some of those factors were, whether the corporation
received state aid in terms of financial contribution or grant of tax exemptions or grant
of the power of eminent domain; and whether the corporation is furnishing an
important public service.43
Justice Matthew’s argumentation regarding the scope of “State” under Article 12 is
expansive in one aspect but conservative in another. On one hand, by reference to the
Civil Rights Cases and subsequent judgments in the US courts, he emphasized that there
has been a shift in judicial opinion from the traditional view that to consider an entity’s
actions as state action, the entity must wield authority or power to issue command or
that it must have the sovereign power to pass laws and regulations having the force of
law. His emphasis on this shift sets out the main point where he differed from the
earlier interpretation of state action in Rajasthan Electricity. The expansive approach
facilitated the subjection of those entities to judicial review, which, according to Justice
Matthew, did not fulfil the test laid down in Rajasthan Electricity.

38
ibid [91]. Justice Matthew relied on the pluralist theory of state. Neville Figgis and Harold Laski were mentioned as
advocates of this theory. Wolfgang Friedman’s ‘Law in Changing Society’ was also mentioned in support of the
argument that the power of organized groups compels a reassessment of the relation between group power and the
modern state.
39
ibid [93].
40
ibid [95].
41
ibid [95]. Justice Matthew opined that under the constitutional scheme, fundamental rights are, by and large,
enforceable against state action only. Hence, it is important to demonstrate some kind of state sanction for any
action to be considered a state action.
42
Amongst others, the US judgments in Marsh v Alabama 326 US 501(1946); Civil Rights cases 109 US 3; Kerr v Enoch
Pratt Free Library 326 US721 (1945); New York v United States 326 US 572 were referred to. Also, the UK judgment in
Pfizer v Minister of Health (1964) 1 Ch 614 was referred to.
43
Sukhdev Singh (n 32) [96], [97], [98] and [102].
10 S. SABHAPANDIT

In contrast, and perhaps induced by the language of Article 32,44 Justice Matthew’s
interpretation of the Constitutional scheme regarding control of governing power was
conservative. In his opinion, it is only against state action on which the Constitution
puts certain limitations and state action must be interpreted in terms of its potential to
infringe fundamental rights.45 By reference to Article 13(2), he opined that it is only
state action against which fundamental rights are guaranteed.46
As with the case of Rajasthan Electricity, violation of Article 14 was also alleged in
this case, so that the scope of judicial review had to be determined by reference to
Article 12. However, certain implications of Justice Matthew’s interpretation of the
Constitutional scheme for judicial review, may be noted:
(a) Justice Matthew embarked on the interpretation of the Constitutional scheme
and later applied it in this case under Article 226, based on the mere allegation of (and
not a determination of) a violation of Article 14. This implies that whether violation of
fundamental rights is alleged or not may determine the applicability of the
Constitutional scheme and the requirement of a state action, and accordingly, the
availability of judicial review against the impugned administrative action of an entity.
To illustrate, it may be recalled from the discussion in sub-section A that constitu-
tionalization of common law grounds of reviewing administrative action leaves the
petitioner with a choice of bringing action for either rights-based judicial review
(alleging a violation of fundamental rights) or non-rights-based judicial review (alleging
a common law ground), against the same administrative action. Further, it is clear from
the discussion under Section IV below that the amenability criteria for non-rights-based
review is different from rights-based review. Amenability to rights-based review does
not necessarily mean amenability to non-rights-based review.
The question of amenability is normally a preliminary issue that the courts deal with.
Allowing a mere allegation to dictate the choice of a different amenability criteria leads
to the situation where, for the same cause of action, an entity or action may not be
found amenable to rights-based judicial review whereas it might have been amenable to
non-rights-based review under different amenability criteria.
(b) In interpreting the Constitutional scheme, Justice Mathew relied on Article 13(2)
that expressly subjects the legislative actions of the state to the fundamental rights in
Part III of the Constitution. Article 13(2) refers to the laws made by the state. Arguably,
the emphasis of Article 13 is on preventing laws from violating fundamental rights.
Article 13(3)(a) provides an inclusive definition of “law” that also includes inter alia
orders, rules and notifications having the force of law. In contrast, Article 13(3)(b)
provides an inclusive definition of “laws in force” which refers to laws passed by
legislatures or other competent authorities. The definition of law is said to be elusive
and perplexing.47 To the extent it can be ascertained, there has been no judicial
pronouncement that has held ordinary administrative action to be within the definition
of “law”.

44
Article 32 puts the objective of enforcement of fundamental rights at the centre of SCI's jurisdiction for judicial
review.
45
Sukhdev Singh (n 32) 453, 454.
46
Article 13 (2) provides ‘The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be void …’. Article 13
expressly makes legislative actions of the State subject to the fundamental rights in Part III of the Constitution.
47
Gulf Goans Hotels Company Limited v Union of India AIR 2015 SC 2032.
 INDIAN LAW REVIEW 11

There is no reference to administrative action in Article 13(2) or 13(3). The emphasis

of Article 13(2) is on preventing the legislative actions, instead of the administrative
actions, of the state from infringing the fundamental rights. This can be inferred from
the following observation of Dr B R Ambedkar in the constituent assembly debates,48 as
well as, from various judgments of the SCI and the HCs.49

… if the Fundamental Rights are to be clear…. they must not only be binding upon the
Provincial Government, …. upon the Governments established by the Indian States, they
must also be binding upon District Local Boards, Municipalities …. and taluk boards, in
fact, every authority which has been created by law and which had got certain power to
make laws, to make rules or make bye-laws.

Although there are references to local bodies and municipalities, such reference is not
general but restricted to their powers to make laws. Further, there are cases where
courts have relied on certain distinct characteristics of law to distinguish law from
executive actions.50 In view thereof, it cannot be assumed that administrative actions
are naturally included within the scope of “law”. At least at the time when Sukhdev
Singh was decided, it seems unlikely that a clear understanding in that regard was
achieved.
There is no equivalent provision in the Constitution that expressly makes the
administrative actions of the State subject to the fundamental rights. Although it will
be absurd to suggest that the administrative actions of the State are not subject to the
fundamental rights, unlike for the judicial review of legislative actions, the Constitution
does not make the fundamental rights the sole or the main standards for the judicial
review of administrative actions. Accordingly, Justice Matthew’s interpretation of the
Constitutional scheme of judicial review seems partial, as it does not account for the
standards other than the fundamental rights, against which administrative actions may
be reviewed. And once it is recognized that administrative actions may be reviewed
independent of the fundamental rights, it becomes difficult to rationalize the strong
reliance put by Justice Mathew51 on the scope of the term “State” for the purposes of
judicial review of administrative actions.
(c) Unlike Article 14, not all fundamental rights specifically refer to the “State”. Some
fundamental rights are enforceable against non-state entities.52 Unless the objective of
judicial review of administrative action can be solely attributed to Article 14,53 it is

48
The observations were made during the discussion on Article 7 of the draft constitution (corresponding to Article 12
of the Constitution). See, Constituent Assembly of India Deb, vol VII, 610. Emphasis added.
49
Although ‘law’ includes orders or notifications issued by the executive in exercise of delegated legislative power, it
does not include orders or notifications issued by the executive in exercise of executive powers. See, State of Madhya
Pradesh v Ramcharan AIR 1977 MP 68; Dwarka Nath Tewari v State of Bihar AIR 1959 SC 249.
50
See Gulf Goans Hotels (n 47). Also see Punit Rai v Dinesh Choudhury AIR 2015 SC 2032.
51
(n 45).
52
For instance, Articles 15(2), 17 and 23.
53
As mentioned above, in West Bengal v Anwar Ali AIR 1952 SC 75, the SCI held that Article 14 applies to both legislative
and administrative actions of the State. Also, a number of the grounds of judicial review has been or can be
interpreted in reference to Article 14. Prima facie, Article 14 may seem to provide the Constitutional rationale for
control over administrative actions of the State. However, it must be noted that in granting writ jurisdictions to the
SCI or the HCs, Article 32 and Article 226 refer to ‘fundamental rights’ and not Article 14. And the scope of Article 226
is, in any case, not limited to fundamental rights.
12 S. SABHAPANDIT

difficult to rationalize why, in the context of rights-based review under Article 32 or

under Article 226, one must establish state action.54
In any case, for non-rights-based review under Article 226, the Constitutional
scheme as interpreted by Justice Matthew is not relevant. As is clear from the discussion
in Section IV, amenability to non-rights-based review is not dependent on whether the
concerned entity is state.

3. Nature of the corporation’s function

In determining if the corporations in question were agencies or instrumentalities of the
state, Justice Matthew relied on factors like capital contribution from the state, whether
part of the profit of the corporations went to the government, whether the government
could control the corporations’ policies, the public importance of corporations’ func-
tions, the extent to which the corporations functioned as monopolies with respect to the
functions they carried out, and the fact that, in the event of the corporations entering
liquidation, the benefit of accumulated income would go to the government.55 Most of
these factors are indicative of the nexus that the concerned entity had with the
government whether through the government’s sanction or involvement in the entity’s
actions or through shareholding in or financing of the entity. The emphasis on the
government’s involvement is consistent with Justice Mathew’s interpretation of the
Constitutional scheme which required state action. Justice Mathew’s approach is,
thus, an emphasis on the institutional aspect of amenability.
Justice Matthew did not deny the relevance of the nature of the functions of an entity
to the question of amenability.56 However, he did not express any opinion regarding the
public or governmental nature of the functions carried out by the corporations in
question. Notably, there was consensus between the majority opinion, the opinion of
Justice Matthew and the dissenting opinion that engagement in commercial activities is
not a factor that will exclude an entity from the purview of Article 12. This is because
under Article 298 of the Constitution,57 the government has the right to carry on trade
or business.
Although Justice Mathew’s opinion in Sukhdev Singh was not part of the majority
opinion in that judgment, it is his opinion that received support in the subsequent
judgments of Dayaram Shetty and Ajay Hasia, considered below. And along with the
expansive approach of Justice Mathew, his emphasis on the institutional aspect of
amenability permeated into the amenability criteria articulated by the SCI in those
cases. Through a series of judgments that followed the criteria laid down in Ajay Hasia,
judicial review of administrative action in India got firmly tied to the scope of “State”
under Article 12.
The judgment in Ramana Dayaram Shetty v International Airport Authority of India
and Ors58 involved the International Airport Authority of India (IAAI), a corporate
54
The emphasis on State action in Article 32 petitions has been criticized. See MP Singh, ‘Fundamental Rights, State
Action and Cricket in India’ (2005) 2 Asia Pacific Law Review 203.
55
Sukhdev Singh (n 32) 458.
56
ibid 454-5.
57
Constitution of India 1950, art 298 provides ‘Power to carry on trade, etc. – The executive power of the Union and of
each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of
property and the making of contracts for any purpose…’.
58
(1979) 3 SCC 489.
 INDIAN LAW REVIEW 13

body constituted by a statute. An action was brought against IAAI under Article 226 in
the Bombay High Court alleging that IAAI violated its own rules for selection of
contractors through bidding process. Upon rejection of the writ petition by the High
Court, the matter reached the SCI. The SCI considered inter alia whether IAAI was
“State” under Article 12 and, hence, bound to follow the rules it had itself laid down for
the selection of contractors. It is not clear from the judgment if in the original petition
before the Bombay High Court, violation of Article 14 was specifically alleged.59
Delivering the judgment, Justice Bhagwati asserted that the rule that – an executive
authority must be rigorously held to the standards by which it professes its actions to be
judged – is part of administrative law in India and has an existence independent of
Article 14.60 This rule, in his opinion, is a common law rule to check against exercise of
arbitrary power by the executive authority.61 Despite asserting that the rule exists
independent of the fundamental rights, Dayaram Shetty did not engage with the
implication of this independent existence on the requirement of state action for rights-
based judicial review under Article 32 or Article 226. Instead, in analysing the principle,
the SCI swiftly reverted to examining the linkage of the rule with Article 14. With
extensive reference to precedents the SCI asserted that the rule emanates from the
doctrine of equality embodied in Article 14.62
It is not clear why the SCI considered it essential to establish a linkage between a
common law rule and Article 14 in a petition under Article 226. However, in reference
to Article 14, the SCI adopted the arguments and factors indicated by Justice Matthew
in Sukhdev Singh, without qualification.63 In holding IAAI as an agency or instrumen-
tality of the government, the SCI relied on, amongst others, factors like government’s
power to appoint the chairman and other officials of IAAI, government’s control over
policies of IAAI, transfer of an erstwhile department of the government together with
properties and assets, debts, liabilities, contracts and pending litigations to IAAI. The
SCI in Dayaram Shetty firmly established the “instrumentality or agency of the govern-
ment” test along with the test’s preference for benchmarking state sanction and its
emphasis on institutional aspect of amenability instead of the functional aspect. In other
words, the “nature of entity” became the primary indicator of amenability to judicial
review.
In the 1980 case of Ajay Hasia v Khalid Mujib Sehravardi64 the SCI was dealing with
the question whether a society65 registered under the J&K Registration of Societies Act
1898 fell under the term “other authorities” in Article 12. An action was brought against

59
The reported SCI judgment does not contain details of the contentions raised before the HC. To the extent it could be
ascertained, the HC judgement has not been reported.
60
Dayaram Shetty (n 58) 503.
61
ibid 503-4. Justice Bhagwati referred to the declaration of this rule by Justice Frankfurter in Viteralli v Seaton 359 US
535, and by Prof Wade in Administrative Law (4th edn) to indicate that this rule of administrative law has evolved and
has been accepted in the US and the UK.
62
Dayaram Shetty (n 58) 511-7. The SCI referred to a number of cases to emphasize that the principle against
arbitrariness in state action flows from Article 14. Some of the cases were EP Royappa v State of Tamil Nadu (1974)
4 SCC 3; Maneka Gandhi v Union of India (1978) 1 SCC 248; Erusian Equipment and Chemicals Ltd v State of West Bengal
1975 AIR 266; Rashbihari Panda v State of Orissa (1969) 1 SCC 414.
63
Dayaram Shetty (n 58) 517.
64
(1981) 2 SCC 722.
65
This term is not defined in the Act. According to Black’s Law Dictionary, society refers to an association or company of
persons united by mutual consent, to deliberate, determine and act jointly for a common purpose. The Act sets out
the criteria for societies that can register under the Act.
14 S. SABHAPANDIT

the registered society under Article 32 alleging violation of Article 14 resulting from
certain discrepancies in the process of admission of students in an engineering college
established and administered by the society.
Delivering the judgment of the five judge bench of the SCI, Justice Bhagwati strongly
emphasized a need “to subject the government in all its myriad activities, whether
through natural persons or through corporate entities, to the basic obligation of the
fundamental rights”.66 The SCI not only adopt with approval the various factors that
Justice Matthew had relied upon in Sukhdev Singh,67 but also enumerated them as
relevant tests for determining if an entity is an agency or instrumentality of the
government.68 The enumeration of these tests conveys a degree of clarity in judicial
argumentation over this complex issue, and this may have contributed to the extensive
use of these tests in later judgments. The tests laid down in Ajay Hasia became the
“keystone” of the subsequent jurisprudential superstructure regarding the interpretation
of “other authorities” and the determination of the scope of the term “State”.69
The expansion of amenability criteria through an expansive interpretation of “State”
in Sukhdev Singh and the articulation of the relevant factors in Ajay Hasia facilitated a
wider reach of judicial review to ostensibly private entities. Notably, R v Panel on
Takeovers and Mergers Ex p Datafin,70 which is considered to be the pioneering case in
the UK where an ostensibly private entity was held to be amenable to judicial review,
was decided a few years later than Ajay Hasia. However, unlike Ajay Hasia and
subsequent decisions in India, the emphasis in Ex p Datafin was on the nature of the
concerned entity’s functions.71 Although the factors enumerated in Ajay Hasia included
the nature of function of an entity, as I have argued elsewhere, judgments subsequent to
Ajay Hasia do not indicate any priority being given to that factor.72 In fact, there are
cases where entities have been considered to be state, without reference to the nature of
their functions.73 As most of the factors enumerated in Ajay Hasia are indicative of
government nexus, the amenability criteria for rights-based review has an in-built
preference for the institutional aspect over the functional aspect.
The emphasis on the “nature of entity” has led to a number of issues. The scope of
this article only permits a brief reference some of these issues. For instance, it has been
recognized that due to the emphasis on government nexus, entities set up by the
government primarily for commercial purposes have been considered to be amenable

66
Ajay Hasia (n 64) 733.
67
ibid [8]. The SCI referred to the ratio of its judgment in Dayaram Shetty where Justice Mathew’s opinion was adopted.
Justice Bhagwati delivered the judgments in both Dayaram Shetty and Ajay Hasia.
68
ibid [9]. These tests are, whether, the entire share capital of the corporation is held by Government, the financial
assistance of the State which meet almost entire expenditure of the corporation, the corporation enjoys monopoly
status which is State conferred or State protected, there is deep and pervasive State control, the functions of the
corporation are of public importance and closely related to governmental functions, a department of Government is
transferred to a corporation.
69
Pradeep Kumar Biswas v Indian Institute of Chemical Biology and Others (2002) 5 SCC 111 [31] (Justice Ruma Pal).
70
1987 WL 492523.
71
ibid. Lord Justice Lloyd held that ‘If the body in question is exercising public law functions, or if the exercise of its
functions have public law consequences, then that may, …, be sufficient to bring the body within the reach of
judicial review.’
72
Santanu Sabhapandit, ‘Application of Public Law Principles to entities implementing PPPs in India’ (2015) (2) Public
Procurement Law Review 33, 42.
73
Virendra Kumar Srivastava v U P Rajya Karmachari Kalyan Nigam (2005) 1 SCC 149. Also, in Sukhdev Singh and Ajay
Hasia, the nature of the functions of the concerned entities did not play any significant role in the determination of
amenability.
 INDIAN LAW REVIEW 15

to judicial review, thereby making them vulnerable to excessive litigation.74 As stated

above, Article 12 does not recognize hybrid private entities. Judgments like Kumari
Shrilekha Vidyarthi v State of UP75 and ABL International Ltd v Export Credit
Guarantee Corporation of India Ltd76 indicate that once an entity has been declared
to fall within the definition of “State”, the requirements of Article 14 may be extended
to all actions of the entity, irrespective of the nature of such actions. Over-stretching the
definition of “State” has not only been cautioned against from within the judiciary77 but
also has been severely criticized outside of the judiciary for its potentially constricting
effect on activities that rely on commercial principles.78
In this section, I have demonstrated that the amenability criteria for right-based
judicial review of administrative action have been developed with reference to Article
12 with an emphasis on the “nature of entity”. Despite the points of criticism identified
in the analysis, given the overwhelming precedential value of the judgment, a rekindling
of the reasoning adopted by Justice Mathew in Sukhdev Singh seems unlikely in the near
future. However, as the adverse results of a skewed emphasis on “nature of entity”
emerge, the judiciary or the legislature will have to respond appropriately. In the next
section, I explain another aspect of the jurisprudence on Article 12 based determination
of amenability criteria for judicial review of administrative action.

IV. The impact of Article 12 on judicial review under Article 226

In this section, I explore the impact that Article 12 has on judicial review under Article
226, especially non-rights-based review of administrative action. But before engaging
with that analysis, a couple of initial pointers about the scope of judicial review under
Article 226 may be useful.
First, the purpose and scope of judicial review under Article 226 is not well
articulated and remains subject to differing judicial opinions.79 There are cases where
the SCI has opined that the amenability criteria to non-rights-based review under
Article 226 are that the concerned entity must be performing a public duty.80
Further, the impugned action of the entity must be in discharge of that public duty.81
Such cases seem to assimilate the purpose of non-rights-based review to the purpose of
common law review in the UK. Although not free from debate, the primary purpose of
common law judicial review in the UK is said to be ensuring that public power is
74
BSNL v Telephone Cables Ltd (2010) 5 SCC 213 [42] -[44] (Justice Raveendran).
75
(1991) 1 SCC 212, [19]-[21], [24], [34].
76
(2004) 3 SCC 553 [22]-[24].
77
Chander Mohan Khanna v The National Council of Educational Research & Training (1991) 4 SCC 578 [3] (Justice Shetty);
Pradeep Kumar Biswas v Indian Institute of Chemical Biology and Others (2002) 5 SCC 111 [75], [98] (Justice Lahoti).
78
See Arun Shourie, Courts and their Judgments – Premises, Prerequisites, Consequences (Rupa & Co 2001) 65-108. Also
see submissions of the then Bureau of Enterprises in 145th Law Commission of India Report, Article 12 of the
Constitution and Public Sector Undertakings (1992) <http://lawcommissionofindia.nic.in/101-169/Report145.pdf>
accessed 2 February 2018.
79
MP Jain and SN Jain, Principles of Administrative Law (8th edn, Lexis Nexis 2017), 2260.
80
Anadi Mukta Sadguru v VR Rudani (1989) 2 SCC 691. This judgment has been relied upon in a number of subsequent
judgments, including, Zee Telefilms Ltd and Anr v Union of India and Ors AIR 2005 SC 2677; Ramesh Ahluwalia v State
of Punjab (2012) 12 SCC 331; Joshi Technologies International Inc v Union of India (2015) 7 SCC 728; KK Saksena v
International Commission on Irrigation & Drainage (2015) 4 SCC 670.
81
Binny Ltd v V Sadasivan (2005) 6 SCC 657.
16 S. SABHAPANDIT

exercised properly and in the public interest.82 Such a purpose may justify the emphasis
on public nature of the duty or function in determining amenability to non-rights-
based review. In contrast, there are other cases where the SCI has opined that the
jurisdiction of the HCs under Article 226 is so wide that any person or authority may be
subject to review for violation of any individual rights and in this regard, there is no
need to distinguish between public law and private law or public function and private
function.83 Arguably, such an approach deprives the amenability criteria for Article 226
of any context.
An authoritative account of the purpose and scope of non-rights-based judicial
review under Article 226, and consequently, of the criteria for amenability to such
review, is difficult to come by. It will require a comprehensive survey of numerous cases
from different HCs and the SCI even to draw an inference of the dominant judicial
opinion on that issue. The scope of this article does not permit that exercise. For the
purposes of the present analysis, I proceed with the assumption that the performance of
a public duty or public function is the amenability criteria for non-rights-based judicial
review under Article 226. Under this assumption, the emphasis of the criteria on the
functional aspect is clear. “Nature of function” is the determinative factor for amen-
ability to non-rights-based judicial review. It is pertinent to mention here that even if
one alludes to the argument that there is no need for distinguishing between public and
private function for amenability to non-rights-based judicial review, that does not make
the amenability criteria for rights-based review relevant for non-rights-based review.
This point is clarified further below.
Second, the judiciary acknowledges the difficulty in determining what public duty
is.84 The SCI in LIC v Escorts Ltd85 stated that it is impossible to draw a precise line
between the domains of public law and private law and it refrained from attempting to
do so. It opined that the question must be decided in each case with reference to the
particular action, the activity in which the concerned entity is engaged when perform-
ing the action, the public law or private law character of the action and a host of other
relevant circumstances.86 The position of a particular factor as an indicator of public-
ness may itself be ambiguous. For example, there are differing opinions on whether any
general statutory duty of a private entity amounts to a public duty so as to render the
entity subject to review.87 Thus, it is to be expected that whether a particular activity
will be considered by the courts as a public duty or public function, is likely to be
fraught with some degree of ambiguity. However, this difficulty is not unique to India.

82
Jason Varuhas, ‘Against Unification’ in Hanna Wilberg and Mark Elliott (eds), The Scope and Intensity of Substantive
Review: Traversing Taggart’s Rainbow (Hart Publishing 2015) 101.
83
UP State Cooperative Land Development Bank Ltd v Chandra Bhan Dubey (1999) 1 SCC 741 [27]. Also see Ramesh
Ahluwalia v State of Punjab (2012) 12 SCC 331; Brahma Chellaney v Union of India (2002) SCC OnLine Del 61.
84
G Bassi Reddy v International Crops Research Institute (2003) 4 SCC 225 [28]; Life Insurance Corporation of India v Escorts
Ltd (1986) 1 SCC 264.
85
(1986) 1 SCC 264 [102].
86
Although later in Binny Ltd v V Sadasivan (2005) 6 SCC 657 [11], the SCI made an attempt to define public functions
when it held that bodies exercise public functions when they intervene or participate in social or economic affairs in
the public interest.
87
See for example, the Bombay HC in Roche/Anglo French Emloyees’ Union v Conciliation officer (1986) SCC Online Bom
13 held that obligations of a private company under the Industrial Disputes Act, 1947 (ID Act) do not constitute
public duty. In contrast, in T Gattaiah v Commissioner of Labour, Hyderabad (1981) SCC Online AP 25 the Hyderabad
HC held that a private company to be subject to judicial review for its action of retrenching labourers, as it was under
a public duty not to do so under the provisions of the ID Act.
 INDIAN LAW REVIEW 17

The determination of a “public element”, which in turn determines the amenability of

an administrative action to common law judicial review in the UK, has been debated for
a long time.88 Moreover, such difficulty calls for further engagement with the issue than
avoidance.
With this background, the following analysis will underline the distinct nature of the
amenability criteria for non-rights-based review and demonstrate the influence of the
Article 12 jurisprudence thereon.
In Anadi Mukta Sadguru v VR Rudani89 the SCI held that:
The words ‘any person or authority’ used in Article 226 are … not to be confined only to
statutory authorities and instrumentalities of the State. They may cover any other person or
body performing public duty. The form of the body concerned is not very much relevant.
What is relevant is the nature of the duty imposed on the body.

The scope of “any person or authority” in Article 226 is broader than the scope of
“other authorities” in Article 12.90 Since fundamental rights are not relevant to non-
rights-based review, there is no rationale for defining the amenability criteria for non-
rights-based review in reference to state action. As is clear from the above observations
of the SCI, the nature of the duty is the sole criterion for amenability to non-rights-
based review. Yet, it may be noted that the use of the word “confined” in the above
quoted paragraph gives an impression that the scope of “any person or authority” is
broader but inclusive of the scope of Article 12. Despite emphasising the nature of
function as the determinant of amenability, these observations do not detach Article 12
from the question of amenability to non-rights-based review. In fact, as the following
paragraphs will demonstrate, Article 12 continues to play a central role in determining
amenability to non-rights-based review.

A. Article 12 as a basis for automatic amenability

In Federal Bank Ltd v Sagar Thomas and Others,91 the SCI opined that if an entity falls
within the definition of “State”, such entity would undoubtedly be amenable to judicial
review under Article 226. In this regard, the SCI made no distinction between rights-
based and non-rights-based review under Article 226. It is a common assumption that if
an entity falls within the scope of Article 12, it will certainly fall within the scope of
Article 226 and will be amenable to both rights-based and non-rights-based review.92
Such assumption fails to recognize the distinct nature of the two types of review.
Owing to the fact that Article 12 does not recognize hybrid private entities, once an
entity is considered to be within the scope of Article 12, it may be amenable to rights-
88
See Colin Campbell, ‘The Nature of Power as Public in English Judicial Review’ (2009) (March) Cambridge Law Journal
90; David Pannick, ‘Who is subject to Judicial Review and in respect of What?’ (1992) Public Law 1.
89
(1989) 2 SCC 691. The judgment has been relied upon in a number of later judgments, including, Zee Telefilms Ltd and
Anr v Union of India and Ors AIR 2005 SC 2677; Ramesh Ahluwalia v State of Punjab (2012) 12 SCC 331; Joshi
Technologies International Inc v Union of India (2015)7 SCC 728; KK Saksena v International Commission on Irrigation &
Drainage (2015) 4 SCC 670.
90
Praga Tools Corporation v CV Imanual AIR 1969 SC 1306.
91
(2003) 10 SCC 733 [4].
92
See MP Jain and SN Jain, Principles of Administrative Law (8th edn, Lexis Nexis 2017) 2262. Cases referred to in support
of this view are UP Warehousing Corpn v Vijay Narayan Vajpayee AIR 1980 SC 840; Man Mohan Singh v Commissioner
AIR 1985 SC 364.
18 S. SABHAPANDIT

based review for all its activities irrespective of their nature. However, that does not
imply that the entity will also be amenable to non-rights-based review. As indicated
above, there is limited emphasis on the functional aspect of amenability in rights-based
review and the “nature of function” is not the determinative factor in considering an
entity to be within the scope of Article 12. Hence, it is plausible that an entity is
considered to be within the scope of Article 12 without reference to the nature of its
functions. In such a case, an assumption of automatic amenability to non-rights-based
review ignores the emphasis on “nature of function” as the determinant of amenability
that characterizes non-rights-based review.

B. A continued emphasis on Article 12

The determination of an entity’s status under Article 12 in an application under Article
226 may become essential for various reasons. As discussed in Section III, on one hand
constitutionalization makes it easier for petitioners to invoke rights-based review
jurisdiction of the SCI or the HCs. On the other, the application of the Article 12
based amenability criteria for rights-based review is triggered by a mere allegation of
violation of fundamental rights. Whereas the general impact of this may be a diversion
of cases that could be subject to non-rights-based review into the sphere of rights-based
review,93 in the context of amenability criteria, the impact is a skewed focus on Article
12. The impact of Article 12 on non-rights-based review in such cases may, however,
seem indirect in so far as it is caused by a substitution of non-right-based review by
rights-based review. Article 12 may impact non-rights-based review in more direct
ways.
It has been noted that the judgments of the HCs in many cases indicate a restrictive
approach towards the range of bodies that are amenable to non-rights-based review
under Article 226.94 Under such approach, the HCs have sometimes held entities not to
be subject to non-rights-based review under Article 226 merely on the basis that the
concerned entity did not fall within the definition of “State” under Article 12.95 Such
opinions are clearly contrary to the opinion of the SCI in Anadi Mukta where the scope
of the words “any person or authority” used in Article 226 was held not to be confined
to the scope of Article 12.96
Owing to the assumed relevance of Article 12 for amenability to non-rights-based
review discussed in Section IV.A above, an argument that the concerned entity is
“State” and hence subject to writ jurisdiction, or that the respondent entity is not a
“State” and hence not subject to writ jurisdiction, makes the consideration of Article 12
seem essential in an application for non-rights-based review. In such cases, the adop-
tion of the amenability criteria for rights-based review is unfounded and diverts
93
It has been noted that in many cases the Indian judiciary has relied on constitutional guarantees to provide remedies,
whereas the same remedies could have been provided by resorting to administrative law. This phenomenon has been
criticized for its overemphasis on fundamental rights and a failure to recognize and address administrative failings.
See Farrah Ahmed and Tarunabh Khaitan, ‘Constitutional Avoidance in Social Rights Adjudication’ (2015) 35(3) Oxford
Journal of Legal Studies 604.
94
See MP Jain and SN Jain, Principles of Administrative Law (8th edn, Lexis Nexis 2017) 2263.
95
Cases like RD Singh v Bihar State Small Industries Corporation AIR 1974 Pat 212; Ram Prashad v Indian Institute of
Bankers AIR 1992 P&H 2 are cited as examples of such an approach. MP Jain and SN Jain, Principles of Administrative
Law (8th edn, Lexis Nexis 2017) 2263.
96
Sadguru (n 89) [20].
 INDIAN LAW REVIEW 19

litigation time and focus from a proper engagement with the amenability criteria for
non-rights-based review thereby impeding the development of relevant principles and
parameters for the latter.
There are numerous cases under Article 226 involving the question of amenability,
where Article 12 has taken the centre stage. For instance, cases like Mysore Paper Mills
Limited v Mysore Paper Mills Officers Association,97 Virendra Kumar Srivastava v UP
Rajya Karmachari Kalyan Nigam,98 SS Rana v Registrar, Co-op Societies99 and State of
UP and Anr v Radhey Shyam Rai100 had come to the SCI in appeal from writ petitions
filed in HCs under Article 226. In all these cases, the primary issue for determination
was whether the concerned entity fell within the scope of the term “State” under Article
12. Whereas in SS Rana,101 it was alleged that the respondent was subject to review as it
fell within the scope of Article 12, in Mysore Paper Mills Limited102 and Virendra
Kumar Srivastava103 it was the defence argument that the respondent was not subject to
review as it did not fall within the scope of Article 12. The context in which the SCI in
these cases considered Article 12 to be relevant for determining amenability to Article
226 is not clear. None of the cases has any reference to alleged violation of fundamental
rights. At the same time, none of these judgments consider the public nature of the
function of the concerned entities as the determinative factor for their amenability to
Article 226.
The impact of the assumed relevance of Article 12 to non-rights-based review can
be observed from a more recent judgment in Board of Control for Cricket in India v
Cricket Association of Bihar.104 The case involved, amongst others, the issue of
whether the Board of Control for Cricket in India (BCCI) is subject to judicial
review under Article 226. No allegations of violation of any fundamental rights were
made in this case.105 Yet, the issue of amenability before the court was framed in the
following language.

…Whether the respondent Board of Control for Cricket in India is ‘State’ within the meaning
of Article 12 and if it is not, whether it is amenable to the writ jurisdiction of the High Court
under Article 226 of the Constitution of India?106

Whereas the framing of the issues for determination may be largely dependent on the
framing of the arguments by the parties to the case, it is significant that considerable
space of the judgment was spent in discussing the factors that indicate if an entity falls
within the scope of Article 12.107 This was despite the fact that there was a clear

97
(2002) 2 SCC 167.
98
(2005) 1 SCC 149.
99
(2006) 11 SCC 634.
100
2009(3) SCALE 754.
101
SS Rana (n 99) [3].
102
Mysore Paper Mills (n 97) [2]. The appellant in this case (who was the respondent in the application brought in the
HC) had raised this argument.
103
Virendra Kumar Srivastava (n 98) [2].
104
(2015) 3 SCC 251.
105
Of the various issues identified for determination, some involved questions of facts and determination of whether
certain actions were permitted under the relevant rules and regulations. The legality of a particular provision of the
BCCI Regulations was also in issue. However, none of the grounds for questioning the legality of the provision
referred to violation of fundamental rights. ibid [73].
106
ibid [20.1.(i)].
107
ibid [22]-[31].
20 S. SABHAPANDIT

precedent where BCCI was held not to be within the scope of Article 12.108 In contrast,
no reference was made to cases like Anadi Mukta or Binny Ltd where principles
pertaining to the scope of Article 226 were considered without direct reference to
Article 12.109
It must be noted that the SCI in this case recognized that an entity discharging a
public function, even though not falling within the scope of Article 12, may be subject
to judicial review under Article 226.110 However, the judgment does not articulate the
irrelevance of Article 12 to non-rights-based review and to that extent, it represents a
missed opportunity to recognize the significance of non-rights-based review as a
distinct type of review and to establish the “nature of function” as the amenability
criteria for non-rights-based review in contradistinction to Article 12.

V. Conclusion
The SCI in LIC vs. Escorts Ltd.111 had stated that administrative law in India has forged
ahead of the law in England, owing to the guidance of the Constitution and the absence
of technical rules which, in the court’s opinion, had hampered the development of the
law in England. A clear emphasis on the protection of fundamental rights in Article 32
and part of Article 226, along with judgments like Sukhdev Singh and Ajay Hasia
indicate decisive rationale for the expansion of the scope of judicial review and clear
criteria for amenability to rights-based judicial review. However, the protection of
fundamental rights neither rationalizes an unbounded expansion of the scope of judicial
review nor fully explains the Constitutional scheme of judicial review in India, espe-
cially judicial review of administrative actions. It is here, where non-rights-based review
under Article 226 provides a scope for envisioning judicial control of administrative
action as a goal in itself, independent of the ambitious overtones and complexities of
fundamental rights.
However, the scope of non-rights-based review has so far remained less well-defined.
The judiciary’s differing opinions on the scope of non-rights-review neither indicate
total abandonment of the public private distinction in amenability to common law
judicial review in England nor authoritatively project any alternative principled
approach. Engagement with the purpose of non-rights-based review and its amenability
criteria, identification of the indicators of such criteria and relevant principles for
assessing those indicators are often eclipsed by the jurisprudence of rights-based
judicial review, especially Article 12. This article has identified some of the causes of
this phenomenon and traced them to judicial reasoning that overlook the significance
of non-rights-review under Article 226.
It is hoped that better clarity on the scope of non-rights-based review will be
achieved through further refinement and articulation of the relevant principles by the
judiciary. That process may be fraught with complexities such as the inherent difficul-
ties of drawing a precise distinction between public law and private law. However, a
first step towards the efficiency of the process will be to recognize that there is limited
108
Zee Telefilms Ltd and Anr v Union of India and Ors AIR 2005 SC 2677.
109
Sadguru (n 89).
110
BCCI (n 104) [33]-[35].
111
(1986) 1 SCC 264 [101].
 INDIAN LAW REVIEW 21

relevance of Article 12 and the jurisprudence of rights-based review for non-rights-

based review under Article 226. A “nature of function” based amenability criteria for
non-rights-based review may not only enable a wider reach of judicial review but also
provide a firm basis for judicial control of administrative action.

Acknowledgment:
I would like to thank Hugh Corder, Cora Hoexter, Jason Varuhas, Swati Jhaveri and Farrah
Ahmed along with the participants of the workshop on Comparative Perspectives on
Administrative Law in India, 6-7 April, 2018, Delhi, for their helpful comments on an earlier
version of this article. I am grateful to the anonymous reviewer and the editors at the Indian Law
Review for their insightful comments.

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