The Public Function Test, Mr. Harish Salve

IndiaCorpLaw, dated 03.04.2015

… “A private body discharging a public duty or a positive obligation of public nature” would be amenable to the High Court’s Writ Jurisdiction under Article 226 [See for example, Anandi Mukta, (1989) 2 SCC 691]. A contentious question arises at this point – how to determine whether a particular activity is or is akin to a public duty/State function/public function? While a one-size-fits-all definition is impossible, the SC has over the years relied on a workable formula that “A function or activity is considered ‘public’ when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so” [See generally, Jatya Pal, (2013) 6 SCC 452].

Dr. Janet Jeyapaul v. SRM University, [Civil Appeal No. 14553 of 2015], decided on 15.12.2015

We record our deep sense of appreciation for the valuable assistance rendered by Mr. Harish Salve… According to him, while deciding the question as to whether the Writ lies under Article 226 of the Constitution of India against any person, juristic body, organization, authority etc., the test is to examine in the first instance the object and purpose for which such body/authority/organization is formed so also the activity which it undertakes to fulfill the said object/purpose. Mr. Harish Salve submitted that… there has been a consistent view… that the approach of the Court while deciding such issue is always to test as to whether the concerned body is formed for discharging any “public function” or “public duty” and if so, whether it is actually engaged in any public function or/and performing any such duty. If the aforesaid twin test is found present in any case then such person/body/organization/authority, as the case may be, would be subjected to Writ Jurisdiction of the High Court Under Article 226 of the Constitution… We find force in the submissions urged by Mr. Harish Salve.”

A Mutual Appreciation Society. Did the SC really need the time and expertise of Mr. Harish Salve for this one?

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