A body is said to perform a "public function" when it aims to achieve certain collective profit 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. Bodies are thus said to perform public functions when they participate in social or economic activities in the public interest.
Public function can be thus defined as:
"A body is performing a ‘public function’ 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. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides ‘public goods’ or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing………"
An inspiration can be drawn from the decisions of this and also various other Courts, and can be safely inferred that when governmental functions of paramount importance were placed or allowed to be performed by a private body; they must be held to have undertaken public duty or public functions . It is observed that not all the activities of the private bodies are matter of private law e.g. the activities of private bodies which are in public interest be governed by the principles of public law when its decisions are subject to duties conferred by statutes or in the light of the functions performed by it, it holds a dominant position in the market. For example, say when a private company is selected to run a prison even if it is moved by commercial profit should be considered, at least in context to some of its functions, as a matter of public law because of the character of role it is performing.
Now, after having discussed the meaning of "public functions" a very important question arises before us i.e. whether Courts have the power to issue writs under Article 32 and 226 of the Constitution of India to any institution which is not a State as per Article 12 of the Constitution of India, but, is merely a private body performing public functions?
AMENABILITY OF ORGANISATIONS TO WRIT JURISDICTION
The Constitution of India gives the Supreme Court and the High Courts a power to issue writs under the Article 32 and 226 respectively. Under Article 32 and 226 the Supreme Court and the High Court can issue writs in the nature of Habeas Corpus, Certiorari, Mandamus, Prohibition, Quo Warranto or any other for the enforcement of rights conferred in Part III of the Constitution of India, i.e. fundamental rights.
In this chapter, the author is concerned with the writ of mandamus; and shall be dealing with the same in detail. The writ of mandamus is a command issued by a Court to a public authority commanding it to perform a certain public duty or public duties belonging to its office. The purpose of mandamus is to thwart disorder from a malfunction of justice and is requisite to be granted in all cases where there is no specific remedy provided for and where justice has not been granted despite it being demanded. This writ of mandamus can be issued only when there exists a legal duty on the authority in question and the petitioner has a legal right to induce the performance of such a duty; and the duty of the authority in question is crucial and not merely discretionary. The nature of the duty to be imposed determines the scope of this writ, rather than the identity of the authority against whom it is sought after. However, the Courts have a discretionary power while granting this writ; the Court might withhold it if it is not in the interest of justice. The writ has been defined by Halsbury in the following terms:
"The writ of mandamus is a……. writ of most extensive remedial nature and is, in form, a command issuing from the High Court of Justice directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effectual."
A distinction has been provided between the public duties enforceable by mandamus which is statutory in nature and duties that merely arise from a contract. Duties that are contractual in nature are enforceable as matters of private law by ordinary remedies like damages, injunctions, specific performance and declaration.
It is of great importance to discuss that whether the Supreme Court and the High Courts can issue a writ against only a public authority or any other authority performing a function which is in public interest i.e. public function.
In the Indian Constitution Article 226 confers the power on a High Court to issue the writ of mandamus not only against a public authority but also a private authority. However, the function so performed by such a private authority should be public function and the decision brought in question should be in discharge of a public function.
In G.M. Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad , the appellant was a cooperative society, which was engaged in the manufacture of sugar. The respondents who were the workers of the appellant had filed numerous writ petitions alleging that they had to be treated as permanent workmen. The appellant challenged the writ petition; the Court after applying the same principles as laid down in VST Industries case , it held that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution of India as the mill was engaged in the manufacture and sale of sugar which would not involve any public function.
The Courts have been hesitant to exercise the powers of judicial review in matters of employment of workers by private bodies on basis of the contract between the two and whenever the power has been exercised it is solely done based on public law element involved therein.
The same principle has been enunciated in various cases; one of them being Praga Tools Corpn. v. C.A. Imanual . In this case the appellant was a company incorporated in the Indian Companies Act and its certain shares were held by the Union Government and the Government of Andhra Pradesh i.e. 56 percent and 32 percent respectively. The respondent workmen challenged the validity of an agreement entered into between them by filing a writ petition under Article 226 in the High Court of Andhra Pradesh seeking a writ of mandamus or an order or a direction restraining the appellant from implementing the said agreement. The appellant challenged the maintainability of the writ petition. It was held that the petition was not maintainable against the company.
In Federal Bank Ltd. v. Sagar Thomas the respondent was working as a Branch Manager of the appellant Bank. He was terminated and a disciplinary enquiry was held against him wherein he was found guilty and dismissed from work. The respondent challenged his dismissal by filing a writ petition. The Court held that the jurisdiction of the High Court under Article 226 could not be invoked in this case as the functions of a scheduled bank such as banking, manufacturing units or related to any other kind of business which generates resources, employment opportunities, creation and ensuing in circulation of money do not have an impact on the economy of the country in general, cannot be classified as a duty or function in public nature.
After applying these principles, suffice it to say that a writ of mandamus can be issued against a private body which is not a "State" within the meaning of Article 12 of the Indian Constitution and that such a body is amenable to Article 226 of the Indian Constitution, where there exists a public law element.