APOORVA Y K vs SOUTH ASIAN UNIVERSITY

2024-01-18 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11 January 2024
Pronounced on: 18 January 2024

+ W.P.(C) 3667/2023 & CM APP No. 1019/2024
APOORVA Y K ….. Petitioner
Through: Mr. Abhik Chimni, Mr. Saharsh Saxena, Mr. Anant Khajuria & Ms. Riya Pahuja, Mr. Mukul Kulhari, Advocates.
versus

SOUTH ASIAN UNIVERSITY ….. Respondent
Through: Mr. Sandeep Kumar Mahapatra, Mr. Mvinmayee Sahu Mahapatra, Mr. Tribhuvan, Mr. Sugam Kr. Jha, Mr. Raghav Tandon, Mr. Harsh Raj, Advocates.

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T
% 18.01.2024

1. The petitioner registered for the LLM course with the respondent South Asian University (SAU, also referred to as the University) on 25 October 2021. The course was due to be completed in May 2023.

2. On 26 November 2022, the Proctor of the University issued a Show Cause Notice to the petitioner, alleging that the petitioner had, on 23 November 2022,
1. Entered the office of Associate Dean of Students Dr. Navnit Jha without his permission and persistently demanded in a threatening language complete revocation of the disciplinary action against certain students,
2. Entered a Mathematics class of Director (A&E) Prof. Pankaj Jain at about 10:30 AM without his permission and wanted to address the Mathematics students. When he requested you to meet him after the class, you shouted at him in these words, Can I know your name? When he informed you that it was the last week of the semester studies, you used such abusive words as forget about your ****ing1 studies.
3. Forcefully and without permission of the Acting Registrar entered his office when he was meeting officials of the University.
4. Attempted to force the Acting Registrar at the said other officials to do what they were not bound to do (such as to completely revoke disciplinary action against certain students and to offer their resignation) or omit from doing (such as discussion before considering necessary action as per the Rules, Regulations and Bye Laws) under the said SAU Rules, Regulations and Bye Laws.
4. Made office of the said Acting Registrar totally dysfunctional/paralysed by forcefully and without his permission entering it and by attempting as aforesaid at paras. 3 and 4, respectively.
5. Made the said Acting Registrar captive for several hours to again force him to do what he was not bound to do, as aforesaid, or omit from doing, as aforesaid, thereby did not allow him to leave his office for home until the availability of assistance from the Host country2.

The petitioner was directed to explain, in writing, within a week of receipt of the said Show Cause Notice as to why disciplinary action be not taken against her as per the SAARC Intergovernmental Agreement, Rules, Regulations and Bye-Laws, including the Headquarters Agreement between the University and India.

3. The petitioner submitted her response to the above Show Cause Notice on 9 December 2022. All allegations in the Show Cause Notice were categorically denied. The reply asserted that, on 22 November 2022, Ammar Ahmed (Ammar), a first-year M.A. Sociology student in the University had had seizures and become unconscious, and had to be hospitalised. During hospitalisation, Ammar suffered a cardiac arrest. He was resuscitated and had to be intubated, in which condition he remained in the ICU at the Primus Hospital in New Delhi. The petitioner and other students of the University were distressed at the fact that no official of the University visited Ammar at the Hospital. They were also concerned about the cost of the treatment that Ammar would have to be provided. In the interregnum, Ammar was rusticated. With respect to the individual allegations against her, the petitioner denied that she, either herself or any other students, had ever sought to intimidate Dr. Jha or Prof. Pankaj Jain, and merely requested them to intervene in the matter of Ammar, as he was in the ICU. The allegation that she had, herself or with other students, held the Acting Registrar captive or compelled any of the school authorities to do any act which they ought not to have done, was also categorically denied. It was submitted that they had never paralysed the office of the Acting Registrar or made it dysfunctional. Though the petitioner acknowledged having visited the office of the Acting Registrar, she submitted that it was merely to discuss the concerns of the students, and not to indulge in any coercive tactics. As the entire incident had arisen out of the concerns of the students especially vis-à-vis Ammar, the petitioner prayed that the proceedings be not continued. In the event that the respondent desired, nonetheless, to continue the proceedings, she prayed that the principles of natural justice and due process be followed.

4. On 6 January 2023, the petitioner received an email from the Deputy Registrar (Administration) in the office of the respondent, informing her that a High Powered Committee (HPC, hereinafter) had been constituted and requiring her to be present before the HPC on 13 January 2023 for consideration of the petitioners representation/response to the Show Cause Notice issued to her.

5. The petitioner responded on 10 January 2023, requesting to be informed about the constitution of the HPC, the powers vested in it and the procedural rules that applied to it as, in the event of the reply filed by the petitioner having been found to be unsatisfactory, the Bye Laws applicable to the respondent required the constitution of a proctorial committee to enquire into it, in accordance with the provisions of the Bye Laws.

6. Though the petitioner never received a response to her representation, she appeared before the HPC on 13 January 2023, as scheduled.

7. On 17 February 2023, the following Office Order was issued by the Proctor:

No. SAU/Proctor/2023/1382 17 February 2023

OFFICE ORDER

WHEREAS you have submitted your representation on 09 December 2022 and against the show cause notice issued to you on 26 November 2022.

WHEREAS your said representation was considered by an impartial High-Powered Committee constituted by the competent authority with the Proctor as its Chairperson and Deans of the Faculties of Economics, Life Sciences and Biotechnology, Mathematics and Computer Science and Social Sciences as its Members and the Deputy Registrar (Administration) as its Member-Secretary.

WHEREAS the said Committee heard you and afforded you a reasonable opportunity to present your case and defend you on 13 January 2023.

WHEREAS the said Committee has recommended your expulsion from, and out of bounds of, the South Asian University.

WHEREAS the said Committee has further recommended that you may be debarred from joining any programme of the University in future.

WHEREAS the Intergovernmental Agreement for the Establishment of South Asian University, 2007, Rules, Regulations and Bye Laws remain in force, including Rules 10.3.1 and 29.3 and Regulation 5.1.7.

WHEREAS the Headquarters Agreement between the Government of the Republic of India and the South Asian University, 2008, remains in force, including its Article III.3 and VIII.

WHEREAS the competent authority has accepted the said recommendations.

NOW, THEREFORE, you are said representation stands disposed of in terms as aforesaid.

You are required to vacate the hostel within seven days of the receipt of this Order.

This issues with approval of the competent authority.

Sd/-
Proctor

8. The petitioner submitted a representation dated 26 February 2023 to the Proctor, requesting that the decision dated 17 February 2023 be reconsidered. She reiterated her denial of the allegations against her and undertook to abide by all rules, regulations and Bye Laws applicable to the University.

9. By Office Order dated 2 March 2023, the Proctor, purportedly with approval of the competent authority rejected the petitioners representation dated 26 February 2023.

10. The petitioner has, therefore, approached this Court by means of the present writ petition, under Article 226 of the Constitution of India, seeking issuance of writs of certiorari setting aside the Office Orders dated 17 February 2023 and 2 March 2023.

11. The writ petition points out that the SAU finds place at S. No. 12 of the list of Central Universities appended to the University Grants Commission Act (UGC Act), 1956 and is, therefore, a University as defined in Section 2(f)3 of the UGC Act. Further, it is submitted that the SAU was established under the South Asian University (SAU) Act, 2008, Section 294 of which insulates the SAU from legal proceedings only in respect of acts done in good faith or intended to be done in pursuance of any of the provisions of the SAU Act. It is not open, therefore, to the SAU to contend that it is immune from Article 226 of the Constitution of India.

12. Inasmuch as the expulsion of the petitioner from the University has been effected in violation of the Proctorial Committee Rules and Regulations (PCRR), which required fair opportunity, including recording of evidence, to be undertaken by the Proctorial Committee before arriving at a decision on the disciplinary action to be taken against the student, the writ petition avers that the University cannot be said to have acted in good faith. It is pointed out, in this regard, that no opportunity of fair hearing was granted to the petitioner by the University before the Office Order dated 17 February 2023 was issued and that the order was issued in breach of the procedure prescribed in the PCRR.

13. The writ petition also makes reference to the United Nations (Privileges and Immunities) Act, 1947 (the UN Act). Section 35 of the UN Act empowers the Central Government to, by notification, extend the protection provided in the Schedule to the UN Act to international organisations. However, this protection, submits the writ petition, is available only in respect of acts done in accordance with the procedure established by law. Else, the citizen can always invoke Article 226 of the Constitution of India. Inasmuch as the impugned expulsion of the petitioner from the University was effected without following the procedure prescribed in that regard, it is contended that the University cannot claim immunity under Section 3 of the UN Act.

14. The PCRR, contends the writ petition, was violated as, firstly, the petitioner was never provided copies of any complaints against her, secondly, the petitioner was never confronted with any evidence against her, and, thirdly, the petitioner was denied the opportunity of cross-examining any witness on whom the University relied.

15. The petitioner contends that approaching the University authorities with grievances cannot be regarded as an act of indiscipline or a violation of the Rules, Regulations or Bye Laws governing the University. The impugned orders, it is submitted, had been passed without considering the facts of the case and without proper application of mind.

16. The University has filed a counter-affidavit. The HPC, it is contended, was the Proctorial committee constituted in accordance with Rules 6.2.1, 7, 10.3.1 and 29.3 and Regulation 5.1.7 of the Rules and Regulations applicable to the University. Though the University has placed its Rules and Regulations on record, I am unable to find Rule 6.2.1. Rule 7, with its various clauses, deal with the Dean, his appointment and his powers. Rule 10.3.1 deals with the manner in which the Proctor is to be appointed. Rule 29.3 empowers the President of the University to expel any student for indiscipline. Regulation 5.1.7 empowers the President to exercise all powers, not expressly mentioned in the Regulations, as are necessary or incidental for the smooth functioning of the University. The counter-affidavit asserts that the petitioner had been given an adequate opportunity to represent herself, including an opportunity of personal hearing, and was expelled only on her representation being found to be unsatisfactory. It is further asserted that the principles of natural justice were scrupulously followed.

17. The counter-affidavit also questions the maintainability of the writ petition. It is asserted that the SAU is an intergovernmental University established consequent to an agreement executed among Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka, as members of the South Asian Association for Regional Cooperation (SAARC) in 2007. This 2007 Agreement, it is asserted, is the highest law of the University, and the intergovernmental Rules, Regulations and Bye Laws are, in descending reference, subordinate to it. Reliance has also been placed on the Preamble to the SAU Rules which, while recognising that the member States of the SAARC may be required to establish the SAU by national legislations, further provides that, if such national legislations come in conflict with the Agreement and other agreed upon Inter-Governmental legal instruments of the University, the provisions of the latter shall prevail.

18. It is further asserted that the SAU is not state within the meaning of Article 126 of the Constitution of India. Ergo, it is not amenable to the writ jurisdiction of this Court. Further, Section 67 of the South Asian University (SAU) Act vests management of the affairs of the SAU in a Governing Board consisting of two members from each of the member States of SAARC. As such, the affairs of the SAU are not controlled only by the Government of India.

19. The reliance, by the petitioner, on the UGC Act, is alleged to be misplaced. It is contended, in the counter-affidavit, that Article 7 of the Agreement dated 4 April 2007 among the member countries of the SAARC required the degrees granted by the University to be recognised by the UGC, which is why the University figures in the Schedule to the UGC Act. The University does not receive any grant from the UGC, unlike other Central Universities. Mere grant of recognition to the University as a Central University does not divest it of its character as a non-state, non-profit, self-governing international educational institution. Proceeding against the respondent in the teeth of the provisions of the agreement, it is submitted, would violate Article 51(c)8 and 2539 of the Constitution of India.

20. The University invokes Section 1410 of the SAU Act, which confers, on the University as well as its President and members of the academic staff, privileges and immunities notified by the Central Government under Section 3 of the UN Act. In conformity with Section 14 of the SAU Act, it is pointed out that the Ministry of External Affairs (MEA), vide Gazette Notification dated 15 January 2009, issued under Section 3 of the UN Act, accorded, to the officials of the University, as well as to the University itself, immunities in the following terms:
And whereas, in pursuance of the decision of the Inter-governmental Steering Committee of the SAARC, it is expedient to accord the Project office and officials thereof, and the South Asian University, its President, Registrar and Faculty members the privileges and immunities in India similar to those contained in Articles II, III, IV, V, VI and VII of the Schedule to the United Nations (Privileges and Immunities) Act, 1947. Now therefore, the Central Government in exercise of the powers conferred by Section 3 of the said Act, hereby declare that the provisions of Articles II, III. IV, V, VI and VII of the Schedule to the said Act shall apply mutatis mutandis to the Project Office and officious thereof, and the South Asian University, its President, Registrar and Faculty Members for giving effect to the said Headquarters Agreement.

The extension of this immunity to the University as well as to its officials, it is contended, precludes the petitioner from instituting the present writ petition. The immunities extended to the University have, it is pointed out, been maintained by the latest Gazette Notification dated 13 May 2021.

21. The invocation of Section 29 of the SAU Act, by the petitioner, is alleged to be misconceived. The power to regulate and enforce discipline among students and to take disciplinary measures in that regard, as well as the power to do all acts necessary, incidental or conducive to the promotion of the objects of the University, it is pointed out, stand expressly conferred by clauses (xix) and (xxviii) of Section 811 of the SAU Act. The University also places reliance on Rules 29.1 to 29.412 of the SAU Rules. In view thereof, it is contended that it is not open to the petitioner to urge that, in deciding to expel her from the University, the University did not act in good faith.

22. It is further contended that the University has, in place, a graded Grievance Redressal Mechanism, which students are required to utilise to redress their legitimate grievances. A Standing Committee for Redressal of Grievances of Students (SCORGS) has also been constituted. The Bye Laws applicable to the University require that all issues be resolved through discussions and negotiation, via the Grievance Redressal Mechanism. Resort to violence, intimidation and coercive measures is completely proscribed. Clearly, contends the University in the counter-affidavit, the petitioner did not avail the prescribed mode of redressal of grievances and had, therefore, admittedly acted in violation of the Bye Laws governing the University. Even on this sole ground, it is contended that the writ petition merits dismissal.

23. The counter affidavit also annexes various complaints stated to have been received against the petitioner, addressed by the Acting Registrar, the Director (Admissions and Examinations) and the Associate Dean. Inasmuch as the behaviour of the petitioner is stated to have vitiated the academic atmosphere of the University, the counter-affidavit asserts that the petitioner is not entitled to any relief from this Court. Insofar as the condition of Ammar was concerned, the counter-affidavit states that he was responsible for his own condition, as he was a bipolar schizophrenic who had consumed marijuana. The University could not, therefore, be blamed for Ammars condition.

24. Apropos the manner in which the HPC proceeded with the matter, para 28 of the counter-affidavit deserves to be reproduced in full:
28. It is stated that the process of hearing before the said HPC commenced by way of communication dated 06.01.2023, by which the Petitioner were called upon to be present before the said Committee on 13.01.2023, present her case. It is pertinent to mention that on 13.01.2023, the Petitioner appeared before the HPC and was heard in detail and was afforded a reasonable opportunity to present her case in defence. The entire hearing was video recorded. On 27.01.2023, the HPC heard the complainants (the Acting Registrar, Director (Admissions and Examinations) and Associate Dean of Students) and video recorded the hearing. It is stated that on 29.01.2023, the HPC recorded the statements of two Senior Associate Professors, the said Chairperson, Department of International Relations, the said Assistant Director (Housekeeping and Student Services), one Assistant Professor, one Faculty Assistant and three students who had witnessed the incident of 23 November 2022 in the Acting Registrars office. The HPC found that the evidence was conclusive that the Petitioner shouted at Director (Admissions and Examinations) Professor Pankaj Jain in such abusive words as forget about your ****ing studies and that she was found guilty in respect of three complaints against. It is submitted that the proceedings before HPC had been concluded with the submission of its recommendations not only that the punishment of expulsion may be given to the petitioner but also that the petitioners may be debarred from joining any programme of the University in future. The competent authority has accepted the recommendations of the HPC and the Petitioner has been informed accordingly on 17.2.2003.

It is further contended that the decision to expel the petitioner from the University, taken on 2 March 2023, had received prior approval of the Acting President, as required by Rule 29 of the SAU Rules.

25. It is further contended in the counter-affidavit that the petitioner could have taken recourse to arbitration, as envisaged by Section 2713 of the SAU Act.

26. The counter-affidavit prays, therefore, that the writ petition be dismissed.

Rival Contentions

27. I heard Mr. Abhik Chimni learned counsel for the petitioner and Mr. Sandeep Kumar Mahapatra, learned counsel for the respondent-University at length. Many of the submissions advanced by them already stand captured in the recital hereinabove. They are not, therefore, being repeated.

Preliminary objections by Mr. Mahapatra

28. Besides reiterating the objections to the maintainability of the writ petition, and the contention that the University enjoys immunity from legal action, Mr. Mahapatra relied on para 40 of the judgment of the Constitution Bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology14, pointing out that the SCO is not State or other authority within the meaning of Article 12 of the Constitution of India, as it is not subject to Indian governmental control. Insofar as the public function of education that the SAU discharges, Mr. Mahapatra submits that it is not merely Indians, but outsiders, too, who can benefit therefrom. The ACU cannot, therefore, be analogised to an Indian educational institution such as, for example, the Jawahar Lal Nehru University. The very existence of the SAU is to implement the Agreement.

29. Insofar as the UN Act is concerned, Mr. Mahapatra refers me to Sections 315 in Article II, Section 11(a)16 in Article IV and Sections 18(a)17 and 2018 in Article V of the Schedule to the said Act, the benefit of which stands extended to the SAU and its officials. In this context, Mr. Mahapatra also cites the decision in G. Bassi Reddy v. International Crops Research Institute19.

30. Mr. Mahapatra further relies on para-20 of the decision in Sanjaya Bahel v. U.O.I.20.

Submissions of Mr. Chimni

31. Apart from the submissions contained in the pleadings of the petitioner, Mr. Chimni, first addressing the aspect of maintainability and availability of immunity to the University, submits that Section 4(1) and (2)21 of the SAU Act itself clarifies that the University is capable of being sued. Section 322 of the SAU Act, he points out, accords, to all provisions of the Agreement, set out in the Schedule to the SAU Act, the force of law. Clause 423 of Article 1 of the Agreement, which forms part of the Schedule to the SAU Act, includes, in the legal capacity of the University, the right to sue and to be sued in its name. The University, submits Mr. Chimni, cannot claim immunity from being sued under Article 226 of the Constitution of India.

32. Apropos the MEA Notification dated 15 January 2009, Mr. Chimni points out that the clause of the Notification, to which Mr. Mahapatra referred, itself clarifies that the Notification was extending, to the SAU and its officials, the benefit of the provisions in Articles II to VII of the Schedule to the UN Act only for giving effect to the said Headquarters Agreement. He submits that the benefit of Article VIII of the Schedule to the UN Act has not been extended to the University, so that the University cannot seek the benefit of Sections 29 and 3024, which are comprised in Article VIII. In this context, Mr. Chimni places reliance on paras 5 to 9, 19 and 30 of the judgment of the Supreme Court in Dr. Janet Jeyapaul v. S.R.M. University25. In support of his contention that, despite the provision for arbitration, the petitioner would be entitled to maintain the writ petition, Mr. Chimni relies on Whirlpool Corpn. v. Registrar of Trade Marks26 and Harbanslal Sahnia v. Indian Oil Corporation Ltd27 .

33. Thus, submits Mr. Chimni, it cannot be said that the writ petition is not maintainable. Nor can the University claim immunity from the consequences of its actions.

34. On merits, Mr. Chimni has placed reliance on the PCRR. It starts with the following recital:
The Competent Authorities of the South Asian University (hereafter SAU) has empowered the Proctorial Committee (hereafter Committee) to investigate cases of student indiscipline in violation of the student code of conduct on complaint by students , faculty members, SAU administration and/or on Suo motu cognizance by the Committee.

The competent authority to investigate into alleged indiscipline by students is, therefore, the Proctorial Committee, and not a High Powered Committee. As the constitution of the HPC had not been disclosed by the University in its email dated 6 January 2023, whereby the petitioner was called to attend personal hearing, the petitioner, in her response, desired to know the Constitution of the HPC. Besides, points out Mr. Chimni, the petitioner denied every allegation against her, point by point. Additionally, in paras 3 and 5 of her response, the petitioner specifically desired any evidence, submitted to the University on which it was relying against the petitioner, to be shared with her. She also sought permission to cross examine any witness who would testify against her before the HPC.

35. Besides the fact that the University did not accede, or even respond to, these requests, Mr. Chimni submits that the enquiry was held in violation of the stipulated procedure contained in the PCRR. He has placed reliance on the following Regulations contained in the PCRR:
Inquiry

1) The enquiry may be conducted by the Committee/a Sub- Committee as considered appropriate by the Proctor in each case.

2) The students will have the right to defend them before the Committee/Sub- Committee.

3) The Committee/Sub- Committee may summon any student with the general notice of 24 hours or with an extraordinarily notice of 12 hrs.

Evidence

The Committee/Sub- Committee shall follow the rules of evidence admissible in administrative enquiries and shall admit all evidence, including documentary evidence and evidence by witness, probative of the case before it.

Appeal

* The student may appeal to the Grievance Redressal Committee (GRC) of the SAU only after the announcement of the punishment.

* The GRC can reject the appeal of the student/can recommend the change in punishment/withdrawal of the punishment.

* Only the SAU President is the final authority to accept or reject the recommendations of the GRC.

36. The decision on the petitioners appeal, submits Mr. Chimni, stands completely vitiated, as it has been again signed by the Proctor. In effect, therefore, it was an appeal from Caesar to Caesar.

37. To support his submission that the impugned decisions against the petitioner had been taken in violation of the principles of natural justice, Mr. Chimni relies on the judgments of the Supreme Court in K.L. Tripathi v. State Bank of India28 and the decision of this Bench in Master Singham v. D.O.E.29 Any action which entails civil consequences, submits Mr. Chimni, has necessarily to be informed by natural justice, for which purpose he relies on para 66 of Mohinder Singh Gill v. Chief Election Commissioner30, para 15 of Canara Bank v. Debasis Das31 and para 8 of the judgment of the High Court of Punjab and Haryana in V.P. Gupta v. U.O.I.32

Submissions of Mr. Mahapatra in reply

38. The submissions of Mr. Mahapatra, in reply on the merits of the matter, have already been noted while recording the submissions contained in the rival pleadings. Interestingly, however, Mr. Mahapatra specifically relied on para 28 of the counter-affidavit filed by the University to justify the impugned decision.

Analysis

A. Is the writ petition maintainable?

39. Several summers have passed since the Supreme Court exorcised the ghost of Article 12 from the realm of Article 226. The once hallowed notion that a writ under Article 226 can be issued only against a State or other authority under Article 12 is now both archaic and anachronistic. The extant position in law is that a writ can be issued even against a private individual, provided the private individual discharges a public function, and the writ is for enforcement of that public function.

40. Decisions on the point are numerous. Binny enunciated the proposition thus:
29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury’s Laws of England, 3rd edn., Vol. 30, p. 682,

1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit.

There cannot be any general definition of public authority or public action. The facts of each case decide the point.

41. In Andi Mukta Sadguru Shree Muktajiee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani33, the Supreme Court expressed the principle thus:
17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The public authority for them means everybody which is created by statute and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority. It can be issued for the enforcement of any of the fundamental rights and for any other purpose.

*****

19. The scope of this article has been explained by Subba Rao, J., in Dwarkanath v. ITO34 :

This article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. 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 Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.

20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, 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 duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

21. In Praga Tools Corpn. v. C.A. Imanual35 this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the statutes even though they are not public officials or statutory body. It was observed:

It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (Cf. Halsbury’s Laws of England, 3rd Edn., Vol. II, p. 52 and onwards.)

22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. [Judicial Review of Administrative Action, 4th Edn., p. 540] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
(Emphasis Supplied)

42. In Janet Jeyapaul, the Supreme Court was dealing with an appeal filed by the appellant Janet Jeyapaul (Janet hereinafter) against the judgment of the Division Bench of the High Court of Madras. Janet was working as a lecturer in the Department of Biotechnology in the SRM University (SRMU). She was served with two memos dated 14 and 22 February 2012 alleging misdemeanour by her. She submitted detailed responses to the said memos. She was then served a notice dated 4 April 2012 stating that she would be relieved from the services of the University with effect from 4 May 2012.

43. Janet challenged the said notice before the High Court of Madras by way of Writ Petition 12676/2012. A learned Single Judge of the High Court allowed the writ petition by order 8 April 2013, quashed Janets termination and directed the University to reinstate her in service. The University appealed to the Division Bench which, by judgment dated 4 July 2013, allowed the appeal on the ground that, as SRM University was neither a State nor an other authority within the meaning of Article 12 of the Constitution of India, it was not amenable to the writ jurisdiction of the High Court. The Division Bench did not go into the merits of the case.

44. Janet appealed to the Supreme Court.

45. The Supreme Court appointed an eminent Senior Counsel to assist it in determining the issue in controversy. Paras 15 to 24 and 27 to 30 of the judgment of the Supreme Court deserved to be reproduced thus:
15. Submissions of Mr Harish Salve were manifold. 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, organisation, authority, etc., the test is to examine in the first instance the object and purpose for which such body/authority/organisation is formed so also the activity which it undertakes to fulfil the said object/purpose.

16. Pointing out from various well-known English commentaries such as de Smith’s Judicial Review, 7th Edn.; H.W.R. Wade and C.F. Forsyth’s Administrative Law, 10th Edn.; Michael J. Beloff in his article Pitch, Pool, Rink,Court?: Judicial Review in the Sporting World, 1989 Public Law 95; English decisions Breen v. Amalgamated Engg. Union36, ; Reg. v. Panel on Take-overs and Mergers, ex p Datafin Plc37; Evans v. Newton38 ; and of this Court in Andi Mukta and Zee Telefilms Ltd. v. Union of India39 , Mr Harish Salve submitted that perusal of these authorities/decisions would go to show that there has been a consistent view of all the learned authors and the courts all over the world including in India that the approach of the Court while deciding such issue is always to test as to whether the body concerned 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.

17. According to the learned counsel, if the aforesaid twin test is found present in any case then such person/body/organisation/authority, as the case may be, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution.

18. The learned Senior Counsel elaborated his submission by pointing out that the expression any person or authority used in Article 226 is not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing public function/duty. The learned counsel urged that emphasis is, therefore, always on activity undertaken and the nature of the duty imposed on such authority to perform and not the form of such authority. According to Mr Harish Salve, once it is proved that the activity undertaken by the authority has a public element then regardless of the form of such authority it would be subjected to the rigor of writ jurisdiction of Article 226 of the Constitution.

19. The learned counsel then urged that in the light of several decisions of this Court, one cannot now perhaps dispute that imparting education to students at large is a public function and, therefore, if anybody or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

20. The learned counsel further pointed out that the case in hand clearly shows that Respondent 1, a juristic body, is engaged in imparting education in higher studies and what is more significant is that Respondent 1 is conferred with a status of a Deemed University by the Central Government under Section 3 of the UGC Act. These two factors, according to Mr Harish Salve, would make Respondent 1 amenable to writ jurisdiction of the High Court under Article 226 because it satisfies the twin test laid down for attracting the rigor of writ jurisdiction of the High Court.

21. In reply, Mr Sanjay R. Hegde, learned Senior Counsel for Respondent 1 while supporting the impugned order S.R.M. University v. Janet Jeyapaul40, contended that if this Court holds that Respondent 1 is amenable to writ jurisdiction then apart from employees even those who are otherwise dealing with Respondent 1 would start invoking writ jurisdiction which, according to the learned counsel, would open the floodgate of litigation in courts.

22. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by Mr Harish Salve.

23. To examine the question urged, it is apposite to take note of what De Smith, a well-known treatise, on the subject Judicial Review has said on this question [See de Smith’s Judicial Review, 7th Edn., p. 127 (3-027) and p. 135 (3-038)].

AMENABILITY TEST BASED ON THE SOURCE OF POWER

The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision-maker. In identifying the classes of case in which judicial review is available, the courts place considerable importance on the source of legal authority exercised by the defendant public authority. Secondly and additionally, where the source of power approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self-regulatory organisations). We begin by looking at the first approach, based on the source of power.

JUDICIAL REVIEW OF PUBLIC FUNCTIONS

The previous section considered susceptibility to judicial review based on the source of the power: statute or prerogative. The courts came to recognise that an approach based solely on the source of the public authority’s power was too restrictive. Since 1987 they have developed an additional approach to determining susceptibility based on by the type of function performed by the decision-maker. The public function approach is, since 2000, reflected in the Civil Procedure Rules: Rule 54.1(2)(a)(ii), defines a claim for judicial review as a claim to the lawfulness of a decision, action or failure to act in relation to the exercise of a public function. (Similar terminology is used in the Human Rights Act, 1998 Section 6(3)(b) to define a public authority as any person certain of whose functions are functions of a public nature, but detailed consideration of that provision is postponed until later). As we noted at the outset, the term public is usually a synonym for governmental.
(emphasis supplied)

24. The English Courts applied the aforesaid test in Reg. v. Panel, wherein Sir John Donaldson, MR speaking for three-Judge Bench of Court of Appeal (Civil Division), after examining the various case laws on the subject, held as under: (All ER p. 564g-h)
In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body’s powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body’s decisions.
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27. This issue was again examined in great detail by the Constitution Bench in Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India41, wherein the question which fell for consideration was whether the Board of Control for Cricket in India (in short BCCI) falls within the definition of State under Article 12 of the Constitution. This Court approved the ratio laid down in Andi Mukta case but on facts of the case held, by majority, that BCCI does not fall within the purview of the term State. This Court, however, laid down the principle of law in paras 31 and 33 as under: (Zee Telefilms Ltd. case)
31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
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33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226.

28. It is clear from a reading of the ratio decidendi of the judgment in Zee Telefilms Ltd. firstly, it is held therein that BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against BCCI under Article 226 of the Constitution of India.

29. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High Court erred in holding that Respondent 1 is not subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other words, it should have been held that Respondent 1 is subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution.

30. This we say for the reasons that firstly, Respondent 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging public function by way of imparting education. Thirdly, it is notified as a Deemed University by the Central Government under Section 3 of the UGC Act. Fourthly, being a Deemed University, all the provisions of the UGC Act are made applicable to Respondent 1, which inter alia provides for effective discharge of the public function, namely, education for the benefit of the public. Fifthly, once Respondent 1 is declared as Deemed University whose all functions and activities are governed by the UGC Act, alike other universities then it is an authority within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an authority as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

46. Thus, in the above passages, the Supreme Court has not only held that a writ petition under Article 226 would lie against a private body discharging public function, for enforcement of the said public functions, but also clarified that imparting of education was in fact a public function.

47. The concept of public function, in this context, was further examined by the Supreme Court in its judgment in K.K. Saksena v. International Commission on Irrigation and Drainage42 (authored by A.K. Sikri, J.), which analysed a whole host of earlier decisions of the Supreme Court on the point. In that case, the appellant K.K. Saksena (Saksena hereinafter) was appointed as Secretary in the office of the respondent-International Commission on Irrigation and Drainage (ICID). His services were terminated. He challenged the order of termination by way of a writ petition before this Court. On the aspect of maintainability, Saksena contended that ICID was State within the meaning of Article 12 of the Constitution of India and that, even if ICID was not State it was nonetheless amenable to Article 226 as it was discharging public functions. ICID contested the maintainability of the writ petition.

48. A learned Single Judge of this Court dismissed the writ petition on the ground that ICID was neither a State nor was discharging any public function and was not, therefore, amenable to the writ jurisdiction of this Court. The Division Bench of this Court upheld the decision of the learned Single Judge.

49. Saksena appealed to the Supreme Court. Before the Supreme Court, Saksena conceded that ICID was not State within the meaning of Article 12. He, however, contended that ICID was nonetheless amenable to Article 226, as it was performing a public duty.

50. The Supreme Court took note, among others, of para 40 of the decision in Pradeep Kumar Biswas, on which Mr. Mahapatra has specifically placed reliance before me.

51. Having done so, the Supreme Court proceeded to held thus, in paras 32 to 34, 38 to 40, 42, 43 and 45 to 53 of the report:
32. If the authority/body can be treated as State within the meaning of Article 12 of the Constitution of India, indubitably a writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears in Part III of the Constitution, which pertains to fundamental rights. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of the High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose.
33. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the State includes the Government and Parliament of India and the Government and legislature of each State as well as all local or other authorities within the territory of India or under the control of the Government of India. It is in this context the question as to which body would qualify as other authority has come up for consideration before this Court ever since, and the test/principles which are to be applied for ascertaining as to whether a particular body can be treated as other authority or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), a writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be State under Article 12. Power is extended to issue directions, orders or writs to any person or authority. Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also for any other purpose. Thus, power of the High Court takes within its sweep more authorities than stipulated in Article 12 and the subject-matter which can be dealt with under this article is also wider in scope.
34. In this context, the first question which arises is as to what meaning is to be assigned to the expression any person or authority. By a catena of judgments rendered by this Court, it now stands well grounded that the term authority used in Article 226 has to receive wider meaning than the same very term used in Article 12 of the Constitution. This was so held in Andi Mukta Sadguru.
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38. In K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg.43 , this Court again emphasised that :

4. when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in performance of their duties.

In such a situation, remedy provided under Article 226 would be available to the teachers. The aforesaid two cases pertain to educational institutions and the function of imparting education was treated as the performance of public duty, that too by those bodies where the aided institutions were discharging the said functions like government institutions and the interest was created by the Government in such institutions to impart education.

39. In G. Bassi Reddy the Court was concerned with the nature of function performed by a research institute. The Court was to examine if the function performed by such research institute would be public function or public duty. Answering the question in the negative in the said case, the Court made the following pertinent observations:

28. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture purely on a voluntary basis. A service voluntarily undertaken cannot be said to be a public duty. Besides ICRISAT has a role which extends beyond the territorial boundaries of India and its activities are designed to benefit people from all over the world. While the Indian public may be the beneficiary of the activities of the Institute, it certainly cannot be said that ICRISAT owes a duty to the Indian public to provide research and training facilities.

Merely because the activity of the said research institute enures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of public function or public duty. The Court pointed out :

28. In Praga Tools Corpn. this Court construed Article 226 to hold that the High Court could issue a writ of mandamus to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. The Court also held that :

6. an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India44)

40. Somewhat more pointed and lucid discussion can be found in Federal Bank Ltd. v. Sagar Thomas45, inasmuch as in that case the Court culled out the categories of body/persons who would be amenable to writ jurisdiction of the High Court. This can be found in para 18 of the said judgment, specifying eight categories, as follows :

18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.

42. Reading of the categorisation given in Federal Bank Ltd., one can find that three types of private bodies can still be amenable to writ jurisdiction under Article 226 of the Constitution, which are mentioned at Sl. Nos. (vi) to (viii) in para 18 of the judgment extracted above.

43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is State within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is State under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.

45. On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, writ petition can lie and writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd., such a private body should either run substantially on State funding or discharge public duty/positive obligation of public nature or is under liability to discharge any function under any statute, to compel it to perform such a statutory function.

46. In the present case, since ICID is not funded by the Government nor is it discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature.

47. It is clear from the reading of the impugned judgment that the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely, that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226. The discussion of the High Court is contained in paras 34 to 36 and we reproduce the same for the purpose of our appreciation:

34. On a perusal of the preamble and the objects, it is clear as crystal that the respondent has been established as a scientific, technical, professional and voluntary non-governmental international organisation, dedicated to enhance the worldwide supply of food and fibre for all people by improving water and land management and the productivity of irrigated and drained lands so that there is appropriate management of water, environment and the application of irrigation, drainage and flood control techniques. It is required to consider certain kind of objects which are basically a facilitation process. It cannot be said that the functions that are carried out by ICID are anyway similar to or closely related to those performable by the State in its sovereign capacity. It is fundamentally in the realm of collection of data, research, holding of seminars and organising studies, promotion of the development and systematic management of sustained irrigation and drainage systems, publication of newsletter, pamphlets and bulletins and its role extends beyond the territorial boundaries of India. The memberships extend to participating countries and sometimes, as bye-law would reveal, ICID encourages the participation of interested national and non-member countries on certain conditions.

35. As has been held in Federal Bank Ltd. solely because a private company carries on banking business, it cannot be said that it would be amenable to the writ jurisdiction. The Apex Court has opined that the provisions of the Banking Regulation Act and other statutes have the regulatory measure to play. The activities undertaken by the respondent Society, a non-governmental organisation, do not actually partake the nature of public duty or State actions. There is absence of public element as has been stated in V.R. Rudani and Sri Venkateswara Hindu College of Engg. It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organisations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the Constitution and bye-laws, it is difficult to hold that the respondent Society has obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it.

36. As we perceive, the only object of ICID is for promoting the development and application of certain aspects, which have been voluntarily undertaken but the said activities cannot be said that ICID carries on public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution.

48. We are in agreement with the aforesaid analysis by the High Court and it answers all the arguments raised by the learned Senior Counsel appearing for the appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MoA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals, etc. that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character.

49. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In Praga Tools Corpn. , as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the employee concerned was seeking reinstatement to an office.

50. We have also pointed out above that in Election Commission of India v. Saka Venkata Rao46 this Court had observed that administrative law in India has been shaped on the lines of English law. There are a catena of judgments in English courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In R.(Hopley) v. Liverpool Health Authority47 (unreported)(30-7-2002), Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are : (i) wheth