Introduction
The Indian Constitution, through Article 226, empowers every High Court to issue writs not only for the enforcement of fundamental rights under Part III but also for “any other purpose,” which includes legal rights that are not necessarily fundamental. Over time, judicial interpretation has expanded the reach of writ jurisdiction to include even private bodies, provided their actions involve a public law element. Where a private entity performs a public function or affects public interest, its actions can be examined under writ jurisdiction. In a time when many essential services are managed by private institutions, understanding when and how writs can be issued against such parties has become increasingly relevant.
What is Writ of Mandamus ?
The writ of mandamus is traditionally understood as a directive issued to public authorities to compel the performance of public duties. However, courts have clarified that this writ is not limited by the identity of the authority but rather determined by the nature of the function performed. When a private entity discharges duties that are public in character, the writ of mandamus may be issued even against such a private body.
In St. Mary’s Education Society v. Rajendra Prasad Bhargava, the Supreme Court once again clarified that the maintainability of a writ petition does not solely rest on whether the respondent is “State” under Article 12. What matters more is the nature of the function performed. In the same vein, the Court cited Binny Ltd. v. V. Sadasivan, holding that Article 226 is broadly framed to permit writs such as mandamus against private authorities, provided they are discharging public duties. It emphasized that “the decision sought to be corrected or enforced must be in the discharge of public function.”
The key takeaway from these rulings is that public duty, not public ownership, is the determining factor for the maintainability of writ petitions.
Essentials of Writ Jurisdiction Against Private Bodies
1. Discharge of Public Functions
Writ jurisdiction lies against a body whether public or private, if it discharges a function that serves the general public or collective interest. This may include services fundamental to the community such as education, healthcare, transportation, or utilities. The performance of such duties, even when undertaken by a private actor, attracts public law obligations.
The Supreme Court elaborated on this principle in St. Mary’s Education Society v. Rajendra Prasad Bhargava, citing Binny Ltd. v. V. Sadasivan in Para 41:
“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… 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 judgment clarified that even when the respondent is a private body, the existence of a public law element renders writ jurisdiction under Article 226 applicable.
2. Presence of a Public Law Element
The presence of a public law element is key to invoking Article 226. When the rights in question arise from statutory duties, regulatory frameworks, or public expectations, writ jurisdiction extends even to private bodies.
In Ajay Hasia v. Khalid Mujib Sehravardi, the Supreme Court held that entities performing functions of public importance, especially those aligned with governmental duties, may be treated as “instrumentalities of the State”:
“If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.”
3. Check on Arbitrariness and Abuse of Power
When private bodies perform public functions, their actions must meet constitutional standards of fairness and accountability.
In Food Corporation of India v. Kamdhenu Cattle Feed Industries, the Supreme Court held that even in contractual matters, State authorities and by extension, private entities serving public roles must conform to Article 14 as stated :
“A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’… Unfairness in the exercise of power may amount to an abuse or excess of power.”
This judgment reinforces that arbitrary decision-making, even by non-State actors performing public functions, can invite judicial scrutiny under writ jurisdiction.
4. Enforcement of Rule of Law and Access to Justice
The writ of mandamus serves as a constitutional safeguard when essential services are unjustly withheld. It ensures that legal entitlements linked to public interest are not defeated by procedural or contractual barriers.
In Kamal Kant Automobiles v. Hindustan Petroleum Corporation Ltd., the Court held that:
“For the prayer of restoration of dealership, the only remedy available to the petitioners is by means of a writ petition, as neither a civil suit is maintainable nor is this remedy available before an arbitrator…”
When services vital to public life are withheld, writ jurisdiction provides a direct constitutional remedy.
When Private Entities Are Treated as “State”
Constitutional jurisprudence recognizes that certain private bodies, though legally distinct, may function as extensions of the State. In Sukhdev v. Bhagatram, the Court held that institutions engaged in matters of high public interest or performing essential public functions are, by virtue of their role, deemed government agencies. This position was reinforced in Ajay Hasia v. Khalid Mujib Sehravardi, where the Court observed that corporations acting as instrumentalities or agencies of the government are subject to the same constitutional limitations as the State. If a body is financially, administratively, or functionally controlled by the State, or performs functions integral to governance, it cannot evade writ jurisdiction under Article 226.
Statutory Mandate for State Intervention in Essential Services
Essential services that impact public welfare are governed by the Essential Commodities Act, 1955, which empowers both the Central and State Governments to ensure their uninterrupted supply and fair distribution.
Section 3(1), empowers the Central Government to regulate production and distribution to ensure supply.
Section 5 permits delegation to State Governments, enabling local authorities to act when essential services are disrupted.
This framework has been judicially acknowledged in Bharat Petroleum Corporation Ltd. v. Chembur Service Station, where the Court upheld the continuity of services during ongoing legal disputes, recognizing the larger public interest at stake. Although the case involved a specific sector, the underlying principle remains broadly applicable: essential services must remain uninterrupted, and legal mechanisms exist to ensure that public access is preserved.
Thus, where private entities obstruct access to essential services, the State is legally empowered and constitutionally expected to intervene and restore functionality in the public interest.
Conclusion
In a liberalized economy where private players are increasingly engaged in public-facing roles, the distinction between “private” and “public” becomes blurred in functional terms. Writ jurisdiction under Article 226 serves as a constitutional safeguard, ensuring legal accountability not only against the State but also against any authority discharging public duties.
Judicial precedent firmly establishes that when the function is public and the duty owed is public, remedies under Article 226 remain available. Thus, the scope of writ jurisdiction against private parties represents a crucial tool in upholding the rule of law, ensuring that essential services, statutory entitlements, and fair administrative action are not compromised, regardless of the nature of the authority involved.
Author – Arisha Malik, Faculty of Law, Aligarh Muslim University (AMU)
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