The public-private distinction in judicial review: a comparative analysis of India and England

ABSTRACT

The public-private distinction is a common feature of judicial review in commonwealth countries. This article compares the operation of this distinction in the determination of the amenability of entities or decisions to judicial review in India and England. It identifies certain differences in the two jurisdictions that otherwise share some broad similarities in their systems for judicial review and how the issue of amenability to judicial review is determined. These differences are then explained by reference to certain underlying concerns of judicial review in the two jurisdictions. The article demonstrates that differences in the underlying concerns of judicial review may result in differences in how the public-private distinction is applied, which, in turn, may result in different outcomes for the amenability of an entity or a decision to judicial review. A recognition of the differences is helpful in expounding and predicting the operation of the public-private distinction in the two jurisdictions.

KEYWORDS:

• Judicial review
• amenability
• public-private distinction
• India
• England

Acknowledgments

The author wishes to thank Moira Paterson, Colin Campbell, Patrick Emerton and the anonymous referees for their invaluable suggestions in improving the article.

Notes

1 Of the extensive literature, it is feasible to cite only a few here: Cosmo Graham and Tony Prosser, ‘Privatising Nationalised Industries: Constitutional Issues and New Legal Techniques’ (1987) 50 Modern Law Review 16; Terence Daintith and Monica Sah, ‘Privatisation and the Economic Neutrality of the Constitution’ [1993] Public Law 465; Michael Taggart (ed), The Province of Administrative Law (Hart Publishing 1997); Mark Freedland, ‘Public Law and Private Finance – Placing the Private Finance Initiative in a Public Frame’ [1998] Public Law 288; ACL Davies, The Public Law of Government Contracts (Oxford University Press 2008); Yseult Marique, Public-Private Partnerships and the Law: Regulation, Institutions and Community (Edward Elgar Publishing 2014).

2 Some recent work in this area includes: Tsvi Kahana and Anat Scolnicov (eds), Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations (Cambridge University Press 2016); Janet McLean, ‘Convergence in Public and Private Law Doctrines – The Case of Public Contracts’ (2016) 1 New Zealand Law Review 5; Stephen Thomson, ‘Judicial Review and Public Law: Challenging the Preconceptions of a Troubled Taxonomy’ (2017) 41 Melbourne University Law Review 890; Sofia Ranchordas, ‘Citizens as Consumers in the Data Economy: The Case of Smart Cities’ (2018) 7 Journal of European Consumer and Market Law 154.

3 (1981) 2 SCR 79 (Supreme Court of India (SCI)).

4 R v The Panel on Take-Overs and Mergers, Ex parte Datafin Plc [1987] QB 815 (Datafin) (England and Wales Court of Appeal (CA)).

5 M P Jain, Outlines of Indian Legal History (3rd edn, NM Tripathi 1972) 2, 5, 394–395.

6 For instance, Tata Cellular v Union of India (1994) 6 SCC 651 (SCI); Union of India v G Ganayutham (1997) 7 SCC 463 (SCI); Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant (2001) 1 SCC 182 (SCI).

7 Some recent work on this area includes: Lee Marsons, ‘Bifurcation, Unification and Calibration: A Comparison of Indian and English Approaches to Proportionality’ (2018) 2 Indian Law Review 26; Sanjay Jain and Shirish Deshpande, ‘Public Law Foundation of the Doctrine of Legitimate Expectations in India’ (2019) 3 Indian Law Review 61.

8 See above (n 1).

9 A major, also claimed to be the first, study of regulations in India has been published recently: Devesh Kapur and Madhav Khosla (eds), Regulation in India: Design, Capacity, Performance (Hart Publishing 2019). See also Apoorv Kurup, ‘Privatization and the Indian Judiciary’ (2006) 48 Journal of the Indian Law Institute 425.

10 Aftab Ahmed and Sudarshan Varadhan, ‘India aims to raise $47 billion from stake sales in state firms over 5 years’ (Reuters, 12 July 2019) <uk.reuters.com/article/us-india-economy-divestment-exclusive/exclusive-india-aims-to-raise-47-billion-from-stake-sales-in-state-firms-over-5-years-sources-idUKKCN1U7129> accessed 4 November 2019; Swaminathan Aiyar, ‘A Burst of Privatisation Looks Imminent in India’ (Financial Times, October 2019) <www.ft.com/content/5d491d12-e90f-11e9-aefb-a946d2463e4b> accessed 4 November 2019.

11 Thomas Poole, ‘The Reformation of English Administrative Law’ (2009) 68 Cambridge Law Journal 142.

12 It must, however, be noted that the relevant principles of judicial review are largely judge-made. The constitutional provisions do not stipulate the applicable principles, and there is no legislative codification of these principles.

13 The Supreme Court is the apex court of India, whereas the High Courts are the highest court in each Indian state. Appeals from the High Courts lie in the Supreme Court. The Supreme Court's decisions are binding on the High Courts and all other courts in India.

14 State of Orissa v Madan Gopal Rungta 1952 SCR 28, 33 (SCI).

15 UP State Cooperative Land Development Bank Ltd v Chandra Bhan Dubey (1999) 1 SCC 741 (SCI). See also Ramesh Ahluwalia v State of Punjab (2012) 12 SCC 331 (SCI); Brahma Chellaney v Union of India 2002 SCC OnLine Del 61 (High Court of Delhi).

16 Dwarkanath v ITO (1965) 3 SCR 536 [4] (SCI).

17 Binny Ltd v V Sadasivan (2005) 6 SCC 657 (SCI).

18 State of Gujarat v Gordhandas Keshavji Gandhi AIR 1962 Guj 128 [4] (High Court of Gujarat).

19 RD Singh v Bihar State Small Industries Corporation AIR 1974 Pat 212 (High Court of Patna); Ram Prashad v Indian Institute of Bankers AIR 1992 P&H 1 (High Court of Punjab and Haryana); Mysore Paper Mills Limited v Mysore Paper Mills Officers Association (2002) 2 SCC 167 (SCI); Virendra Kumar Srivastava v UP Rajya Karmachari Kalyan Nigam (2005) 1 SCC 149 (SCI); SS Rana v Registrar, Co-op Societies (2006) 11 SCC 634 (SCI); State of UP v Radhey Shyam Rai 2009 (3) SCALE 754 (SCI).

20 Santanu Sabhapandit, ‘Article 12 and Judicial Review of Administrative Action: An Analysis’ (2018) Indian Law Review 5.

21 Article 12 reads: ‘In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India’. The relevant ‘part’ is Part III of the Constitution, which contains all the fundamental rights granted under the Constitution.

22 Sukhdev Singh v Bhagatram Sardar Singh (1975) 1 SCC 421 [95] (SCI). See also PD Shamdasani v Central Bank of India AIR 1952 SC 59 (SCI); Vidya Verma v Shivnarain AIR 1956 SC 108 (SCI).

23 For the relevant cases where the indicators were identified, the reader may refer to the footnotes accompanying Table 1.

24 Zee Telefilms Ltd v Union of India (2005) 4 SCC 649 (SCI) [29]; Board of Control for Cricket in India v Cricket Association of Bihar (2015) 3 SCC 251 (SCI) [29].

25 Datafin (n 4) 835, 850, 851.

26 Sukhdev Singh (n 22) [63]–[67].

27 Datafin (n 4) 850, 852 (Nicholls LJ).

28 Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 111 [40].

29 Balmer Lawrie and Co v Partha Sarathi Sen Roy (2014) 1 SCC(LS) 114 [25].

30 Ramana Dayaram Shetty v International Airport Authority of India (1979) 3 SCC 489.

31 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 WLR 1036, 1041 (High Court of England and Wales, Queen's Bench Division (QB)).

32 Ajay Hasia (n 3); Governor of Delhi v VK Sondhi AIR 2007 SC 2885 (SCI).

33 Cf R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587 (CA) [35] (Elias LJ), where public funding has been identified as an indicator of publicness in the context of judicial review under the Human Rights Act 1998.

34 Datafin (n 4) 847 (Lloyd LJ).

35 Flemingo Duty-Free Shop Pvt Ltd v Union of India 2008 Supp Bom CR 524 (High Court of Bombay) [41]–[42].

36 R v Servite Houses and Wandsworth London Borough Council (2001) 33 HLR 35 (QB) [76].

37 See R v Cobham Hall School [1998] ELR 389 (QB) 396.

38 ABL International Ltd v Export Credit Guarantee Corporation of India Ltd (2004) 3 SCC 553 (SCI) [22].

39 Datafin (n 4) 838; Ex parte Wachmann (n 31) 1040, 1041.

40 R v Bolsover District Council, Ex parte John Pepper [2001] JPL 804 (QB) [33]; R (Molinaro) v Kensington and Chelsea RLBC [2001] EWHC Admin 896 (QB).

41 Ajay Hasia (n 3). With respect to the declining prevalence of this indicator, see Santanu Sabhapandit, ‘Application of Public Law Principles to entities implementing PPPs in India’ (2015) Public Procurement Law Review 33, 42.

42 Datafin (n 4).

43 Zee Telefilms (n 24) [29], [31].

44 ibid.

45 Colin D Campbell, ‘Monopoly Power as Public Power for the Purposes of Judicial Review’ (2009) 125 Law Quarterly Review 491. For counter arguments, see Mark Elliott, ‘Judicial Review's Scope, Foundations and Purposes: Joining the Dots’ [2012] New Zealand Law Review 75; Alexander Williams, ‘Judicial Review and Monopoly Power: Some Sceptical Thoughts’ (2017) 133 Law Quarterly Review 656.

46 For instance, Datafin (n 4) 835, 846; The Queen v The Disciplinary Committee of the Jockey Club, Ex parte Aga Khan [1993] 1 WLR 909, 924 (CA). In Aga Khan, although the monopoly position of the Jockey Club was not considered sufficient to render it amenable to judicial review, the court's opinion was mainly based on the contractual relationship between the applicant and the club.

47 For instance, Ajay Hasia (n 3); Mysore Paper Mills (n 19); Balmer Lawrie and Co v Partha Sarathi Sen Roy (2013) 8 SCC 345 (SCI); Pradeep Kumar Biswas v Indian Institute of Chemical Biology (2002) 5 SCC 111 (SCI); BS Minhas v Indian Statistical Institute (1984) AIR 363 (SCI).

48 Instances of cases where this indicator has been applied are Datafin (n 4), Aga Khan (n 46); Cobham Hall School (n 37); Ex parte Wachmann (n 31); Servite Houses (n 36); R (Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin) (QB).

49 Ajay Hasia (n 3).

50 Notably, in Sukhdev Singh (n 22) [97], it was recognised that public funding would not indicate state action, unless the activities so funded are also subject to unusual level of government control. However, in Ramana Dayaram Shetty v International Airport Authority of India (1979) 3 SCC 489 (SCI) [15], the SC took the view that public funding that covers almost the entire expenditure of an entity will impart the entity a governmental character.

51 R (on the application of Mullins) Jockey Club Appeal Board (No 1) [2005] EWHC 2197 (Admin) (QB) [35]. Justice Stanley Burnton contended that many indisputably private bodies carrying out cultural activities or charities receive public funding, but that does not make those entities governmental in nature.

52 For instance, Lord Neuberger in YL v Birmingham City Council and others [2007] UKHL 27 (House of Lords (HL)) [165] opined that where public funding is for the provision of a service, it is easier to contend that the business as a whole is a function of public nature. It is difficult, in comparison, to contend that services provided to a specific individual constitute a public function. Lord Neuberger, however, did not explain why or how public funding may turn the nature of a function into a public function.

53 Erusian Equipment & Chemicals Ltd v State of West Bengal 1975 1 SCC 70 (SCI) [17]; Kumari Shrilekha Vidyarthi v State of UP (1991) 1 SCC 212 (SCI) [24]. Article 14 of the Constitution contains the fundamental right to equality.

54 ABL International Ltd (n 38) [22].

55 Ex parte Pepper (n 40).

56 Molinaro (n 40).

57 It may be noted that whereas Ex parte Pepper involved a decision to enter into a contract, Molinaro involved a decision made pursuant to a contract. Despite this difference, in the context of the principles for the amenability of contractual decisions to judicial review, both these cases are referred together. For instance, see R (Trafford) v Blackpool BC [2014] EWHC 85 (Admin) (QB) [44], [45], [55].

58 Molinaro (n 40) [65].

59 ibid [67]–[69].

60 See Justice Stephen Davies's observations in Trafford (n 57) 1005–1006. His summary of the position in England regarding the amenability of contractual decisions of public bodies to judicial review does not indicate any clear preference for either approach.

61 James Maurici, ‘Public Law Reviewability of Land Disposal (and Management) Decisions’ (2014) 19 Judicial Review 237, 251. Based on a survey of decisions, Maurici concludes that the balance of authority indicates a preference for the approach under Ex parte Pepper.

62 Flemingo Duty-Free Shop (n 35).

63 ibid [41]–[42].

64 Servite Houses (n 36).

65 Servite Houses (n 36) [76].

66 ibid.

67 Cobham Hall School (n 37); R v Panel on Takeovers and Mergers, Ex parte Guinness [1989] 1 All ER 509 (CA). See also Lord Woolf and Jeffrey Jowell (eds), Judicial Review of Administrative Action (5th edn, Sweet & Maxwell 1995) [3–031].

68 See text accompanying above (n 63).

69 Elliot (n 45) 75.

70 Elliott (n 45); 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) 91.

71 Peter Cane, ‘Accountability and the Public/Private Distinction’ in Nicholas Bamforth and Peter Leyland (eds), Public Law in a Multi-Layered Constitution (Hart Publishing 2003) 247.

72 A large part of the literature on judicial review in India pertains to public interest litigation (PIL). Various aspects of PIL have attracted considerable academic attention and have also led to some theorisation of the constitutional role of the judiciary. However, the literature on PIL is primarily focussed on the judicial interpretation and protection of the fundamental rights. See Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4 Third World Legal Studies 107; Pratap Bhanu Mehta, ‘The Rise of Judicial Sovereignty’ (2007) 18 Journal of Democracy 70; Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ (2009) 28 Civil Justice Quarterly 19; Parmanand Singh, ‘Promises and Perils of Public Interest Litigation in India’ (2010) 52 Journal of the Indian Law Institute 172; Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University Press 2016).

73 For a discussion on the peremptory effect of rights-based review over non-rights-based review, see Santanu Sabhapandit (n 20).

74 Khyerbari Tea Co Ltd v State of Assam 1964 AIR 925 (SCI); Shantabai v State of Bombay 1958 AIR 532 (SCI).

75 These indicators were enumerated in Ajay Hasia (n 3) and have been included in Table 1.

76 Sukhdev Singh (n 22).

77 Notably, Justice Mathew's judgment was not the majority judgment, although it concurred with the majority judgment in the case.

78 Ramana Dayaram Shetty (n 50).

79 Sukhdev Singh (n 22) [91]–[93].

80 Article 13(2) reads: ‘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’.

81 That this is not the case is self-evident from the language of Article 32 and Article 226.

82 Sukdhev Singh (n 22) [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.

83 Unlike, for instance, s 33 of the Constitution of South Africa.

84 EP Royappa v State of Tamil Nadu (1974) AIR 555 (SCI); Maneka Gandhi v Union of India (1978) AIR 597 (SCI).

85 HM Seervai, Constitutional Law of India, vol 1 (4th edn, Universal Law Publishing 2002) 438–439.

86 ibid. See also 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 (Oxford University Press 2016) 699.

87 Raeesa Vakil, ‘Constitutionalizing Administrative Law in the Indian Supreme Court: Natural Justice and Fundamental Rights’ (2018) 16 International Journal of Constitutional Law 475; Santanu Sabhapandit (n 20).

88 Khaitan (n 86), 711–714.

89 SP Sathe, Administrative Law (7th edn, Lexis Nexis 2004) 440.

90 Upendra Baxi, ‘Introduction to the Seventh Edition: The Myth and Reality of Indian Administrative Law’ in IP Massey, Administrative Law (8th edn, Eastern Book Company 2012).

91 (1985) 3 SCC 398 (SCI) [96] (Madon J).

92 Michael Taggart, ‘Proportionality, Deference, Wednesbury’ [2008] New Zealand Law Review 423, 439. Taggart used the term in the context of comparing judicial review in England under the HRA, which uses the test of proportionality, with domestic judicial review in England, which uses the test of Wednesbury unreasonableness. He described the former as the constitutional motorway or autobahn, and the latter as a maze, indicating that for a potential applicant the preference would be for the former.

93 See Christopher Forsyth (ed), Judicial Review and The Constitution (Hart Publishing 2000).

94 See Murray Hunt, ‘Against Bifurcation’ in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart Publishing 2009); Varuhas (n 70).

95 [1998] Env LR 111 (QB).

96 ibid 121.

97 ibid.

98 ibid.

99 Michael Taggart (n 92) 477.

100 ibid. Although not specifically defined, the phrase ‘institutional, functional and pragmatic limitations on judicial review’ has been used throughout the article in reference to the concepts like separation of powers, the merit v law dichotomy, comparative institutional competence etc.

101 Varuhas (n 70) 103.

102 Richard Clayton and Hugh Tomlinson, The Law of Human Rights (2nd edn, Oxford University Press 2009) [6.187]–[6.188].

103 Varuhas (n 70) 95, 101.

104 ibid.

105 ibid 102.

106 ibid 104.

107 ibid 105.

108 Elliott (n 45).

109 ibid 87–88, 90. Notably, Elliott expresses his preference for a programmatic test over the test of public law functions, which he considers to be ambiguous. Under a programmatic test, the relevant question is if the function in question is performed pursuant to a governmental programme.

110 ibid.

111 [2003] UKHL 37 (HL) [52].

112 Elliott (n 45) 86–87.

113 Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing 2001) 212.

114 [2001] EWCA Civ 713 (CA).

115 ibid [33]–[34].

116 ibid.

117 Aston Cantlow (n 111) [52].

118 ibid. The House of Lords referred to Dawn Oliver, ‘Chancel Repairs and the Human Rights Act’ (2001) Public Law 651.

119 Dawn Oliver, ‘The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act’ (2000) Public Law 476, 487.

120 Aston Cantlow (n 111) [49]–[51].

121 YL (n 52).

122 Aga Khan (n 46).

123 Ex parte Wachmann (n 31).

124 Elliott (n 45) 88.

125 ibid 86. Elliott asserts that in order to determine if the decision-maker is governmental, it is essential to take institutional considerations into account.

126 See London and Quadrant Housing Trust (n 33) [27].

127 Oliver (n 119) 479.

128 Aston Cantlow (n 111) [7].

129 Aston Cantlow PCC (n 114).

130 Alexander Williams, ‘Public Authorities and the HRA 1998: Recent Trends’ (2017) 22 Judicial Review 247, 255.

131 Aston Cantlow PCC (n 114) [33] (Sir Andrew Morrit V-C).

132 See Alexander Williams (n 130).

133 In the case of core public authorities.

134 See Ex Parte Pepper (n 40); Trafford (n 57); Daniel Johns Manchester Ltd v Manchester City Council [2018] EWHC 464 (Admin) (QB). Although Molinaro (n 40) suggested a general presumption of amenability of decisions by public bodies, the extent of the suggested presumption was limited to decisions in exercise of statutory powers.

135 See Thomas Poole (n 11); Michael Taggart, ‘Reinventing Administrative Law’ in Nicholas Bamforth and Peter Leyland (eds.), Public Law in a Multi-Layered Constitution (Hart Publishing 2003). There are also normative claims that see judicial review as a scheme for protecting the rights of citizens in public law. For a brief overview of these claims see Thomas Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford Journal of Legal Studies 435.

136 Jason Varuhas, ‘The Reformation of English Administrative Law: Rights, Rhetoric and Reality’ (2013) 72 Cambridge Law Journal 369 (‘The Reformation’); Varuhas (n 70). See also Thomas Poole, ‘Questioning Common Law Constitutionalism’ (2005) 25 Legal Studies 142.

137 Varuhas ‘The Reformation’ (n 113) 372–376.

138 ibid.

139 See the discussion under Section 3.4.

140 Servite Houses (n 36).

141 Servite Houses (n 36) [93].

142 YL (n 52) [120].

143 YL (n 52) [54].

144 Law Commission of India, Legal Framework: BCCI vis-à-vis Right to Information Act, 2005 (Law Com No 275, 2018).

145 ibid Ch VI.

146 Poplar Housing Association Ltd v Donoghue [2001] EWCA Civ 595 (CA).

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Santanu Sabhapandit

Santanu Sabhapandit is a PhD candidate at the Faculty of Law, Monash University.