Krupakar Manukonda has drawn my attention to an interesting Supreme Court judgment handed down yesterday. In Dr. Janet Jeyapaul v SRM University, the question was whether a writ petition was maintainable against the SRM University, which is a “deemed University” within the meaning of S. 3 of the UGC Act (the petitioner had filed a writ petition complaining of unfair termination of services).
The Supreme Court held that the petition was maintainable under Article 226 of the Constitution, since SRM University had been constituted for – and was engaged in – performing a “public function”. In paragraphs 15 and 16, it relied upon De Smith, “a well-known treaty (sic!)” on judicial review, and the English case of R v Panel. This is somewhat curious, since both the treatise and the judgment deal with the scope of judicial review in a common law system sans a Constitution, while in the present case, the issue turned upon the scope of Article 226 of the Constitution. In any event, in paragraph 22, the Court provided five reasons for its decision:
“Firstly, respondent No. 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 No. 1, which inter alia provides for effective discharge of the public function – namely education for the benefit of public. Fifthly, once respondent No. 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 High Court under Article 226 of the Constitution.”
The underlined paragraph is a little curious. It is by now well-established that the correct test for determining whether or not a particular body falls within the meaning of “other authority” under Article 12, is whether it is within the “functional, financial and administrative” control of the State. The fact that the legal status of a body is determined by a statute is neither necessary, nor sufficient, for it to fall within Article 12. In the early case of Sukhdev Singh v Bhagat Ram, the Supreme Court had noted:
“A company incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of the Act. It is not a statutory body because it is not created by the statute. It is a body created in accordance with the provisions of the statute.”
There is a distinction, therefore, between a body that is conferred with a certain legal status under a statute, and a body that is created by the statute. Unarguably, in the former case, the legal status, without anything more, is insufficient to bring the body within the meaning of Article 12. Here, however, the Supreme Court seems to have held that the mere fact that the SRM University is brought within the purview of the UGC Act automatically brings it within Article 12, without any analysis of whether the control test has been satisfied.
Indeed, in 2012, while dealing with an identical issue, the Rajasthan High Court observed:
“Perusal of the pleadings reveals that no facts pertaining to financial or administrative involvement and control of the Central or the State Government in any manner has been pleaded. The only argument is in regard to section 3 of the UGC Act whereby BITS has been declared as ‘deemed to be university’. Merely declaring respondent BITS as deemed to be university does not cover it under Article 12 of the Constitution.”
(The single judge’s opinion has been challenged on the ground that a previous division bench of the Rajasthan High Court had already held BITS to fall within Article 12. Interestingly, in that case, the Court had gone into a detailed analysis of the functional, financial, and administrative control exercised upon BITS by the government – see here).
It is unclear why the Supreme Court needed to go into Article 12 at all. As we have discussed before on this blog, the tests for maintainability under Articles 12 and 226 are different, and the word “authority” has a much broader meaning under Article 226 than it does under Article 12. A public function test is sufficient to attract Article 226, as compared to the much stricter control test under Article 12. This, being an Article 226 case, could have been decided solely on public function grounds. The introduction of Article 12, and the manner in which it has been discussed, raises some concerns about the future direction of law on the point.