IMPORTANT POINT
The judgment establishes that the writ jurisdiction under Article 226 applies to bodies performing public functions with a public law element, and the relief sought must have a direct nexus with the discharge of public function.

JUDGMENT :

MOUSHUMI BHATTACHARYA, J.

1. The petitioner is an Assistant Teacher of St. James’ School, Kolkata and prays for a declaration that administration of Covid-19 vaccine is not mandatory when it conflicts with a person’s personal religious beliefs. The petitioner also seeks a mandamus commanding the respondent School to forthwith allow the petitioner to continue his work as a teacher and release his salary with all arrears from October 2021.

2. The petitioner’s objection to being administered the Covid-19 vaccine is specific to the Covishield manufactured by Astra-Zeneca; on the ground that the clinical trials as documented in journals show that the vaccine has been experimented on foetuses (or foeti), which according to the petitioner, is against Christian beliefs. The petitioner says that the Covishield vaccine has hence become ‘tainted’ and cannot be forced on a devout, practising Christian. The petitioner is unsure of the methods employed in the clinical trials for the Covaxin vaccine and is hence resistant (ideologically) to any form of forced vaccination. The petitioner is outraged at having been denied entry into the School by reason of his refusal to be vaccinated. The grievance extends to deprivation of salary and not being permitted to carry on with his teaching commitments.

3. The petitioner is particularly aggrieved by a Notice issued by the School on 28th September, 2021, asking the staff to submit their Vaccination Certificates by 30th September, 2021, failing which the staff would be considered on leave without pay. Since the petitioner chose not to take the Covishield vaccine - or any other vaccine for that matter the petitioner was not allowed to enter the School premises since October 2021. The petitioner accordingly seeks a direction on the Principal, St. James’ School, to cancel the said Notice.

4. The respondent School, through learned counsel, has raised a point of maintainability of the writ petition. Counsel submits that the writ petition against St. James’ School, which is a private unaided school, cannot be maintained.

5. Counsel for the petitioner, on the other hand, urges that the School performs a public function in imparting education to students, and would hence come within the purview of Article 226 of the Constitution of India.

6. The question of maintainability of the writ petition, in light of the decisions shown, is being answered first.

7. The debate of which ‘person or authority’ can be pulled within the sweep (or stranglehold, as the case may be) of Article 226 of the Constitution of India has found expression in numerous decisions of the Supreme Court. Although the decision on amenability to writ jurisdiction may vary on the particular facts of a case, the focus on private bodies has shifted to and settled on the nature of the duties being performed by the private body. The emphasis is not on the source of power but on the performance of a function which can be equated to that of the State.

8. The consensus developed on the subject through the case laws is that a person or authority adorning the trappings of a State under Article 12 of the Constitution would inexorably be drawn into the fold of Article 226. This however excludes private law rights which would not be enforceable in writ jurisdiction as the underlying rationale of judicial review is a challenge to an action under administrative law which is separate and distinct from contractual relationships between parties or tortious liabilities arising from such relationships. The action must satisfy the test of public law in the form of discharge of public functions with the object of achieving a collective benefit for the public with the body having the authority to perform functions of a public nature.

9. Without doubt, private bodies can exercise public functions or functions with a public element, affecting a section of the public with public law implications. In other words, the functions performed by the private body must transcend