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

Abstract

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.