Application of Public Law Principles to Entities Implementing PPPs in India : The Current 'State' of Affairs

Privatization of public corporations is often fraught with the dichotomy of potential efficiency gains in production and management on one hand and possible damage to some of the safeguards and benefits available to their employees, stakeholders and consumers that are based on public law principles. Similar concerns have also been raised regarding the adoption of Public Private Partnership models to open up traditional public sector services to private sector participation. The desirability of and justification for their adoption as an alternative to traditional government funded and government managed provision of public infrastructure have been dealt with in an extensive literature on Public Private Partnership models. Accountability of decision making at various stages before selection of the private participant and during the implementation of public infrastructure projects is another facet that has drawn substantial attention. India's experience with Public Private Partnership models for provisioning of public infrastructure may not yet have matured into manifested trends and the legal and policy regimes for Public Private Partnerships are in a formative state. While there is substantial literature available on the existing policies and policy-related issues as well as case studies on Public Private Partnerships in India, a distinct dimension appears if one looks into the core legal principles governing the structures adopted to merge the private sector with the government for the purposes of implementing projects. This article looks into some of the prevalent legal principles to analyze the viability of such structures, especially from the standpoint of private sector participants. It concludes that the prevalent legal principles may not readily translate into a clear methodology for delineating Public Private Partnerships within or beyond the purview of public law, and that therein lies a potential for additional costs for the private sector participants that may be unaccounted for at the stage of entering into an agreement to participate in a Public Private Partnership project