Sie sind auf Seite 1von 41

Criminology

Constitutional Law II
Sales of Goods Act
Public International Law
Transfer of Property
Evidence Act
Family Law II
Criminal Law II
FRIDAY, JANUARY 26, 2007
Administrative Law
Administrative Law & Rule of Law
It is impossible to attempt any precise definition of administrative law
which can cover the entire range of administrative process. The
American approach to administrative law is denoted by the definition by
the definition of administrative law as propounded by Davis.
According to him, administrative law is the law concerning the powers
and procedures of administrative agencies, including especially the law
governing judicial review of administrative action. It does not include
the enormous mass of substantive law produced by the agencies. An
administrative agency, according to him, is a governmental authority,
other than a court and other than a legislative body, which affects the
rights of private parties through either adjudication or rule-making.
The emphasis in the definition is on judicial control of administrative
agencies. But other control mechanisms, like the parliamentary control
of delegated legislation, control through administrative appeals, and
through the ombudsman type institution, are quite important and
significant and need to be studied for a fuller comprehension of
administrative law.
Dicey has defined administrative law as denoting that portion of a
nations legal system which determines the legal status and liabilities of
all state officials, which defines the rights and liabilities of private
individuals in their dealings with public officials, and which specifies
the procedure by which those rights and liabilities are enforced. The
definition is narrow and restrictive in so far as it leaves out of
consideration many aspects of administrative law, e.g., it excludes many
administrative authorities, which strictly speaking, are not officials of
the states such as public corporations; it also excludes procedures of
administrative authorities or their various powers and functions, or
their control by Parliament or in other ways, Diceys formulation refers
primarily to one aspect of administrative law, i.e. control of public
officials. Dicey formulated his definition with the droit administratif in
view.
Sir Ivor Jennigs defines administrative law as the law relating to
Law Notes
About Me
NAME: MAYANK MEHANDRU
View my complete profile
Report Abuse Next Blog Create Blog Sign In
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
1 of 41 10/22/2011 5:13 AM
administration. It determines the organization, powers and the duties of
administrative authorities. This formulation does not differentiate
between administrative and constitutional law. It lays entire emphasis
on the organization, power and duties to the exclusion of the manner of
their exercise. Jennings formulation leaves many aspects of
administrative law untouched, especially the control mechanism. The
English administrative law does not lay so much emphasis on
procedures of administrative bodies as does the American
administrative law. Jennings; definition does not attempt to distinguish
constitutional law from administrative law, and the former in its usual
meaning has a great deal to say concerning the organization of
administrative authorities.
A satisfactory and a proper formulation to define the scope, content and
ambit of administrative law appears to be s follows: Administrative law
deals with the structure, powers and functions of the organs of
administration; the limits of their powers; the methods and procedures
followed by them in exercising their powers and functions; the methods
by which their powers are controlled including the legal remedies
available to a person against them when his rights are infringed by their
operation.
The term Rule of Law refers to a government based on principles of
law and not of men. In a democracy, the concept has assumed different
dimension and means that the holders of public powers must be able to
justify publically that the exercise of power is legally valid and socially
just. Dicey developed this concept of Rule of Law. Dicey said Rule of
Law means, the absolute supremacy of predominance of regular law as
opposed to the influence of arbitrary power and excludes the existence
of arbitrariness, or prerogative, or even wide discretionary authority on
the part of the government. According to him, wherever there is
discretion there is room for arbitrariness. The term Rule of Law is used
in contradiction to rule of man and rule according to law. It is modern
name for natural law.
The term Rule of Law can be used in two senses: (i) formalistic sense:
and (ii) ideological sense. If used in the formalistic sense it refers to
organized power as opposed to a rule by one man and if used in an
ideological sense it refers to the regulation of the relationship of the
citizen and the government and in this sense it becomes a concept of
varied interest and contents.
In its ideological sense, the concept of Rule of Law represents an ethical
code for the exercise of public power in any country. Strategies of this
code may differ from society to society depending on the societal needs
at any given time, but its basis postulates are universal covering all
space and time. These postulates include equality, freedom and
accountability.
Diceys formulation of the concept of Rule of Law, which according to
him forms the basis of the English Constitutional Law, contains three
principles:
(i) Absence of discretionary power in the hands of the government
officials.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
2 of 41 10/22/2011 5:13 AM
(ii) No person should be made to suffer in body or deprived of his
property except for a breach of law established in the ordinary legal
manner before the ordinary courts of the land. In this sense, the Rule of
Law implies:
(a) Absence of special privileges for a government official or any other
person;
(b) All the persons irrespective of status must be subjected to the
ordinary courts of the land;
(c) Everyone should be governed by the law passed by the ordinary
legislative organs of the State.
(iii) The rights of the people must flow from the customs and traditions
of the people recognized by the courts in the administration of justice.
Dicey claimed that the Englishmen were ruled by law and law alone; he
denied that in England the government was based on exercise by
persons in authority of wide, arbitrary or discretionary powers. While in
many countries the executive exercised wide discretionary power and
authority, it was not so in England. Dicey asserted that wherever there
was discretion there was room for arbitrariness which led to insecurity
of legal freedom of the citizens.
Another significance which Dicey attributed to the concept of Rule of
Law was equality before the law or the equal subjection of all classes of
the ordinary law of the land administered by the ordinary law courts.
In England, he maintained, every person was subject to one and the
same body of law. He criticized the system of droit administratif
prevailing in France where there were separate administrative tribunals
for deciding cases between the government and the citizens. He went on
to assert that in England there was no administrative law. The idea of
having separate bodies to deal with disputes in which government is
concerned, and keeping such matters out of the purview of the common
courts, asserted Dicey, was unknown to the law of England, and indeed
was fundamentally inconsistent with the English traditions and
customs.
Dicey was factually wrong in his analysis as he ignored the privileges
and immunities enjoyed by the Crown (and thus the whole
government) under the cover of the constitutional maxim that the king
can do no wrong and also ignored the many statutes which conferred
discretionary powers on the executive which could not be called into
question in ordinary courts. He also ignore the growth of administrative
tribunals. He misunderstood and miscomprehended the real nature of
the French droit administratif . He thought that this system designed to
protect officials from liability for their acts, and as such, was inferior to
the British system of ordinary courts deciding disputes between the
citizen and the state. But, as later studies have revealed, droit
administratif is in certain respects more effective in controlling the
administration than the common law system. Dicey was denying the
existence of administrative law in England.
Dicey asserted, that so long as the courts dealt with a breach of law by
an official, there could be no droit administratif in England and the rule
of law would be preserved. Dicey thus reluctantly recognized the
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
3 of 41 10/22/2011 5:13 AM
beginning of administrative law in England under the force of
circumstances. However, since then, things have changed rather
demonstrably.
Diceys concept of Rule of Law has had its advantages and
disadvantages. Although, complete absence of discretionary powers, or
absence of inequality, are not possible in this administrative age, yet the
concept of the rule of law has been used to spell out many propositions
and deductions to restrain an undue increase in administrative powers
and to create controls over it. The rule of law has given to the countries
following the common law system, a philosophy to curb the
governments power and to keep it within bounds; it has provided a sort
of touchstone or standard to judge and test administrative law in the
country at a given time.
Similarly, rule of law is also associated with the supremacy of courts.
Therefore, in the ultimate analysis, courts should have the power to
control administrative action and any overt diminution of that power is
to be criticized. The principle implicit in the rule of law that the
executive must act under the law, and not by its own decree or fiat, is
still a cardinal principle of the common law system. It also serves as the
basis of judicial review of administrative action for the judiciary sees to
it that the executive keeps itself within the limits of law and does not
overstep the same.
But there has been a negative side of the concept of rule of law as well.
A grave defect in Diceys analysis is his insistence on the absence not
only of arbitrary but even of wide discretionary powers. The needs of
the modern government make wide discretionary power inescapable.
Perhaps the greatest defect of the concept has been its misplaced trust
in the efficacy of judicial control as a panacea for all evils, and
somewhat irrational attitude generated towards the French system.
If the rule of law hampered the recognition of administrative law in
England, the doctrine of separation of powers had an intimate impact
on the growth of administrative process and administrative law in the
United States. It has been characterized as the principal doctrinal
barrier to the development of administrative law in the U.S.A. The
doctrine of separation of powers is implict in the American
Constitution. It emphasizes the mutual exclusiveness of the three
organs of the government. The form of government in the U.S.A.,
characterised as the presidential, is based on the theory that there
should be separation between the executive and legislature.
Of course, the doctrine of separation of power does not apply rigorously
even in the United States and some exceptions to it are recognized in
the Constitution itself. For instance, a bill passed by the Congress may
be vetoed by the President, and to this extent, the President may be said
to be exercising legislative functions. Again, certain appointments of
high officials are to be approved by the Senate, and also the treaties
made by the president do not take effect until they are approved by the
Senate; to the extent, the Senate may be said to be exercising executive
functions. This exercise of some functions of one organ by the other is
justified on the basis of checks and balances, i.e. the functioning of one
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
4 of 41 10/22/2011 5:13 AM
organ is to be checked in some measures by the other.
The doctrine of separation has influenced, and has itself been
influenced by, the growth of administrative law. In the face of the new
demands on the government to solve many complex socio-economic
problems of the modern society, new institutions have been created and
new procedures evolved by which the doctrine of separation has been
largely diluted. But the character of administrative law itself has been
influenced and conditioned to some extent by this doctrine. The strict
separation theory was dented to some extent when the courts conceded
that legislative power could be conferred on the executive and thus
introduced the system of delegated legislation in the U.S.A., but,
because of the separation theory, courts have laid down that the
Congress cannot confer an unlimited amount of legislative power on an
administrative organ, and that it must itself lay down the policy which
the administration is to follow while making the rules.
In India, the doctrine of separation of power has not been accorded as
constitutional status. Apart from the directive principle laid down in
Article 50 which enjoins separation of judiciary from the executive, the
constitutional scheme does not embody any formalistic and dogmatic
division of powers.
In Ram Jawaya Kapur v. State of Punjab, in pursuance of the policy of
nationalizing text books used in schools in State, Punjab Government
issued an executive order acquiring the copyright in selected books from
authors and undertaking itself printing, publishing and sale of books.
Private publishing houses thus ousted from text-book business. This
order was challenged on the ground that executive power of State did
not extend to undertaking trading activities without a legislative
sanction. The Supreme Court observed, ordinarily the executive power
connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away. It is neither necessary
nor possible to give an exhaustive enumeration of kinds and categories
of executive functions. Article 73 of Constitution provides that the
executive power of Union shall extend to the matters with respect to
which parliament has power to make laws. Similarly Article 62 provides
for in case of a State Government. Neither of these articles contain any
definition as to what the executive function is and what activities would
come within its scope.
Indian Constitution has not indeed recognized the doctrine of
separation of powers in its absolute rigidity but the function of different
parts of government have been sufficiently differentiated and
consequently it can be very well said that our constitution does not
contemplate assumption by one organ or part of the State of functions
that essentially belong to another.
In Asif Hameed V. State of J&K, the selection to the MBBS course in the
two Governmental colleges of J&K has been set aside by High court on
the ground that the selection was not held in accordance with the
direction of the said court given in an earlier case Jyotshana Sharma V.
State of J&K. In that case the High Court directed the State government
to entrust the selection process of two medical colleges to a statutory
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
5 of 41 10/22/2011 5:13 AM
independent body which was to be free from executive influence. No
such body was constituted.
The primary issue, in this case, is whether the High court has the
competence to issue directions to the State Government to constitute
Statutory Body for selection and whether selection made by any other
authority is invalid on the ground alone.
The Supreme court observed that although the doctrine of separation of
powers hasnt been recognized under the Constitution, the
Constitution-makers have carefully defined the functions of various
organs of the State. Legislature, executive and judiciary have to function
within their own where demarcated under the Constitution. No organ
can usurp the functions assigned to another. The functioning of
democracy depends upon the strength and independence of each of its
organs. Legislature and executive have all the powers including that of
finance. Judiciary has power to ensure that the aforesaid two main
organs of State function within the constitutional limits. Judicial review
is a powerful weapon to restrain unconstitutional exercise of power by
legislature and executive. The only check on courts own exercise is
power is the self-imposed discipline of judicial restraint.
While exercising power of judicial review of administrative action, the
court is not an appellate authority. The Constitution does not permit the
court to direct or advise the executive in matters of policy or to
sermonize qua any matter which under the Constitution lies within the
sphere of legislature or executive, provided these authorities do not
transgress their constitutional limits or statutory powers.
It is entirely a matter for the executive branch of the Government to
decide whether or not to introduce any particular legislation. Of course,
any member of the legislature can also introduce legislation but the
court certainly cannot mandate the executive or any member of
legislature to initiate legislation, however necessary or desirable the
court may consider it to be. That is not a matter which is within the
sphere of the functions and duties allocated to the judiciary under the
Constitution.
When the Constitution gives power to the executive government to
lay-down policy and procedure for admission to medical colleges in the
State then the High Court has no authority to divest the executive of
that power. The State Government in its executive power, in the absence
of any law on the subject, is the competent authority to prescribe
method and procedure for admission to medical colleges by executive
instructions, but the High Court transgressed its self imposed limits in
issuing the directions for constituting statutory authority. However, the
selection procedure is always open to judicial review on the grounds of
unreasonableness, etc.
In conclusion, Doctrine of separation of Powers in todays context of
Liberalization, privatization and globalization cannot be interpreted to
mean either separation of powers or check and balance or principle of
restraint but community powers exercised in the spirit of cooperation
by various organs of the State in the best interest of the people.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
6 of 41 10/22/2011 5:13 AM
Delegated Legislation
Delegated legislation refers to all law making which takes place outside
the legislature and is generally expressed as rules, regulations, bye-laws,
orders, schemes, directions or notifications, etc. In other words when an
instrument of a legislative nature is made by an authority in exercise of
power delegated or conferred by the legislature it is called subordinate
legislation or delegated legislation. Parliament is obliged to delegate
very extensive law-making power over matters of detail and to content
itself with providing a framework of more or less permanent statutes.
Salmond defines delegated legislation as that which proceeds from any
authority other than the sovereign power and is, therefore, dependent
for its continued existence and validity on some superior or supreme
authority.
Scope of Delegated Legislation:-
1. Wide general powers: A standard argument for delegated legislation is
that it is necessary for cases where Parliament cannot attend to small
matters of detail.
2. Taxation: Even the tender subject of taxation has been invaded to a
considerable extent.
3. Power to vary Acts of Parliament: It is a quite possible for Parliament
to delegate a power to amend statutes. This used to be regarded as
incongruous, and the clause by which it was done was nicknamed the
Henry VIII clause.
4. Technicality: The legislators are often ignorant of legal and technical
points and leaves the law making power to the administrative agencies.
5. Emergency Powers: A modern society is many times faced with
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
7 of 41 10/22/2011 5:13 AM
occasion when there is sudden need of legislature action. The
legislature cant meet at short notice, thus executive need to have stand
by power.
Administrative rule-making or delegated legislation in India is
commonly expressed by the term statutory rules and orders.
Parliament follows no particular policy in choosing the forms of
delegated legislation, and there is a wide range of varieties and
nomenclature. The Delegated legislation can be classified under various
classes depending on the purpose to be achieved:
1. Title based classification: An Act may empower an authority to make
regulations, rules or bye-laws, to make orders, or to give directions.
There is scarcely a limit to the varieties of legislative provisions which
may exist under different names.
2. Discretion-based classification ( Conditional Legislation): Another
classification of administrative rule-making may be based on discretion
vested in rule-making authority. On the basis of discretion
administrative rule-making may be classified into subordinate and
contingent or conditional legislation.
3. Purpose-based classification: Another classification of administrative
rule-making would involve the consideration of delegated legislation in
accordance with the different purposes which it is made to serve. On
this basis the classification may be as: Enabling Act, Alteration Act,
Taxing Act, Supplementary Act, Classifying And Fixing Standard Acts,
Penalty For Violation Acts, etc.
4. Authority-based classification (Sub-Delegation): Another
classification of administrative rule-making is based on the position of
the authority making the rules. Sometimes the rule-making authority
delegates to itself or to some other subordinate authority a further
power to issue rules; such exercise of rule-making power is known as
sub-delegated legislation. Rule-making authority cannot delegate its
power unless the power of delegation is contained in the enabling Act.
5. Nature-based classification (Exceptional Delegation): Classification
of administrative rule-making may also be based on the nature and
extent of delegation. The committee on Ministers Powers distinguished
two types of parliamentary delegation:
a. Normal Delegation:
(i) Positive: Where the limits of delegation are clearly defined in the
enabling Act.
(ii) Negative: Where the power delegated does not include power to do
certain things.
b. Exceptional Delegation: Instances of exceptional delegation may be:
(i) Power to legislate on matters of principle.
(ii) Power to amend Acts of Parliament.
(iii) Power conferring such a wide discretion that it is almost impossible
to know the limits.
(iv) Power to make rules without being challenged in a court of law.
Such exceptional delegation is also known as Henry VIII clause to
indicate executive autocracy.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
8 of 41 10/22/2011 5:13 AM
The term constitutionality of administrative rule-making means the
permissible limits of the Constitution of any country within which the
legislature, which as the sole repository of law-making power, can
validly delegate rule-making power to other administrative agencies.
Today the necessity to aid the transition from laissez-faire to a welfare
and service State has led to the tremendous expansion of government
authority. The new role of the State can be fulfilled only through the use
of greater power in the hands of the government which is most suited to
carry out the social and economic tasks before the country. The task of
enhancing the power of the government to enable it to deal with the
problem of social and economic reconstruction has been accomplished
through the technique of delegation of legislative power to it. This
delegation of legislative power raises a natural question of its
constitutionality.
In England, Parliament is supreme and, therefore, unhampered by any
constitutional limitations, Parliament has been able to confer wide
legislative powers on the executive.
In the USA, the rule against delegation of legislative power is basically
based on the doctrine of separation of powers. In America the doctrine
of separation of powers has been raised to a constitutional status. The
U.S. Supreme Court has observed that the doctrine of separation of
powers has been considered to be an essential principle underlying the
Constitution and that the powers entrusted to one department should
be exercised exclusively by that department without encroaching upon
the powers of another. It is accepted that a rigid application of the
doctrine of separation of powers in neither desirable nor feasible in
view of the new demands on the executive. Therefore, in the USA,
courts have made a distinction between what may be termed as
legislative powers and the power to fill in the details. If the
delegation is of a regulatory nature, the court has upheld
constitutionality of the delegation of legislative power even in the
absence of any specified standard.
The question of permissible limits of the Constitution in India, within
which law-making power may be delegated can be studied in three
different periods:
1. When the Privy Council was the highest court of appeal: The Privy
Council was the highest court for appeal from Indian in constitutional
matters till 1949. During the period the Privy Council was the highest
court of appeal, the question of permissible limits of delegation
remained uncertain.
2. When Federal Court became the highest court of appeal: In a decision
given by Federal Court it was held that in India legislative powers
cannot be delegated.
3. When Supreme Court became the highest court of appeal: Here In re
Delhi Laws Act is said to be the Bible of delegated legislation. Seven
Judges heard the case and produced seven separate judgments. The case
was argued from two extreme positions. It was argued that the power of
legislation carries with it the power to delegate and unless the
legislature has completely abdicated or effaced itself, there is no
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
9 of 41 10/22/2011 5:13 AM
restriction on delegation of legislative powers. The learned Counsel
built his arguments on the theory of separation of powers and tried to
prove before the court that there is an implied prohibition against
delegation of legislative powers. The Supreme Court took the via media
and held:
(1) Doctrine of separation of powers is not a part of the Indian
Constitution.
(2) Indian Parliament was never considered an agent of anybody, and
therefore the doctrine of delegates non potest delegare has no
application.
(3) Parliament cannot abdicate or efface itself by creating a parallel
legislative body.
(4) Power of delegation is ancillary to the power of legislation.
(5) The limitation upon delegation of power is that the legislature can
not part with its essential legislative power that has been expressly
vested in it by the Constitution. Essential legislative power means
laying down the policy of the law and enacting that policy into a binding
rule of conduct.
Even though seven judges gave seven separate judgments but it was not
be correct to hold that no principle was clearly laid down by the majority
of judges. Anyone who surveys the whole case comes to an inescapable
conclusion that there is a similarity in the view of the judges at least on
three points: (i) that the legislature cannot give that quantity and
quality of law which is required for the functioning of a modern State,
hence delegation is necessity; (ii) that in view of a written Constitution
the power of delegation cannot be unlimited; and (iii) that the power to
repeal a law or to modify legislative policy cannot be delegated because
these are essential legislative functions which cannot be delegated. The
Supreme Court has now made it abundantly clear that the power of
delegation is a constituent element of legislative power as a whole
under Article 245 of the Constitution and other relative Articles.
It is now firmly established that excessive delegation of legislative
power is unconstitutional. The legislature must first discharge its
essential legislative functions (laying down the policy of the law and
enacting that policy into a binding rule of conduct) and then can
delegate ancillary or subordinate legislative functions which are
generally termed as power to fill up details.
Whether a particular legislation suffers from excessive delegation is a
question to be decided with reference to certain factors which may
include, (i) subject matter of the law, (ii) provisions of the statute
including its preamble, (iii) scheme of the law, (iv) factual and
circumstantial background in which law is enacted.
The opinion of the Supreme Court is to be analysed in order to
determine the extent of permissible delegation. In Rajnarain Singh V.
Chairman, Patna Administration Committee, Section 3(1)(f) of the
impugned Act empowered the Patna local administration to select any
provision of the Bengal Municipality Act and apply it to Patna area with
such restrictions and modifications as the government may think fit.
The government picked up Section 104 and after modification applied it
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
10 of 41 10/22/2011 5:13 AM
to the town of Patna. The Supreme Court declared the delegation ultra
vires on the ground that the power to pick out a section for application
to another area amounts to delegating the power to change the policy of
the Act which is an essential legislative power, and hence cannot be
delegated.
During the colonial days in India, modest delegation of legislative power
was upheld by the courts under the rubric of conditional legislation.
The idea behind this term is that the legislature makes the law which is
full and complete in all respects, but it is not brought into operation
immediately. The enforcement of the law is made dependent upon the
fulfillment of a condition, and what is delegated to the outside agency is
the authority to determine, by exercising its own judgment, whether or
not the condition has been fulfilled. Thus in conditional legislation, the
law is there but its taking effect is made to depend upon determination
of some fact or condition by an outside agency.
In Lachmi Narain V. India, the Supreme Court has itself stated that no
useful purpose is served by calling a power conferred by a statute as
conditional legislation instead of delegated legislation. There is no
difference between them in principle, for conditional legislation like
delegated legislation has a content, howsoever small and restricted, of
the law-making power itself, and in neither case can the person be
entrusted with the power act beyond the limits which circumscribe the
power.
In course of time, through a series of decisions, the Supreme Court has
confirmed the principle that the legislature can delegate its legislative
power subject to its laying down legal principles and provide standards
for the guidance of the delegate to promulgate delegated legislation,
otherwise the law will be bad on account of excessive delegation.
Whatever may be the test to determine the constitutionality of
delegated legislation, the fact remains that due to the compulsions of
modern administration courts have allowed extensive delegation of
legislative powers, especially in the area of tax and welfare legislation.
Validation of extensive delegated legislation thus continues unabated in
India on ground of administrative necessity. However, Prof. Baxi is of
the view that in India no a priori ground compelling the conclusion that
such untrammelled powers of executive law-making are essential for
the attainment of the goals of the Constitution or for attaining
administrative efficiency, although this is offered, as the justification
for such powers.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
11 of 41 10/22/2011 5:13 AM
Administrative Discretion
Functions dischargeable by the administration may either be ministerial
or discretionary. A ministerial function is one where the relevant law
prescribes the duty to be performed by the concerned authority in
certain and specific terms leaving nothing to the discretion or judgment
of the authority. Discretion implies power to make a choice between
alternative courses of action.
In any intensive form of government, the government cannot function
without the exercise of some discretion by the officials. It is necessary
not only for the individualization of the administrative power but also
because it is humanly impossible to lay down a rule for every
conceivable eventuality in the complex art of modern government. But
it is equally true that absolute discretion is a ruthless master. It is more
destructive of freedom than any of mans other inventions. Therefore,
there has been a constant conflict between the claims of the
administration to an absolute discretion and the claims of subjects to a
reasonable exercise of it. Discretionary power by itself is not pure evil
but gives much room for misuse.
Discretion is the all-pervading phenomenon of modern age. Discretion
is conferred in the area of rule-making or delegated legislation, e.g.,
when the statutory formula says that the government may make rules
which it thinks expedient to carry out the purposes of the Act, in effect,
a broad discretion and choice are being conferred on the government to
make rules. The legislature hardly gives any guidance as to what rules
are to be made. Discretion is conferred on adjudicatory and
administrative authorities on a liberal basis, that is, the power is given
to apply a vague statutory standard from case to case.
The need for discretion arises because of the necessity of individualize
the exercise of power by the administration. There are at least four good
reasons for conferring discretion on administrative authorities:
(a) The present-day problems are very complex and varying nature and
it is difficult to comprehend them all within the scope of general rules.
(b) Most of the problems are new. Lack of any previous experience to
deal with them does not warrant the adoption of general rules.
(c) It is not always possible to foresee each and every problem.
(d) Circumstances differ from case to case so that applying one rule
mechanically to all cases may itself result in injustice.
Legislation conferring powers on the executive is usually drafted I broad
and general terms; it leaves a large area of choice to he administrator to
apply the law to actual, specific, and factual situations and does not
specify clearly the conditions and circumstances subject to which, and
the norms with reference to which, the executive must use the power
conferred on it. Absolute power corrupts absolutely and, therefore,
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
12 of 41 10/22/2011 5:13 AM
broad powers present possibilities of being misused and exercised in an
arbitrary manner.
There are two ways to control discretionary powers, One is the
application of the procedural safeguard of natural justice; and the other
is the application of the doctrine of excessive delegation in relation to
delegated legislation.
The pattern of judicial review in this area effects reconciliation of two
conflicting values. The court is not an appellate forum where the
correctness of the order of Government could be canvassed and, indeed
it has no jurisdiction to substitute its own view. However, since the
legislature cannot have intended that the executive be the final judge of
the extent of its own powers, the courts have come into picture and
deep administration within the confines of the law.
The courts are concerned with legality rather than with the merits of an
administrative order. They would not go into the question whether
there was sufficient or adequate or satisfactory material for the
authority to form its opinion.
Though courts in India have developed a few effective parameters for
the proper exercise of discretion, the conspectus of judicial behaviour
still remains halting, variegated and residual and lacks the activism of
the American Courts. Judicial Control mechanism of administrative
discretion is exercised at two states:
1. Control at the stage of delegation of discretion:
The court exercises control over delegation of discretionary powers to
the administration by adjudicating upon the constitutionality of the law
under which such powers are delegated with reference to the
fundamental rights. The Indian Constitution guarantees certain
Fundamental Rights to the people which constitute a limitation on the
legislative an executive powers of the government, and, consequently,
these rights provide an additional dimension of control over
administrative discretion. The courts in India, in addition to controlling
the exercise of administrative discretion on the same grounds as the
courts in England, also use Fundamental Rights to control discretionary
powers of administrative authorities in two ways:
(1) The courts may declare a statute unconstitutional if it seeks to
confer too large a discretion on the administration. Fundamental Rights
in India thus afford a basis to the courts to control the bestowal of
discretion to some extent, by testing the validity of law in question on
the touchstone of Fundamental rights. For this purpose, the courts can
take into account both procedural and substantive aspects of the law in
question.
(2) The courts may control the actual exercise of discretion under a
statute by invoking certain Fundamental Rights, especially art. 14.
The courts have also developed the doctrine of excessive delegation of
discretionary power by invoking certain Fundamental Rights.
Under Art. 14, courts can control administrative discretion at two levels,
viz., (1) at the stage of conferment of discretion, by examining the law in
question and holding the same to be unconstitutional if it confers broad
discretion without laying down any policy or principle to regulate its
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
13 of 41 10/22/2011 5:13 AM
exercise; (2) at the state of application of law and use of its discretion by
the administration in a specific factual situation, by examining the
administrative action with a view to seeking whether it conforms with
the legislative policy enunciated in the relevant statute.
The general principle is that the conferment of an arbitrary, sweeping,
uncontrolled discretion on an administrative authority violates Art. 14
as it creates the danger of discrimination among those similarly situated
which is subversive of the equality doctrine enshrined in Art. 14.
A regulation made by Air India, fixed the normal age of retirement of air
hostesses at 35 years but authorised the managing director to extend
the same to 45 years at his option subject to other conditions being
satisfied. The Supreme Court ruled in Air India V. Nergesh Meerza that
the regulation armed the managing director with uncanalized and
unguided discretion to extend favour of one air hostess and not in
favour of the other and this might result in discrimination. Apart from
the absence of guidelines in the regulations, there was no procedural
safeguard, e.g., requiring the managing director to record reasons for
refusing to extend the retirement period and appeal to a higher
authority against his order. The matter of extension was entirely at his
mercy and sweet will.
In State of West Bengal V. Anwar Ali Sarkar, a law enacted by the West
Bengal legislature permitting setting up of special courts for the
speedier trial of such offences or cases or classes of cases as the State
government may direct by a general or special order. These courts were
to follow a procedure less advantageous to the accused in defending
himself than the normal criminal procedure followed by ordinary
criminal courts. The Act was held invalid as it made no reasonable
classification: It laid down no yardstick or measure for the grouping
either or persons or of cases or of offences triable by special courts so
as to distinguish them from other outside the purview of the Act. The
government was given the power to pick out a case of a person and hand
it over to the special tribunal while leaving the case of another person
similarly situated to be tried under the ordinary criminal procedure.
Vesting of such an unregulated discretion in the executive was not
justified. The necessity of speedier trial was held to be too vague,
uncertain and indefinite criterion to form the basis of a valid and
reasonable classification.
Art. 19(1) guarantee seven freedoms to the citizens of India. None of the
freedoms guaranteed by Art. 19(1) can be curtailed merely by an
executive fiat; it is necessary to have a law to back the administrative
action. It is for the courts to decide whether the restriction is reasonable
or not, and, for this purpose, the courts take into consideration both the
substantive as well as procedural aspects of the law in question. Lastly,
a restriction to be valid must have a rational relation with any of the
purposes for which the restriction can be imposed under the relevant
constitutional provision.
The question as to how much discretion can be conferred on the
executive to control and regulate trade and commerce has been raised in
a large number of cases. The general principle in this connection is that
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
14 of 41 10/22/2011 5:13 AM
the power conferred on the executive should not be arbitrary,
unregulated by any rule or principle, and that it should not be left
entirely to the discretion of any authority to do anything it likes without
any check or control by any higher authority. A law or order which
confers arbitrary and uncontrolled power upon the executive in the
matter of regulating trade or business in normally available
commodities cannot be held to be unreasonable.
Dwarka Pd. Laxmi Narain V. State of U.P., is the first leading case which
laid down the proposition that a law conferring arbitrary and unguided
power on the administrative authorities will be invalid under Art. 19(1).
The case involved the U.P.Coal Control Order issued under the Essential
Supplies (Temporary Powers) Act. The order required a licence for
stocking, selling, storing or utilising coal. Further it authorized the coal
controller to exempt any person from the licensing provisions. Another
clause authorized the licensing authority to grant, refuse to grant, renew
or refuse to renew, suspend, cancel revoke or modify any license for
reasons to be recorded. The court held Cl. 3(1) as quite unexceptionable,
for it was reasonable to regulate sale of essential commodities through
licensed vendors to ensure their equitable distribution and availability
at fair prices. Clause was held invalid because the grounds on which an
exemption could be granted were nowhere mentioned; the controller
had been given an unrestricted power to make exemptions, and there
was no check on him and no way to obtain redress if he acted arbitrarily
or from improper motives. No rules were framed to guide his discretion
and the matter was committed to the unrestrained will of a single
individual. The reasons required to be recorded were only for the
subjective satisfaction of the licensing authority and not for furnishing
any remedy to the aggrieved person.
In A.N. Parasuraman V. State of Tamil Nadu, Sec. 3 of the T.N. Private
Education Institutions (Regulation) Act made it mandatory for the
private educational institutions to obtain permission of the competent
authority for running them. The validity of the Act was challenged on
the grounds that it did not lay down any guidelines for the exercise of
the power by the delegated authority as a result of which the authority
was in a position to act according to his whims. The Act did not indicate
conditions for the exercise of power by the competent authority and was
therefore discriminatory and arbitrary. It was held that the Act
conferred unguided power on the authority and was therefore ultra
vires and illegal. The purpose of the Act was to regulate private
educational institutions but it did not give any idea as to the manner in
which the control over the institutions could be exercised. Section 6 of
the Acts provides for the grant of permission and Section 7 empowered
the competent authority to cancel the permission in certain
circumstances. The Court observed that Sec. 6 does not give any idea as
to the conditions which it has to fulfil before it can apply for permission
under the Act. No tests are indicated for refusing permission or
canceling under Sec. 7 of an already granted permission. The procedural
safeguard provided under Sec. 6 doesnt by itself protect the applicant
from discriminatory treatment.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
15 of 41 10/22/2011 5:13 AM
In Asif Hameed V. State of J & K, the selection of medical colleges of J &
K had been set aside by the High court on the gound that the selection
was not held in accordance with the directions of the said court given in
an earlier case Jyotshna Sharma V. State of J & K. In that case the High
Court directed the State Government to entrust the selection process of
two medical colleges to a statutory independent body which was to be
free from executive influence. No such body was constituted.
The Supreme Court held that while exercising power of judicial review
of administrative action, the court is not an appellate authority. The
Constitution does not permit the court to direct or advice the executive
in matter of policy or to sermonize qua any matter which under the
Constitution lies within the sphere of legislature or executive, provided
these authorities do not transgress their constitutional limits or
statutory powers. It is entirely a matter for the executive branch of the
Government to decide whether or not to introduce any particular
legislation.
2. Control at the stage of exercise of discretion:
In India, unlike the USA, there is no Administrative Procedure Act
providing for judicial review on the exercise of administrative
discretion. Therefore, the power of judicial review arises from the
constitutional configuration of courts. Courts in India have always held
the view that judge-proof discretion is a negation of the rule of law.
A discretionary power is not completely discretionary in the sense of
being entirely uncontrolled. The courts have rejected the concept of an
absolute and unfettered statutory discretion. Even when a statute uses
words so as to confer ex facie an absolute discretion on the
administrative authority concerned, the discretion can never be
regarded as unfettered. Primarily, the courts seek to ensure that
discretion is exercised by the authority concerned according to law. This
is the principle of Ultra vires. The judicial power of interference with
the exercise of administrative power on the ground of an authority
acting contrary to law has been found to have enough flexibility to
check abuse of discretion in several directions.
All the principles of judicial review of discretionary powers fall into two
major classifications:-
(1) abuse of power by the authority;
(2) non-exercise of power.
In the first classification fall such categories as: exercise of power mala
fide or in bad faith, or for an improper purpose, or after taking into
account irrelevant or extraneous considerations, or after leaving out of
account relevant considerations, or in a colourable manner or
unreasonably. In the second classification fall such grounds as: acting
under dictation, acting mechanically, or fettering discretion.
The doctrine of ultra vires takes in an extended sense. Offending acts
are condemned simply for the reason that they are unauthorized. The
courts proceed on the assumption that Parliament cannot have intended
to authorize unreasonable action and, accordingly, it is ultra vires and
void.
It would be a fallacy to assume that in considering the legality of an
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
16 of 41 10/22/2011 5:13 AM
administrative order courts would only consider formal grounds or
considerations mentioned by the concerned body and ignore completely
the background facts and grounds behind the decision. Though the
courts do not consider the sufficiency or adequacy of the facts, yet they
may examine the facts to find out their relevance to.
In Vice Chancellor V. S.K. Ghosh, the syndicate of a university cancelled
the examination in a subject and directed that another examination be
held as it was satisfied that there had been a leak age of questions. The
High Court while examining the facts for itself concluded that even if
the evidence is sufficient to indicate a possibility of some leakage,
there was no justification for the syndicate to pass such a drastic
resolution in the absence of proof of the quantum and the amplitude of
leakage. On appeal the Supreme Court reversed the decision and
emphasized that the High Court could not constitute itself into a court
of appeal from the university. It was for the High Court to require proof
of the quantum and amplitude of leakage.
Abuse/Misuse of Discretion:
Mala Fides
Mala fides or bad faith means dishonest intention or corrupt motive.
Even though it may be difficult to determine whether or not the
authority has exceeded its powers in a particular case because of the
broad terms in which the statute in question may have conferred power
on it, the administrative action may, nevertheless, be declared bad if the
motivation behind the action is not honest.
In State of Punjab V. Gurdial Singh, the court struck down the land
acquisition proceeding for acquiring the land of the petitioners for a
mandi on account of mala fides. The fact that the acquisition
proceedings were started at the behest of one of the respondents who
was a minister in the government to satisfy his personal vendetta
against the landholders. The court concluded that there was malice on
the part of the government in acquiring the land of the petitioners.
In G Sadanandan V. State of Kerala, the petitioner, a kerosene dealer,
was detained with a view to prevent him from acting in a manner
prejudicial to the maintenance of supplies and services essential to the
life of the community. The petitioner alleged that his detention was
unjustified as the moving spirit behind his detention was the DSP and
that he had made false reports against the petitioner so that he could be
eliminated as a wholesale kerosene dealer, and the relatives of the
concerned officer might benefit by obtaining the distributorship. After
considering all the material and relevant facts, the Supreme Court
declared the order of detention to be clearly and plainly mala fide.
Improper Purpose:
If a statute confers power for one purpose, its use for a different
purpose will not be regarded as a valid exercise of the power and the
same may be quashed. Improper purpose is a broader than mala fides,
for whereas the latter denotes a personal spite or malice, the former
have no such element.
Irrelevant considerations:
If authority concerned pays attention to, or takes into account wholly
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
17 of 41 10/22/2011 5:13 AM
irrelevant or extraneous circumstances, events or matters then the
administrative action is ultra vires and will be quashed. In State of
Bombay V. K.P. Krishnan, the government refused to refer an industrial
dispute with regard to the payment of bonus for a certain year to a
tribunal for adjudication for the reason that the work-men resorted to
a go slow during the year. The court held that the reason given by the
government had acted in a punitive spirit and this was contrary to the
objectives of the statute which was to investigate and settle disputes. A
claim for bonus is based on the consideration that by their contribution
to the profits of the employer the employees are entitled to claim a
share in the said profits, and so any punitive action taken by the
Government by refusing to refer for adjudication an industrial dispute
for bonus would, in our opinion, be wholly inconsistent with the object
of the Act.
Leaving out relevant considerations
If in exercising its discretionary power, an administrative authority
ignores relevant considerations, its action will be invalid. An authority
must take into account the considerations which a statute prescribes
expressly or impliedly. In case the statute does not prescribe any
considerations but confers power in a general way, the court may still
imply some relevant considerations for the exercise of the power and
quash an order because the concerned authority did not take these into
account.
In Ranjit Singh V. Union of India, the petitioner had been carrying on
the business of manufacturing guns for a number of years. His quota to
manufacture guns was considerably reduced by the government. The
justification given was that the Industrial Policy Resolution of 1956
envisaged a monopoly in the Central Government for manufacturing
arms and ammunitions. The court said: Any curtailment of quota must
necessarily proceed on the basis of reason and relevance. The court
found that the said Resolution contained a specific commitment to
permit the continuance of existing factories. In determining the specific
quota of a manufacturing unit, the relevant considerations were the
production capacity of the factory, the quality of guns produced and the
economic viability of the unit on the one hand, and the requirement of
current administrative policy pertinent to the maintenance of law and
order and internal security on the other. These factors were impliedly
read by the court into the statute. Since the government hade left out
these relevant considerations, its action was held to be arbitrary.
Non-Application of Mind:
Where discretion has been conferred on an authority, it is expected to
exercise the same by applying its mind to the facts and circumstances of
the case in hand, otherwise its action or decision will be bad, and the
authority is deemed to have failed to exercise its discretion. The courts
sometimes say that the authority has failed to exercise its mind when it
does not take into account a vital facts or matter.
In Shrilekha Vidyarthi V. State of U.P., the validity of U.P. Government
manual under which the Government had terminated the appointment
of all District Government Counsels without assigning any reason was
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
18 of 41 10/22/2011 5:13 AM
challenged as violative of Art. 14. It was held that an arbitrary action
against persons holding posts of public nature was sufficient to attract
the power of judicial review. Removal en bloc of all District Government
counsels in the State was held to be arbitrary and violative of Art. 14.
The appointment of D.G.C. by the State government is not merely a
professional engagement like that between a private client and his
lawyer nor purely contractual. A public element is attached to the
office or post. There is an element of continuity of the appointment
unless the appointee is found to be unsuitable. The expression without
assigning any cause merely means without communicating any cause
to the appointee and not to be equated with without existence of any
cause. The Supreme Court observed, that every State action must not
be susceptible to the vice of arbitrariness which is the crux of Art. 14
and basis of the rule of law.
Non application of mind to individual cases before issuing a general
circular terminating all such appointment throughout the State of U.P.
is itself eloquent of the arbitrariness writ large on the face of the
circular. It is obvious that issuance of the impugned circular was not
governed by any rule but by the whim or fancy of some one totally
unaware of the requirements of rule of law.
Acting mechanically:
An authority cannot be said to exercise statutory discretion when it
passes an order mechanically and without applying its mind to the facts
and circumstances of the case. This may happen either because the
authority has taken one view of its power, or because of inertia or
laziness, or because of its reliance on the subordinates.
It was held in Nandlal V. Bar Council of Gujarat, that in forwarding a
case to the disciplinary committee, the council cannot act mechanically;
it must apply its mind to find out whether there is any reason to believe
that any advocate has been guilty of misconduct. Only when the bar
council has a reasonable belief that there is a prima facie case of
misconduct, a disciplinary committee is to be entrusted with inquiry
against the concerned advocates. In the instant case, the reference made
by the council to its disciplinary committee was held bad as the council
had not applied its mind to the complaint and found that there was a
prima facie case to go to the disciplinary committee.
In G. Sadanandan V. State of Kerala, the Supreme court commented
adversely on the causal manner in which the detaining authority had
acted in passing the order. The order was quashed with a strong
reminder to the administration that it should be more careful in
exercising its powers.
Acting under dictation:
A situation of the authority not exercising discretion arises when the
authority does not consider the matter itself but exercises its discretion
under the dictation of a superior authority. This, in law, would amount
to non-exercise of its power by the authority and will be bad. Although
the authority purports to act itself, yet, in effect, it is not so as it does
not take the action in question in its own judgment, as is intended by
the statute.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
19 of 41 10/22/2011 5:13 AM
In Commissioner of Police V. Gordhandas Bhanji, the Bombay Police
Act, granted authority to Commissioner of Police to grant licences for
cinema theatres. The Commissioner granted a licence to the respondent
on the recommendation of an advisory committee but later cancelled it
at the direction of the State government. The court held the cancellation
of the order bad as it had come from the government and the
commissioner merely acted as a transmitting agent.
Imposing fetters on the exercise of discretion:
A case of non-application of mind also arises when the authority having
discretion imposes fetters on its discretion by announcing rules of
policy to be applied by it rigidly to all cases coming before it for
decision. When a statute confers power on an authority to apply a
standard it is expected of it to apply it from case to case, and not to
fetter its discretion by declaration of rules or policy to be followed by it
uniformly in all cases. If, instead, it lays down a general rule to be
applicable to each and every case, then it is preventing itself from
exercising its mind according to the circumstances of each case and this
amounts to going against what the statute had intended the authority to
do.
In Shri Rama Sugar Industries Ltd. V. State of A.P., A.P. Sugarcane Act
gave power to the administrative authority to exempt from payment of
tax any new factory which has substantially expanded. The government
framed a policy granting exemption only to factories in the co-operative
sector. The Supreme Court, negativing the contention that the adoption
of this policy has fettered the exercise of discretion, held that a body
endowed with a statutory discretion may legitimately adopt general
rules or principles to guide itself in the exercise of its discretion
provided such rules are not arbitrary and not opposed to the aims and
objectives of the Act. The Court further remarked that by adopting such
rules the agency must not disable itself from exercising genuine
discretion in individual cases.
It has been firmly established that the discretionary powers given to the
government or quasi-governmental authorities must be hedged by
policy, standards, procedural safe guards or guidelines, failing which the
exercise of discretion and its delegation may be quashed by the courts.
This principle has been reiterated in many cases. The courts have also
insisted that before the exercise of discretion, the administrative
authority must also frame rules for the proper exercise of the discretion.
Natural Justice
Natural Justice represents higher procedural principles developed by
judges which every administrative agency must follow in taking any
decision adversely affecting the rights of a private individual. The basis
of the principle of natural justice is rule of law. Natural Justice contents
yield to change with exigencies of different situations and, therefore, do
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
20 of 41 10/22/2011 5:13 AM
not apply in the same manner to situations which are not alike. Though
the Constitution of India does not use the expression natural justice,
the concept of natural justice divested of all its metaphysical and
theological trappings pervades the whole scheme of the Constitution.
The concept of fair hearing or natural justice is elastic and is not
susceptible of precise definition. The concept entails two ideas:
(i) Nemo Judex in re sua, i.e. the authority deciding the m atter should
be free from bias; and (ii) audi alteram partem, i.e. a person affected by
a decision has a right to be heard.
The maxim nemo judex in re sua literally means that a man should not
be a judge in his own cause, i.e. a judge must be impartial. This is
known as the rule against bias. That bias disqualifies an individual from
acting as judge flows from two principles: (1) No one should be a Judge
in his own cause; and (2) Justice must not only be done but seen to be
done. Judge has to be impartial and neutral and to be in a position to
apply his mind objectively to the dispute before him.
Bias means an operative prejudice, whether conscious or unconscious,
in relation to a party or issue. Bias may be generally defined as partiality
or preference which is not founded on reason and is actuated by
self-interest-whether pecuniary or personal. Therefore, the rule against
bias strikes against those factors which may improperly influence a
judge in arriving at a decision in any particular case. A predisposition to
decide for or against one party without regard to the merit of the case is
bias. A person cannot take an objective decision in a case in which he
has an interest. Therefore, the maxim that a person cannot be made a
judge in his own cause. This rule of disqualification is applied to avoid
that no man be a judge in his own cause and to ensure that the justice
should not only be done but should manifestly and undoubtedly be seen
to be done. The minimal requirement of natural justice is that the
authority must be composed of impartial persons acting fairly, without
prejudice and bias.
The Principle nemo juded in causa sua will not apply where the
authority has no personal lis with the person concerned. Every kind of
preference is not sufficient to vitiate an administrative action. If a
preference is rational and unaccompanied by considerations of personal
interest, pecuniary or otherwise, it would not vitiate a decision. Bias
manifests itself variously and may affect a decision in a variety of ways.
Bias is usually of three kinds:
1. Pecuniary Bias:- A direct pecuniary interest, howsoever small or
insignificant, will disqualify a person from acting as a Judge.
2. Personal Bias:- Personal bias arises from a certain relationship
equation between the deciding authority and the parties which incline
him unfavourably or otherwise on the side of one of the parties before
him. When the adjudicator is a relation of one of the parties, or when a
person sits on the selection board to select persons for a post for which
he himself is a candidate, even though he may not participate in its
deliberations when his name is considered.
Real Likelihood of Bias/Reasonable Suspicion of Bias:- However, in
order to challenge administrative action successfully on the ground of
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
21 of 41 10/22/2011 5:13 AM
personal bias, it is essential to prove that there is a reasonable
suspicion of bias or a real likelihood of bias. The reasonable
suspicion test looks mainly to outward appearance, and the real
likelihood test focuses on the courts own revaluation of possibilities.
What the courts see is whether there is a reasonable ground of believing
that the deciding officer was likely to have been biased. In deciding the
question of bias judges have to take into consideration the human
possibilities and the ordinary course of human conduct.
In Kumaon Mandal Vikas Nigam V. Girja Shankar Pant, the Supreme
Court stated that the test of real likelihood and reasonable suspicion
are really inconsistent with each other. We think that the reviewing
authority must make a determinate on the basis of the whole evidence
before it, whether a reasonable man would in the circumstances infer
that there is real likelihood of bias. The Court must look at the
impression which other people have. These follows from the principle
justice must not only be done but seen to be done. If right minded
persons would think that there is real likelihood of bias on the part of
an inquiry officer, he must not conduct the enquiry; nevertheless, there
must be a real likelihood of bias. Surmise or conjecture would not be
enough. There must exist circumstances from which reasonable men
would think it probable or likely that the inquiring officer will be
prejudiced. If a reasonable man would think on the basis of the existing
circumstances that he is likely to be prejudiced, that is sufficient to
quash the decision.
The test is not what actually happened but the substantial possibility of
that which appears to have happened. Lord Denning, Justice must be
rooted in confidence; and confidence is destroyed when right minded
people go away thinking: The judge was biased. It was on this ground
that in Metropolitian Properties Co. Ltd. V. Lannon the Court held that
Lannon was disqualified from sitting as Chairman of a Rent Assessment
Committee because his father was a tenant who had a case pending
against that company, even though it was acknowledged that there was
no actual bias and no want of good faith on the part of Lannon.
No Uniform cut and dried formula can be laid down to determine real
likelihood of bias. Each case is to be determined on the basis of its facts
and circumstances. In A.K. Kraipak V. Union of India, Naquishbund,
who was the acting Chief Conservator of Forests, was a member of the
Selection Board and was also a candidate for selection to the all-India
cadre of the Forest Service. Though he did not take part in the
deliberations of the Board when his name was considered and approved,
the Supreme Court held that there was a real likelihood of bias, for the
mere presence of the candidate on the selection board may adversely
influence the judgment of the other members.
In Ashok Kr. Yadav V. State of Haryana, the Supreme Court emphasized
that when a selection committee is constituted for the purpose of
selecting candidates on merits, and one of its members happens to be
closely related to a candidate appearing for the selection, such member
should withdraw not only from participation in the interview of the
candidate related to him but altogether from the entire selection
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
22 of 41 10/22/2011 5:13 AM
process, otherwise all the selection process. But, the Court has refused
to apply this strict rule to selections by a public service commission and
has ruled that it will be enough if the concerned member desists from
interviewing his relation without withdrawing himself from the entire
selection process. The reason for this judicial stance is practical
necessity. A public service commission is a constitutional body. If a
member withdraws from the selection, no other person save a member
can be substituted in his place. If no other member is available to take
the place of such member, the functioning of the commission may be
affected.
3. Subject matter bias:- Those cases fall within this category where the
deciding officer is directly, or otherwise, involved in the subject-matter
of the case. Here again mere involvement would not vitiate the
administrative action unless there is a real likelihood of bias.
The problem of departmental bias is something which is inherent in the
administrative process, and if it is not effectively checked, it may negate
the very concept of fairness in the administrative proceeding.
The question of departmental bias was considered by the Supreme
Court in Gullapalli Nageswara Rao V. APSRTC. In this case, the
petitioner challenged the order of the government nationalizing road
transport. One of the grounds for challenge was that the Secretary of the
Transport Department who gave the hearing was biased, being the
person who initiated the scheme and also being the head of the
department whose responsibility it was to execute it. The court quashed
the order on the ground that, under the circumstances, the Secretary
was biased, and hence no fair hearing could be expected.
Therefore, the Act was amended and the function of hearing the
objection was given over to the minister concerned. The decision of the
government was again challenged by G.Nageswara Rao on the ground of
departmental bias because the minister was the head of the department
concerned which initiated the scheme and was also ultimately
responsible for its execution. However, on this occasion the Supreme
Court rejected the challenge on the ground that the minister was not a
part of the department in the same manner as the Secretary was. The
reasoning of the court is not very convincing perhaps because, as
observed earlier, departmental bias is something which is inherent in
the administrative process.
Law is clear on the point that in cases classified as quasi-judicial there
is a duty to act judicially, i.e. to follow the principles of natural justice
in full, but in cases which are classified as administrative there is only
a duty to act fairly which simply means that the administrative
authority must act justly and fairly and not arbitrarily or capriciously.
The basic purpose behind developing the fairness doctrine within the
area of administrative or executive functions of the administration
where principles of natural justice are not attracted is to reconcile
fairness to the individual with the flexibility of administrative
action. It is an attempt over-judicialization of administrative process.
Therefore, where an administrative authority is not exercising quasi-
judicial powers and as such there is no duty to act judicially because the
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
23 of 41 10/22/2011 5:13 AM
principles of natural justice are not attracted in such cases. Court may
still insist on a duty to act fairly. As both the doctrines operates in
different areas of administrative action, so there is no chance of any
conflict.
In A.K. Kriapak V. Union of India, it was said that the dividing line
between an administrative power and a quasi-judicial power is quite
thin and is being gradually obliterated. In a Welfare State like ours it is
inevitable that the jurisdiction of the administrative bodies is increasing
at a rapid rate. The concept of rule of law would lose its validity if the
instrumentalities of the State are not charged with the duty of
discharging their functions in a fair and just manner. The requirement
of acting judicially in essence is nothing but a requirement to act justly
and fairly and not arbitrarily or capriciously. The procedures which are
considered inherent in the exercise of a judicial power are merely those
which facilitate if not ensure a just and fair decision. In recent years the
concept of quasi-judicial power has been undergoing a radical change.
What was considered as an administrative power some years back is
now being considered as a quasi judicial power.
Further it was said that the aim of the rules of natural justice is to
secure justice or to put it negatively to prevent miscarriage of justice.
Enquiries which were considered administrative at one time are now
being considered as quasi-judicial in character. Arriving at a just
decision is the aim of both quasi-judicial enquiries as well as
administrative enquiries. Any in-just decision in an administrative
enquiry may have more far reaching effect than the decision in a quasi-
judicial enquiry.
Speaking Order
(Reasoned Decision)
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
24 of 41 10/22/2011 5:13 AM
In India, in the absence of any particular statutory requirement, there is
no general requirement for administrative agencies to give reasons for
their decisions. However, if the statute under which the agency is
functioning requires reasoned decision, courts consider it mandatory of
the administrative agency to give reasons which should not be merely
rubber-stamp reasons but a brief, clear statement providing the link
between the material on which certain conclusions are based and the
actual conclusion.
In cases where the statute does not provide for reasoned decisions,
courts in India are still in the process of developing workable
parameters between the claims of individual justice and administrative
flexibility. In case of legislative silence a reasoned decision may be a
constitutional requirement.
Reasons are the link between the order and the mind of the maker.
Reasoned decisions also involve a question of procedural fairness. A
law which allows any administrative authority to take a decision
affecting the rights of the people without assigning any reason cannot
be accepted as laying down a procedure which is fair, just and
reasonable and hence would be violative of Article 14 and 21.
The implied requirement of reasons is the foundation on which the
whole scheme of judicial review under the Indian Constitution is based.
Article 32, 136, 226 and 227 provide for judicial review of administrative
action. The decisions of administrative agencies unaccompanied by
reasons will have the effect of whittling down the efficacy of these
constitutional provisions. A statute shall always be deemed to imply
reasons to be given in cases of quasi-judicial decisions where it also
provides for appeal for revision of such decisions.
In S.N. Mukherjee V. Union of India, the Supreme Court observed that
unless the requirement of recording of reasons has been dispensed
with, either expressly or by necessary implications, an administrative
authority exercising judicial or quasi-judicial functions must record
reasons in support of its decision because it facilitates the exercise of
appellate or revisional powers, acts as a deterrent against the arbitrary
exercise of power and satisfies the party against whom the order is
made.
In Som Dutt V. Union of India, it was contended before this Supreme
Court that the order of the Chief of Army Staff confirming the
proceedings, of the Court Martial under Section 164 of the Act was
illegal since no reason had been given in support of the order by the
Chief of the Army Staff and that the Central Government had also not
given any reasons while dismissing the appeal of the petitioner in that
case under Section 165 of the Act and that the order of the Central
Government was also illegal. Court pointed out that there is no express
obligation imposed by Section 164 and 165 of the Act on the confirming
authority or upon the Central Government to give reasons in support of
its decision to confirm the proceeding of the Court Martial. This Court
did not accept the contention that apart from any requirement imposed
by the statute or statutory rule either expressly or by necessary
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
25 of 41 10/22/2011 5:13 AM
implication, there is a general principle or a rule of natural justice that a
statutory tribunal should always and in every case give reasons in
support of its decision.
Recognizing the efficacy of reasons in any administrative adjudicatory
process, courts have even held that if the statute does not provide for
appeal or revision, administrative authorities must give reasons if they
are exercising quasi-judicial functions. In Bhagat Ram V. State of
Punjab, the Supreme Court stated that, the decisions of tribunals in
India are subject to the supervisory powers of the High Courts under
Art. 227 of the constitution and appellate powers of this Court under
Art. 136. It goes without saying that both the High court and Supreme
Court are placed under a great disadvantage if no reasons are given and
the revision is dismissed curtly by the use of the single word rejected,
or dismissed. In such a case this Court can probably only exercise its
appellate jurisdiction satisfactorily by examining the entire record of
case and after giving a hearing come to its conclusion on the merits of
appeal. This will certainly be a very unsatisfactory method of dealing
with appeal.
In Tranvancore Rayon Ltd. V. Union of India, the Court insists upon
disclosure of reasons in support of the order on two g rounds: One, that
the party aggrieved in a proceedings before the High Court or this Court
has the Opportunity to demonstrate that the reasons which persuaded
the authority to reject his case were erroneous; the other the obligation
to record reasons operates as a deterrent against possible arbitrary
action by the executive authority invested with the judicial power.
The law is certain on the point that if the decision of the authority of
first instance is wholly or partially reversed in appeal or revision, the
authority must give reasons for such reversal. However, courts have
been changing their positions on the requirement of reasons in case the
appellate or revisional authority simply affirms a decision.
In Woolcombers of India Ltd. Case the court said that the giving of
reasons in support of their conclusions by judicial and quasi-judicial
authorities when exercising initial jurisdiction is essential for various
reasons. First, it is calculated to prevent unconscious, unfairness or
arbitrariness in reaching the conclusions. The authority will adduce
reason which will be regarded as fair and legitimate by a reasonable
man and will discard irrelevant or extraneous considerations. Second, it
is a well known principle that justice should not only be done but
should also appear to be done. Unreasoned conclusions may be just to
those who read them. Reasoned conclusions, on the other hand, will
have also the appearance of justice. Third, it should be remembered that
an appeal generally lies from the decision of judicial and quasi-judicial
authorities to this Court by special leave granted under Article 136. A
judgment which does not disclose the reasons will be little assistance to
the Court.
In Siemens Engg. V. Union of India, the Supreme Court gave a bit of
advice to the administrative agencies exercising quasi-judicial powers.
The Courts observed that if courts of law are to be replaced by
administrative authorities and tribunals, as indeed in some kinds of
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
26 of 41 10/22/2011 5:13 AM
cases, with the proliferation of administrative laws, they may have to be
replaced, it is essential that administrative authorities and tribunals
should accord fair and proper hearing to the persons sought to be
affected by their order and give sufficiently clear and explicit reasons in
support of the orders made by them.
In Maneka Gandhi V. Union of India, Bhagwati, J. held that the Central
Government was wholly unjustified in withholding the reasons for
impounding the passport of the petitioner, and in this way not only a
breach of statutory duty was committed but it also amounted to denial
of opportunity of hearing to the petitioner.
In disciplinary matters where full-scale hearing is given to the person
and a detailed report giving full facts and reasons is prepared by the
enquiry officer, perhaps the writing of reasons by the disciplinary
authority when it fully agrees with the report will be a mere duplication
of the process. The Highest Bench also observed in Tara Chand V.
Municipal Corporation, that it would be laying down the proposition a
little too broadly to say that even an order or concurrence must be
supported by reasons. However, where the disciplinary authority
disagrees with the report of the enquiry officer, it must state its reasons.
In this case an assistant teacher had been dismissed on the ground of
moral turpitude. An enquiry was conducted in which the charge was
fully established. The Assistant Education Commissioner confirmed the
report without giving reasons. On appeal the Commission of Education
also upheld the dismissal by an elaborate order. The petition
challenging the dismissal order was dismissed by the Delhi High Court.
In the Special Leave appeal under Art. 136 the main contention was that
the order of dismissal was bad as the Assistant Education
Commissioner while confirming the report of the enquiry did not give
reasons.
Thus, in order to maintain and uphold the Rule of law it is necessary
that in all administrative and quasi-judicial actions and requirement of
a reasoned decision must be implied unless expressly excluded.
Post Decisional Hearing
Audi Alteram Partem is the second long arm of natural justice which
protects the little man from arbitrary administrative action whenever
his right to person or property is jeopardized. Thus one of the objectives
of giving a hearing in application of the principles of natural justice is to
see that an illegal action or decision does not take place. The principle of
audi alteram partem is the basic concept of the principle of natural
justice. The audi alteram partem rule ensures that no one should be
condemned unheard. It is the first principle of civilized jurisprudence
that a person against whom any action is sought to be taken, or whose
right or interest is being affected, should be given a reasonable
opportunity to defend himself. In the field of administrative action, this
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
27 of 41 10/22/2011 5:13 AM
principle has been applied to ensure fair play and justice to affected
persons. Its application depends upon the factual matrix to improve
administrative efficiency, expediency and to mere out justice.
The right to fair hearing is a code of procedure, and hence covers every
stage through which an administrative adjudication passes, starting
from notice to final determination. It is impossible to lay down a
universally valid test to cover an infinite variety of circumstances that
may exist. Detailed requirement of audi alteram partem is a continuum
from notice to the final determination.
1. Right to Notice:- In legal sense it embraces a knowledge of
circumstances that ought to induce suspicion or belief, as well as direct
information of the fact.
Notice embodies rule of fairness and must proceed an adverse order. It
should be clear and precise so as to give the party adequate information
of the case he has to meet. Time given should be adequate for a person
so that he could prepare an effective defence. Denial of notice and
opportunity to respond make the administrative decision completely
vitiated.
2. Right to present case and evidence:- The adjudicatory authority
should afford reasonable opportunity to the party to present his case. It
is requirement of natural justice that quasi-judicial bodies cannot make
a decision adverse to the individual without giving him an effective
opportunity of meeting any relevant allegations against him, but it does
not have to be a personal hearing. The person affected should have an
opportunity of adequately meeting the case against him and of
presenting his case. If this minimum does not take place, the principles
of natural justice will be violated. A hearing to be fair must fulfill
several conditions as explained below.
3. Right to know the evidence against him:- Every person before an
administrative authority exercising adjudicatory powers has the right to
know the evidence to be used against him.
4. The right to rebut adverse evidence:- The right to rebut adverse
evidence presupposes that the person has been informed about the
evidence against him. It is not enough that the party should know the
adverse material on the file but it is further necessary that he must have
an opportunity to rebut the evidence.
5. No evidence should be taken at the back of other party:- That ex-parte
evidence taken in the absence of the other party violates the principle of
fair hearing. In Hira Nath Mishra V. Principal, Rajendra Medical
College, thirty-six girl students of a medical college filed a report with
the Principal regarding misbehaviour of the boys in the girls hostel. The
Enquiry Committee appointed by the Principal recorded the statements
of the girls, but in the absence of the appellants. The appellants were
also identified by the girls through photographs. The Committee found
the appellants guilty and consequently an expulsion order was served
on them. The order of expulsion was challenged before the Supreme
Court and one of the grounds of challenge was that the evidence was
taken behind their backs. The court rejected the contention holding that
the girls would not have ventured to make the statements in the
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
28 of 41 10/22/2011 5:13 AM
presence of the appellants except at the great risk of retaliation and
harassment. In this case, whatever evidence was collected behind the
backs of the appellants was brought to their notice and they were
provided with an opportunity to rebut the evidence.
The Court held that the High Court was plainly right in holding that
principles of natural justice are not inflexible and may differ in different
circumstances. The doctrine of natural justice cannot be imprisoned
within the strait-jacket of a rigid formula and its application depends
upon several factors.
Therefore, any administrative agency may inform its mind in any
manner it thinks best. It may take official notice of certain things and
may make off-the-record consultation, but fairness demands that the
party must be apprised of all these matters if these form the basis of the
agencys decision.
6. Right to Counsel:- The judicial approach to start with was halting in
the matter of representation through a counsel. The view taken was that
representation through a lawyer was not claimable as a matter of right.
This was the general rule and right to counsel an exception. But this
view has now taken an almost about turn. In some situations the court
has made this requirement as mandatory, leaving no discretion with the
adjudicator. It has also liberalized the procedural restrictions in the
matter of representation through a counsel by the party.
Art. 22(3)(b) of the Constitution expressly denies the right to counsel to
a detenu in preventive detention proceedings. In spite of this
prohibition, the Supreme court in A.K.Roy V. Union of India, held that if
the government or the detaining authority was represented through a
legal practitioner or legal advisor before the advisory board, the detenu
will always have such a right because of Art. 14 and 21. And the court
took an expansive view of the term legal adviser. The court found that
officers of the concerned department appeared before the board to
justify the detention order. These came in the category of legal advisers,
as whosoever assists or advises on facts or law must be deemed to be in
a position of a legal adviser.
In J.K. Aggarwal V. Haryana Seeds Dev. Corpn. Case the question was
whether in the course of the disciplinary enquiry initiated against the
appellant by the corporation of the disciplinary enquiry initiated against
the appellant by the corporation on certain charges, which if established
might lead to appellants dismissal from service, appellant was entitled
to engage the services of a legal practitioner in the conduct of his
defence. The Civil Services (Punishment and Appeal) Rules provided
that where the punishing authority appoints an enquiry officer for
holding an enquiry against a person in service, it may appoint a
Government servant or a legal practitioner to present on it behalf the
case. The person against whom a charge is being enquired into, shall be
allowed to obtain the assistance of a Government servant to produce his
defence. If the charges are likely to result in the dismissal of a person,
such person may with the sanction of enquiry officer, be represented by
counsel. The appellant was denied the permission to engage the services
of a lawyer by the Enquiry Authority.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
29 of 41 10/22/2011 5:13 AM
The Supreme Court observed that when the rules say nothing then the
party has no absolute right to be legally represented. It is a mater of the
discretion of the authorities or tribunal. If they, in the proper exercise of
their discretion, decline to allow legal representation the court will not
interfere. But the tribunal must not fetter its discretion by rigid bonds.
A tribunal is not at liberty to lay down an absolute rule: we will never
allow anyone to have a lawyer to appear for him. The tribunal must be
ready, in a proper case to allow it. The Court held that the refusal to
sanction the service of a lawyer in the enquiry was not a proper exercise
of the discretion under the Rule resulting in failure of natural justice;
particularly, in view of the fact that the Presenting Officer was a person
with legal attainments and experience.
7. Report of the enquiry to be shown to the other party:- In Managing
Director ECIL V. B. Karunakar, the Court held that the delinquent
employee has a right to a copy of the enquiry report before the
disciplinary authority takes a decision on the question of his guilt. The
Court further emphasized that this rule extends to all establishments-
government, non-government, public or private. Failure of the
employee to ask for the report would not amount to waiver.
Rules/Standing orders denying this first-stage right will be invalid.
Post Decisional Hearing
The idea of post-decisional hearing has been developed to maintain a
balance between administrative efficiency and fairness to the individual.
This harmonizing tool was developed by the Supreme Court in Maneka
Gandhi V. Union of India. In this case the passport of the petitioner was
impounded in the public interest by an order and the government
having declined to furnish her the reasons for its decision she filed a
petition before the Supreme Court under Art. 32 challenging the validity
of the impounded order. The government also did not give her any
pre-decisional notice and hearing. One of the contentions of the
government was that the rule of audi alteram partem must be held to be
excluded because it may have frustrated the very purpose of
impounding the passport. Rejecting the contention the court rightly
held that though the impoundment of the passport was an
administrative action yet the rule of fair hearing is attracted by
necessary implication and it would not be fair to exclude the application
of this cardinal rule on the ground of administrative convenience.
The concept of post-decisional hearing in situations where
pre-decisional hearing is required either expressly or by necessary
implication is itself based on wrong hypothesis that administrative
efficiency and fairness to the individual are discreet values. One cannot
expect that a post-decisional hearing would be anything more than a
mere empty formalistic ritual.
Post-decisional hearing mechanism may be resorted to only when
pre-decisional hearing may not be possible and the only choice may be
to have either no hearing or a post-decisional hearing.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
30 of 41 10/22/2011 5:13 AM
In Swadeshi Cotton Mills. V. Union of India, the Court validated the
order which had been passed in violation of the audi alteram partem
rule and which was found to have been attracted by necessary
implication because the government had agreed to give post-decisional
hearing.
Besides this K.I. Shephard V. Union of India also reflects the thoughts
process of the Highest Bench on this important issue. In this case in
terms of the scheme of the Banking Regulation Act three erstwhile
banks had been amalgamated. Pursuant to the scheme, certain
employees of the amalgamated banks were excluded from employment
and their services were not taken over. Some excluded employees filed
writs before the High Court under Art. 226 for relief. The Single Judge
granted partial relief by proposing post-decisional hearing. On appeal
the Division Bench dismissed the writ petitions. Some of the excluded
employees then filed writ petitions directly before the Supreme Court.
Allowing the writs the court held that post-decisional hearing in this
case would not do justice especially where the normal rule of fair
hearing should apply. The court pointed out that there is no justification
to throw a person out of employment and then give him an opportunity
as a condition precedent to action. The Court observed that it is a
common experience that once a decision is taken there is a tendency to
uphold it and the representation may not yield any fruitful result.
Therefore, even in cases of emergent situations pre-decisional hearing
is necessary which may not be an elaborate one.
In H.L. Trehan V. Union of India, a government company, on acquiring
shares of some private petroleum companies also acquired their staff.
But under the relevant law, Government Co. could duly alter the
remuneration and conditions of service of these employees.
Accordingly, it issued a circular reducing their perquisites and
allowances. The legality of the circular was challenged by some of the
employees on the ground that it substantially altered their terms of
service to their prejudice and that they had not been given a hearing
before issuing the impugned circular.
The Supreme Court observed that in our opinion, the post-decisional
opportunity of hearing does not subserve the rules of natural justice.
The authority who embarks upon a post-decisional hearing will
normally proceed with a closed mind and there is hardly any chance of
getting a proper consideration of the representation at such a
post-decisional opportunity. Thus in every case where the
pre-decisional hearing is warranted post-decisional hearing will not
validate the action except in very exceptional circumstances.
A prior hearing may be better than a subsequent hearing but a
subsequent hearing is better than no hearing at all. The approach may
be acceptable where the original decision does not cause serious
detriment to the person affected, or where there is also a paramount
need for prompt action, where it is impracticable to afford antecedent
hearings. In substance it is the necessity for speed which justifies
post-decisional hearing at a later stage. In emergent situations the
principles of natural justice are excluded and therefore if the court
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
31 of 41 10/22/2011 5:13 AM
comes to the conclusion that in a given situation these rules are
applicable there seems to be no reason why their observance should not
be insisted upon at the pre-decisional stage. The law now clearly is that
in all normal cases, pre-decisional hearing is necessary, but in very
exceptional cases, the post-decisional hearing will validate the action if
no pre-decisional hearing is given.
Exception to the Rule of Natural Justice:
The word exception in the context of natural justice is really a
misnomer, because in these exclusionary cases the rule of audi alteram
partem is held inapplicable not by way of an exception to fair play in
action, but because nothing unfair can be inferred by not affording an
opportunity to present or meet a case.
Application of the principles of natural justice can be excluded either
expressly or by necessary implication, subject to the provisions of Art.
14 and 21 of the Constitution. Therefore, if the statute, expressly or by
necessary implication, precludes the rules of natural justice it will not
suffer invalidation on the ground of arbitrariness. Other exclusionary
situations may include:
(1) Exclusion in emergency: In such exceptional cases of emergency
where prompt action, preventive or remedial, is needed, the
requirement of notice and hearing may be obviated. Therefore, if the
right to be heard will paralyse the process, law will exclude it. In a
situation of emergency where precious rights of people are involved,
post-decisional hearing has relevance to administrative and judicial
gentlemanliness. In Swadeshi Cotton Mills V. Union of India, the court
held that even in emergent situations the competing claims of hurry
and hearing are to be reconciled, no matter the application of the audi
alteram paratem rule at the pre-decisional stage may be a short
measure of fair hearing adjusted, attuned and tailored to the exigency of
the situation.
(2) Exclusion in cases of confidentiality: In Malak Singh V. State of
Punjab, the Supreme Court held that the maintenance of surveillance
register by the police is a confidential document. Neither the person
whose name is entered in the register nor any other member of the
public can have access to it. Furthermore, the Court observed that the
observance of the principles of natural justice in such a situation may
defeat the very purpose of surveillance and there is every possibility of
the ends of justice being defeated instead of being served.
(3) Exclusion in cases of interim preventive action: If the action of the
administrative authority is a suspension order in the nature of a
preventive action and not a final order, the application of the principles
of natural justice may be excluded.
(4) Exclusion in cases of legislative action: Legislative action, plenary or
subordinate, is not subject to the rules of natural justice because these
rules lay down a policy without reference to a particular individual. On
the same logic principles of natural justice can also be excluded by a
provision of the Constitution also.
(5) Where no right of the person is infringed: Where no right has been
conferred on a person by any statute nor any such right arises from
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
32 of 41 10/22/2011 5:13 AM
common law the principles of natural justice are not applicable.
(6) Exclusion in cases of Statutory Exception or Necessity:
Disqualification on the ground of bias against a person will not be
applicable if he is the only person competent or authorized to decide
that matter or take that action.
Charan Lal Sahu V. Union of India (Bhopal Gas Disaster Case) is a
classical example of the application of this exception. In this case the
constitutional validity of the Bhopal Gas Disaster Act which had
authorized the Central Government to represent all the victims in
matters of compensation award, had been challenged on the ground
that because the Central Government owned 22 percent share in the
Union Carbide Company and as such it was a joint tortfeasor and thus
there was a conflict between the interests of the government and the
victims. Negativating the contention the court observed that even if the
argument was correct the doctrine of necessity would be applicable to
the situation because if the government did not represent the whole
class of gas victims no other sovereign body could so represent and thus
the principles of natural justice were not attracted.
(7) Exclusion in case of contractual arrangement: In State of Gujarat V.
M.P. Shah Charitable Trust, the Supreme Court held the principles of
natural justice are not attracted in case of termination of an
arrangement in any contractual field. Termination of an
arrangement/agreement is neither a quasi-judicial nor an
administrative act so that the duty to act judicially is not attracted.
(8) Exclusion in case of government policy decision: In taking of a
policy decision in economic matters at length, the principles of natural
justice have no role to play. If in exercise of executive powers the
government takes any policy decision, principles of natural justice can
be excluded because it will be impossible and impracticable to give
formal hearing to all those who may be affected whenever a policy
decision is taken and at times it will be against public interest to do so.
(9) Useless formality theory: Where on the admitted or undisputed
facts only one conclusion is possible and under the law only one penalty
is permissible, the Court may not insist on the observance of the
principles of natural justice because it would be futile to order its
observance. Therefore, where the result would not be different, and it is
demonstrable beyond doubt, order of compliance with the principles of
natural justice will not be justified.
(10) Exclusion in case of purely administrative matters
(11) Exclusion based on impracticability.
Effects of Breach of the Rules of Natural Justice: Action Void or
Voidable:
Courts are unanimous that a decision rendered in violation of the rule
against bias is merely voidable and not void. The aggrieved party may
thus waive his right to avoid the decision; as where timely objection is
not made even though there is full knowledge of the bias and the right
to object to it.
There is fundamental disagreement amongst courts and jurists as to the
effect of a breach of the rule of fair hearing on any decision. Professor
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
33 of 41 10/22/2011 5:13 AM
Wade is of the view that breaches of the rules of natural justice must
have the effect of producing void decisions.
The Supreme court in Nawab Khan V. State of Gujarat categorically held
that an order which infringes a fundamental freedom passed in
violation of the audi alteram partem rule is a nullity. The appellant in
this case had been prosecuted and convicted fro disobeying an
externment order passed in violation of the rules of natural justice is of
no effect and its violation is no offence because such a determination is
jurisdictional error going to the very roots of a determination.
However, the decision of the Supreme Court in Maneka Gandhi V.
Union of India created doubts about the efficacy of this proposition. The
cout however concluded that the impounding of the passport attracts
rules of natural justice and their violation is a fatal flaw which could
make the order void. But, taking note of the assurance of the
government that the appellant would be provided with a post-decisional
hearing, declined to interfere with the impoundment order. The effect
of this decision is that an order passed in violation of the rules of
natural justice is not void hence can be validated by post-decisional
hearing. The same was the conclusion of the Supreme Court in
Swadeshi Cotton Mills V. Union of India. The court held that a quasi-
judicial or administrative decision rendered in violation of the audi
alteram partem rule, whenever it can be read as an implied requirement
of the law, is null and void, yet it refrained from striking down the
impugned order on the assurance of the Solicitor-General that a
post-decisional hearing would be given.
However, a decision of the Supreme Court in A. R. Antulay V. R.S.
Nayak, favoured the proposition that any action in violation of the
principles of natural justice is a nullity. Nevertheless, it may be pointed
out that whenever an order is struck down as invalid, being violative of
principles of natural justice, there is no final decision of the case and,
therefore, proceedings are left open.
Those who suggest that a decision in breach of the audi alteram partem
is merely voidable simply try to emphasise the fluctuating contents of
the rule and the administrative inconvenience which would be caused if
the decision is considered as void. The courts should not worry about
administrative inconvenience because the administration can well look
after its own convenience. In situations of denial of fair hearing at
pre-decisional stage, a post-decisional hearing cannot serve any purpose
because in all probability it will be nothing more than a shallow public
relations exercise.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
34 of 41 10/22/2011 5:13 AM
Certiorari
Certiorari means to inform. Certiorari may be defined as a judicial
order operating in personam and made in the original legal proceedings,
directed by the Supreme Court or High Court to any constitutional,
statutory or non-statutory body or person, requiring the records of any
action to be certified by the court and dealt with according to law.
It is a remedy operating in personam, therefore, writ can be issued even
where the authority has become functus officio, to keeper of the
records.
The requirement that certiorari can be issued only when the action is
judicial or quasi-judicial is no more valid. Certiorari can be issued to
quash actions which are administrative in nature. The function of
Certiorari is to quash a decision already made and so it is issued when
the body in question has disposed of the matter and rendered a
decision. In A.K. Kraipak V. Union of India, the writ of certiorari was
issued to quash the action of a Selection Board.
Certiorari can be issued on any of the following grounds:
1. Lack or Jurisdiction: Lack of jurisdiction refers to such situations
where the authority has no jurisdiction at all to take action. Such
situations may arise:
(a) If the authority is improperly constituted.
(b) If the authority commits an error in its decision on jurisdictional
facts and thereby assumes jurisdiction which never belonged to it.
(c) If the authority is incompetent to take action in respect of a locality,
party or subject-matter.
(d) If the law which gives jurisdiction is itself unconstitutional.
(e) If the preliminary essentials have been disregarded, i.e., omission to
serve notice as required by law.
It may be noted that when an authority has jurisdiction to determine a
matter, it does not lose it by coming to a wrong conclusion on law or
fact.
In Rafiq Khan V. State of U.P., section 85 of the U.P. Panchayat Raj Act
gave power to the Sub-Divisional magistrate either to quash the entire
order of the Panchayat adalat or to cancel its jurisdiction. The SDM had
no power to modify the order in any manner. The court issued the writ
of certiorari to quash the decision of the SDM where he had modified
the conviction passed by the panchayat adalat by quashing the
conviction of the accused for one offence and maintained it in respect of
the other offence.
Certiorari may also be issued to quash the decision of the authority
declining jurisdiction where it legally belongs to it.
2. Excess of Jurisdiction: Excess of jurisdiction refers to cases where the
authority has jurisdiction but it exceeds its permitted limits.
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
35 of 41 10/22/2011 5:13 AM
3. Abuse of Jurisdiction: Certiorari will also lie to quash an action where
the authority has jurisdiction but has abused it. An authority shall be
deemed to have abused its jurisdiction when it exercises its power for
an improper purpose, or on extraneous considerations, or in bad faith,
or leaves out a relevant consideration, or does not exercise the power by
itself but at the instance and discretion of someone else.
4. Violation of the Principle of natural Justice: Principles of natural
justice includes:
(a) Rule against bias: Bias may includes:
(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv)
Departmental Bias; (v) Preconceived notion bias.
(b) Rule of audi alteram Partem: This right to fair hearing may include:
(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right
to rebut evidence; (iv) Right to cross-examination and legal re
presentation; (v) Right to reasoned decision, etc.
(c) Reasoned Decision: the requirement of reasoned decisions is as
loaded to these two as the third principle of natural justice.
In the words of the Supreme Court, the extent and application of the
doctrine of natural justice cannot be imprisoned within the strait-jacket
of a rigid formula. The application of the doctrine depends upon the
nature of the jurisdiction conferred on the administrative authority
upon the character of the rights of the person affected, the scheme and
policy of the statute, and other relevant circumstances disclosed in the
particular case.
If an administrative agency violates any of the above rules in a case
where they must be observed, the decision of the agency may be
quashed by the court through the writ of certiorari.
5. Error of law apparent on the face of the record: It is well-settled that
certiorari will be issued to quash decisions which though made within
jurisdiction reveal on the face of the record an error of law.
The record for this purpose shall include:
(i) Documents in which the determination is recorded.
(ii) Documents which indicate the proceedings and pleadings.
(iii) Reports, the extracts of which are included in the record.
(iv) Documents which are mentioned in the formal order to be the basis
of the decision.
The term error apparent on the face of the record cannot be defined
with exactitude.
Whether or not an error is an error of law and an error which is
apparent on the face of the record, must always depend upon the facts
and circumstances of each case and upon the nature and scope of the
legal provision which is alleged to have been misconstrued or
contravened.
Error apparent on the face of the record shall include not a mere error
but a manifest error based on clear ignorance or disregard of the law, or
on a wrong proposition of the law, or on clear inconsistency between
facts and the law and the decision.
6. Fraud: If the decision of the agency has been obtained by fraud or the
fraud operates to take away jurisdiction or bestows jurisdiction or
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
36 of 41 10/22/2011 5:13 AM
results in the denial of justice, the decision may be quashed by issuing
certiorari.
It is well-settled law that the certiorari cannot be issued to disturb a
finding of fact unless it is based on no evidence or purely on surmises
and conjectures or which is manifestly against the basic principles of
natural justice.
In Syed Yakob v. Radha Krishan, it was observed that a writ of certiorari
can be issued for correcting errors of jurisdiction committed by inferior
courts or tribunals without jurisdiction or in excess of it or as a result of
failure to exercise jurisdiction. A writ can similarly be issued where in
exercise of jurisdiction conferred on it the Court of Tribunal acts
illegally or improperly, as for instance, it decides a question without
giving an opportunity to be heard to the party affected by the order, or
where the procedure adopted in dealing with the dispute is opposed to
principles of natural justice. There is, however, no doubt that the
jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and
the Court exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot be
reopened or questioned in writ proceedings.
An error of law which is apparent on the face of the record can be
corrected by a writ, but not an error of fact however grave it may appear
to be. In regard to a finding of fact recorded by the Tribunal, a writ of
certiorari can be issued if it is shown that in recording the said finding
the Tribunal had erroneously refused to admit admissible and material
evidence or had erroneously admitted in admissible evidence which has
influenced the impugned finding. Similarly, if a finding of a fact is based
on no evidence, that would be regarded as an error of law which can be
corrected by writ of certiorari. In dealing with this category of cases,
however we must always bear in mind that finding of fact recorded by
the Tribunal cannot be challenged in proceeding for a writ of certiorari
on the ground that the relevant and material evidence adduced before
the Tribunal was insufficient or in-adequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said pints cannot be
agitated before a writ Court. It is within these limits that the
jurisdiction conferred on the High Courts under Art. 226 to issue a writ
of certiorari can be legitimately exercised.
Mandamus
Mandamus is a judicial remedy issued in the form of an order from the
Supreme Court or a High Court to any constitutional, statutory or a
non-statutory agency-to do or refrain from doing under some specific
act which that agency is obliged to do or ref rain from doing under the
law and which is in the nature of a public duty or a statutory duty.
Mandamus is a command issued by a court to an authority. For
example, when a body omits to decide a matter which it is bound to
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
37 of 41 10/22/2011 5:13 AM
decide, it can be commanded to decide the same. The function of
mandamus is to keep the public authorities within the limits of their
jurisdiction while exercising public authorities within the limits of their
jurisdiction while exercising public functions. Mandamus can be issued
to any kind of authority in respect of any type of function.
In India, mandamus can be issued to undo what has already been done
in contravention of a statute, or to enforce a duty to abstain from acting
unlawfully.
In the modern era, extensive discretionary powers are being conferred
on administrative authorities, and the question of judicial review of
such powers is a burning problem of administrative law today. This
aspect falls within the purview of mandamus. A body may exercise its
discretion infringing a judge-made criterion evolved to regulate
discretionary powers. In such a case, mandamus may be a proper
remedy directing the concerned authority to act according to law. A
discriminatory administrative decision can be quashed through
mandamus.
It is considered as a residuary remedy of public law. It is a general
remedy whenever justice has been denied to any person.
1. Conditions for the grant of Mandamus:
(i) There must be public or Common Law duty: Until recently, the law
was that mandamus would lie only to enforce a duty which is public in
nature. Therefore, a duty private in nature and arising out of a contract
was not enforceable through this writ.
A public duty is one which is created wither by a statute, rules or
regulations having the force of law, the Constitution, or by some rule of
common law.
The public duty enforceable through mandamus must also be an
absolute duty. Absolute is one which is mandatory and not
discretionary. Writ of mandamus along with suitable directions can be
issued by the court for the protection and enforcement of fundamental
rights. Mandamus cannot be issued to enforce administrative directions
which do not have the force of law, hence it is discretionary that the
authority accept it or reject it.
The expression public duty does not imply that the person or body
whose duty it is must be a public official or an official body. Therefore,
mandamus would lie against a company constituted under a statute for
the purpose of compelling it to fulfil its public responsibilities. Writ can
be issued against a private individual also for the enforcement of public
duties.
Mandamus is employed to enforce a duty the performance of which is
imperative and not optional or discretionary with the authority
concerned. Mandamus is used to enforce the performance of public
duties by public authorities.
(ii) There must be a specific demand and refusal: Before mandamus can
be granted, there must be a specific demand for the fulfillment of a duty
and there must be specific refusal by the authority.
However, the specific demand for the performance of a duty may not be
necessary where it appears that the demand would be unavailing, or
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
38 of 41 10/22/2011 5:13 AM
where the respondent by his own conduct has made the demand
impossible, or where the duty sought to be enforced is of a public nature
and no one is specially empowered to demand performance, or where
the duty is imperatively required by law of a ministerial officer.
(iii) There must be a clear right to enforce the duty: Mandamus will not
be issued unless there is, in the applicant, a right to compel the
performance of some duty cast on the authority.
The right to enforce a duty must subsist till the date of the petition. If
the right has been lawfully terminated before filing the petition,
mandamus cannot be issued.
The right to enforce the duty must belong to the petitioner. Therefore, a
shareholder cannot enforce the right of the company which is itself a
legal person capable of enforcing its own rights, unless the petitioner
can show that in the infringement of the companys rights his own
personal rights have been adversely affected.
However, this does not mean that a person can never enforce a public
right which does not specifically belong to any individual. Mandamus
can be issued on the petition of a taxpayer to restrain a municipality
from misallocation.
(iv) The right must be subsisting on the date of the petition: If the right
is not subsisting on the date of petition, mandamus cannot be issued.
2. Grounds for the grant of Mandamus: Mandamus can be issued on all
those counts on which certiorari can be issued. Therefore, mandamus
can be issued for lack of jurisdiction, excess of jurisdiction, abuse of
jurisdiction, for violation of the principles of natural justice and error of
law apparent on the face of the record. Mandamus may be issued not
only to compel the authority to do something but also to restrain it from
doing something. Therefore, it is both negative and positive and hence
can do the work of all other writs. It provides a general remedy in
administrative law.
Like any other extraordinary remedy, the grant of mandamus is
discretionary. The court may refuse it if there is unreasonable delay
infilling the petition, or if there is adequate alternative remedy, or if it is
premature, or if its issuance would be infructuous and futile. It may
also be refused on equitable considerations, i.e., where there is a
misstatement or suppression of facts in the petition. In view of the
provisions of Article 122(2) and 212(2) of the Constitution, mandamus
will not lie against any officer or member of Parliament or State
Legislature in whom powers are vested for regulating the procedure or
the conduct of business for maintaining order. Mandamus would also
not lie against the President or Governor of any State for the exercise
and performance of powers and duties of his office.
In A.K. Roy V. Union of India, it was held that an Act cannot be said to
commence or put in force unless it is brought into operation by a
legislative enactment or by exercise of authority by the delegated
empowered to bring the Act into operation by issuing the necessary
notification. When enforcement of a statute or a provision therein is left
to the discretion of the Government without laying down any objectives
standards, no writ or mandamus can be issued to the Government to
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
39 of 41 10/22/2011 5:13 AM
enforce the statute or any of the provisions of the statute.
Writ of mandamus cannot be issued to compel an authority to pass an
order in violation of a statutory provision.
In hearing the petition for mandamus, the court does not sit as a court
of appeal. The court will not examine the correctness or otherwise of
the decision on merits. It cannot substitute its own wisdom for the
discretion vested in the authority unless the exercise of discretion is
illegal.
In Shri Anandi Mukta Sadguru Trust V. V.R. Rudani, the issue was
whether a trust is a private institution against which no writ of
mandamus can be issued. A public trust running a college afflicted to
Gujarat University decided to close down the college without the
approval of the university. The academic staff under law were entitled to
terminal benefits, but were not paid due salary, allowance etc. They
move the High Court for issuance of a writ of mandamus directing the
respondent trust to pay to them. The trust contended that it is not a
statutory body and is not subject to the writ Jurisdiction of the High
Court. The High Court however, accepted the writ petition. The Trust
approached the Supreme Court.
The Supreme Court observed that in the present case there is no plea
for specific performance of contractual service. The respondent
employees are not asking for mandamus to put them back into the
college. They were claiming only the terminal benefits and arrears. The
question is whether the trust can be compelled to pay by a writ of
mandamus. If the rights are purely of a private character no mandamus
can be issued. If the management of the college is purely a private body
with no public duty mandamus will not lie. There are two exception to
mandamus. But once these are absent and when the party has no other
equally convenient remedy, mandamus cant be denied. The appellant
trust was managing the afflicted college to which public money is paid
as Government aid. Public money paid as government and plays major
role in the control, maintenance and working of educational
institutions. The aided institutions like government institutions
discharge Public Functions by way of imparting education to students.
They are subject to the rules and regulations of the affiliated university.
Employment in such institutions, therefore, is not denied of any public
character. There is a legal right duty relationship between the staff and
the management and thus mandamus cant be refused.
The court observed that the scope of the writs in Indian law is wider
than that of the prerogative writs in England. This is because firstly, the
constitution uses the words writs in nature of which does not make
our writs identical with those in England but only draws an analogy
from the latter. Secondly our High Court can issue directions, order or
writs other than the prerogative writs. Thus enables the courts to mould
the relief to meet peculiar and complicated requirements of this country
under Article 226 writs can be issued to any person or authority
therefore, not to be confined only to statutory authority and
instrumentalities of the state. They may cover any other person or body
performing public duty. The duty must be judged in the light of positive
Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
40 of 41 10/22/2011 5:13 AM
obligation owed by the person or authority to the affected party.
posted by Mayank Mehandru | 10:00 PM
<< Home

Law Notes: Administrative Law http://mayank-lawnotes.blogspot.com/2007/01/administrative-law.html
41 of 41 10/22/2011 5:13 AM