TOPIC I: EXTENT OF ADMINISTRATIVE POWER

1. Title of the Case:

Ram Jawaya Kapur

v.

State of Punjab

(AIR 1955 SC 549)

2. Facts in Brief:

From 1905 to 1950, in the State of Punjab, the recognized schools of Punjab had to refer to
the books from the list of alternate text as approved by the Education Department of Punjab.
For the purpose of approval, various publishers or independent authors submitted their
textbooks that were prepared with their own money, to the Government of Punjab. The
Education Department then approved a few text books out of various text books published by
various publishers in accordance with the principles laid down by it.

In May 1950, post partition of the erstwhile Punjab into three zones, this procedure was
changed by certain resolutions passed by the Government of Punjab. The Government
prepared and published textbooks on few subjects without inviting them from the publishers
and authors. On the remaining subjects, the earlier procedure was followed but instead of
approving a list of textbooks, the Government only approved one textbook on each subject.
The Government also charged 5% of the sale price as royalty on all the approved textbooks.

Through another notification in August 1952, the Government only invited textbooks from
authors for approval. Also, the authors whose textbooks were approved were made to enter an
agreement according to which the copyright in these books vested absolutely in the
Government and the authors would get only 5% royalty on the sale of the text books at the
price or prices specified in the list. Thus the Government took the publishing, printing and
selling of the books exclusively in their own hands.
The present petition was filed under Article 32 of the Indian Constitution against the
notification of the Government passed in August 1952. The six petitioners, who were
individuals engaged in the occupation of publishing, printing and selling textbooks, contented
that the Government of Punjab, was not only imposing on them, unwarranted restriction on
the regular carrying out of their occupation of publishing books but had altogether oust the
petitioners and other fellow traders from their business. It was contended by the petitioner
that this act of government was not only violative of their fundamental right of carrying any
type of trade or commerce mentioned in Art. 19 (1)(g), but was also ultra-vires to the
constitutional power vested in the government, as the government being an executory body of
the State did not have the power to do so without any specific legislation empowering them to
enter into that activity or trade.

The respondent, the Government of Punjab, on the other hand, maintained that the said action
was completely covered under the ambit of their implied executive power as owing to the
changing era, the executive now has an increased ambit of powers and functions as opposed
to the traditional function of maintaining state security and decorum. The government further
contended that they acted in accordance to the procedure required and hence not only making
it completely intra-vires their powers but also in line with the fundamental rights of the
petitioner.

3. Issues Involved:

The issues before the Court were:

1. Whether there was a violation of the FR of the petitioners in creation monopoly in the
business of printing and publishing text books for schools was ultra vires their
powers?

2. Even if the State could create a monopoly in its favor, whether it could have been
done by any executive act or did it necessarily require a specific legislation?
4. Law Applied:

While dealing with the issues of the case, the Court had to answer the nature of executive
power and the extent of the functions of executive. In order to determine the nature of
executive power, the Court referred to the two Australian cases of The Commonwealth and
the Central Wool Committee v. The Colonial Combing, Spinning and Weaving Co. Ltd.,
and Attorney-General for Victoria v. The Commonwealth. In the opinion of the Court, the
Australian Constitution specifically defines executive power so as to include only
maintenance of the Constitution and of the laws of the Commonwealth. But since no such
restriction on the extent of executive power is defined in the Indian Constitution, the Court
held that the understanding of executive power in the Australian context does not apply to
India and cannot be restricted to mere implementations of legislations.

While dealing with the nature of executive function, the Court relied on the federal structure
of the Indian Constitution that is based on the British Parliamentary system where the
executive is deemed to have the function to formulate governmental policy and to incorporate
it into law while retaining the confidence of the Legislature. Generally, the executive has the
function of implementing the legislations put in place by the legislature. But, in modern
times, owing to the expansion of the functions of the state, there are overlaps between various
functions of the legislature, executive, and the judiciary. In the Indian context, the executive
can exercise legislative function through subordinate legislation when such powers are
delegated to it by the legislature and is also empowered to exercise judicial functions in a
limited way provided that in exercise of such functions, the executive cannot go against the
provisions of the Constitution or of any law as in provided in Article 154 of the Constitution.
Hence, the Court noted that in India there is no strict separation of powers. Also, the Court
relied on the case of Motilal v. Government of State of Uttar Pradesh to conclude that in
order to enable the executive to function, there is no need for a specific law to be already in
existence and the executive function is not merely restricted to implementing such laws.
Backing of specific legislations is only required when the government require certain extra
powers in addition to what they by default possess under ordinary law for carrying a
particular trade or business. In cases were such activities require expenditure of funds, the
only requirement is authorization of the Parliament regarding such expenditure either directly
or under the provisions of a statute.
5. Law Laid Down:

In the present case, the Government of Punjab, had estimated and shown the expenses to be
incurred in the process in the annual financial statement and were also sanctioned by the State
Legislature and due Appropriation Acts were passed. Hence, the Court did not agree with the
petitioners on their contention that the Government of Punjab was not entitled to make such a
notification without a specific legislation sanctioning such course.

With respect to the question of violation of FR, the Court held that the government action in
question was not in violation of the fundamental right of the petitioner, which are mentioned
in Art. 19(1)(g) of the Constitution of India; as the government by the said notice may have
restricted the book used in schools but still these publishers and authors were free to approach
the private book shops for business.

The Court further held that since there was no violation of any FR of the petitioners in the
first place, the Government could not be said to have infringed such FR through the
notifications.

Hence, the Court dismissed the petition holding that in India, there is a strict separation of
powers but the separation of functions is not observed in strictest sense.

6. Views – Observations – Comments:

Even decades after the judgments, Ram Jawayya v State of Punjab, is still an important case
in the field of constitutional law as it discusses about the complexity and extent of separation
of powers in the Indian context while interpreting separation of powers in the light of the
federal nature of the Indian Constitution.

The court emphasized on the view that with the rising need in change of paradigm of
functions of the State, there needs to be some intrinsic change in the understanding and
constituent of the executive powers. While analyzing this concept the court of law held that
now there is a need for the executive body to be capable of taking the step for fulfilling their
obligations without the backing of any legislation permitting the act. Owing to the changing
era, there was a need to redefine the powers and functions of the state and to shift from the
traditional one, which includes the protection of the state and its civilians and territory from
both foreign and domestic enemy. The present definition of functions of the state, according
to apex court, also included the social welfare activity as an intrinsic feature. Therefore, the
Court held that the executive, in exercise of its functions, does not need any particular
legislation to sanction the act, but rather only requires to follow the procedure; mainly
detailing the cause of the financial appropriation.

It can be concluded that the doctrine of separation of power, in contemporary times, is not
restricted to the strict division of powers among various organs of the State but includes the
exercise of such power on the principle of “Checks and Balances” signifying the fact that
none of the organs of Government should usurp the essential functions of the other organs.
The case furthers the understanding of separation of power by protecting those acts of an
organ that might appear to encroach upon the powers and functions of other organs but is
mere incidental to its main powers or functions. Hence, even though it allows for a situation
where an organ might encroach upon the powers of the other, it uphold the independence of
each organ as well.

This understanding of the relationship between the three organs of the State becomes relevant
in contemporary times throughout the world owing to the increase in complexity of functions
of each of the organs.
TOPIC III; A: NATURAL JUSTICE/FAIRNESS – CONCEPT, CONCERN AND
APPLICABILITY

1. Title of the Case:

A.K Kraipak

v.

Union of India

(AIR 1970 SC 150)

2. Facts in Brief:

In 1966, a service called The Indian Forest Service was constituted, the selection for which
was to be made from among the officers serving in the forest department of the state. Section
3 of the All India Services Act, 1951 provides that the Central Government shall after
consulting the Government of the States concerned including that of Jammu and Kashmir to
make rules for the regulation of recruitment and the conditions of the service of persons
appointed to those All India Services.

In pursuance of the power given under Section 3, Indian Forest Service (Recruitment) Rules,
1966 were made. The Rule 4(1) of the above mentioned Rules reads as-

“As soon as may be, after the commencement of these rules, the Central Government may
recruit to the service any person from amongst the members of the State Forest Service
adjudged suitable in accordance with such regulations as the Central Government may make
in consultation with State Governments and the Commission.” (emphasis laid)

Now the regulation 3 of Indian Forest Service (Initial Recruitment) Regulations, 1956 framed
under Rule 4(1) of the Indian Forest Service (Recruitment) Rules, 1966 provided for the
Constitution of a Special Selection Board. It provided that for the purpose of making
selection to any State Cadre, the Central Government shall constitute a special selection
board consisting of:

1. The Chairman of UPSC or his nominee.

2. Inspector General of Forests of the Government of India.

3. Joint Secretary of UOI.

4. Chief Secretary of the concerned State Government.

5. Chief Conservator of Forest of the concerned State Government.

Regulation 5 dealt with the preparation of the list of suitable candidates. It reads as “The
Board shall prepare, in order of preference, a list of such officers of the State Forest Service
who satisfy the conditions specified in Regulation 4 and who are adjudged by the Board
suitable for appointment to posts in the senior and junior scales of the service.”

The selection Board was to be headed by the Chief Conservator of the Forest of the State
while the final selections were to be made by the Union Public Service Commission
(U.P.S.C).

In the State of Jammu and Kashmir, a person by the name of Naquishbund was appointed as
the acting Chief Conservator of forest. He had been appointed to the said post by overlooking
the seniority of three officers – Basu, Baig and Kaul. They had filed petitions against their
supersession to the higher authorities. In the meantime, when the selection Board for
recommending the names of officers for All India Forest Service was formed, Naquishbund
came to be appointed as its ex-officio chairman. The Board recommended the names of the
persons including Naquishbund but excluding the other three officers who had been
superseded. Thereafter the selection board reviewed the cases of officers not selected earlier
as a result of which a few more officers were selected. The selections as finally made by the
board were accepted by the Commission. On the basis of the recommendations of the
Commission, the impugned list was published. Even After review Basu, Baig and Kaul were
not selected. Another noteworthy point here is that Naquishbund’s name was placed at the
top of the list of selected officers.
It must be noted that Naquishbund was also one of the candidates seeking to be selected to
the All India Forest Service. Though he did not sit in the selection board at the time his name
was considered for selection but admittedly he did sit in the board and participated in its
deliberations when the names of Basu, Baig and Kaul were considered for selection and was
also involved while preparing the list of selected candidates in order of preference, as
required by Regulation 5. However the list prepared by the selection board was not the last
word in the matter of selection in question. That list along with the records of the officers in
the concerned cadre selected as well as not selected had to be sent to the Ministry of Home
Affairs. The Ministry of Home Affairs had forwarded that list with its observations to the
Commission and the Commission had examined the records of all the officers afresh before
making its recommendation.

Aggrieved, The Gazetted Officers Association, Jammu and Kashmir along with the interested
parties brought a petition to the Court challenging the selections notified in the impugned
notification as being violative of Articles 14 and 16 of the Constitution and on the further
ground that the selections in question were made in contravention of the Principles of Natural
Justice.

3. Issues Involved:

 Whether the principle of natural justice applied to administrative proceedings

assuming that the present proceedings are administrative in nature?
 Whether there was a violation of such principles of natural justice in the present case?

4. Law Applied:

The Court while making this judgment took assistance of certain other landmark judgments
which are discussed as below :-

The Court observed that in In Re H.K (An Infant) the validity of the action taken by an
Immigration Officer came up for consideration. Lord Parker, C.J observed thus:
“I myself think that even if an immigration officer is not in a judicial or quasi-judicial
capacity, he must at any rate give the immigrant an opportunity of satisfying him of the
matters in the subsection, and for that purpose let the immigrant know what his immediate
impression is so that the immigrant can disabuse him. That is not, as I see it, a question of
acting or being required to act judicially, but of being required to act fairly.”

Also, in the case of State of Orissa v. Dr. (Miss) Binapani Dei. , Shah, J. speaking for the
Court, dealing with an enquiry made as regards the correct age of a government servant,
observed thus –

“We think that such an enquiry and decision were contrary to the basic concept of justice and
cannot have any value. It is true that the order is administrative in character, but even an
administrative order which involves civil consequences as already stated, must be made
consistently with the rules of natural justice after informing the first respondent of the case of
the State…Often times it is not easy to draw the line that demarcates administrative enquiries
from quasi-judicial enquiries. 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. An unjust decision in an
administrative enquiry may have more far reaching effect than a decision in a quasi-judicial
enquiry. ”

In this case, for the first time, without the assistance of any foreign judgement, the Supreme
Court had decided that Principles of Natural Justice were applicable not only to judicial and
quasi-judicial functions, but also to administrative functions. The present case has made the
position more clear.

In Suresh Koshy George v. The University of Kerala, the Court observed that the rules of
natural justice are not embodied rules. What particular rule of natural justice should apply to
a given case must be depend to a great extent on the facts and circumstances of that case, the
framework of the law under which the enquiry is held and the constitution of the tribunal or
body of persons appointed for that purpose. Whenever a complaint is made before a Court
that some principle of natural justice had been contravened the Court has to decide whether
the observance of that was necessary for just decisions on the facts of that case.

Hence, taking all the above decisions as well as some other English decisions into
consideration, the Court declared that Principles of Natural Justice are applicable to
Administrative functions also and struck down the selection process on the ground of
violation of principles of natural justice.
5. Law Applied:

A five judge bench of the Apex Court comprising of Hidyatullah, CJ and Grover, Shelat,
Bhargava and Hegde, JJ. through Hegde, J. held that the selections made by the selection
committee were in violation of principles of natural justice.

The Hon’ble Court found the power exercised by the Selection Board as an administrative
one and tested the validity of the selections on that basis. It held that the concept of rule of
law would lose its importance if the instrumentalities of the State are not charged with the
duty of discharging their functions in a fair and just manner. Also, it is a must to charge
administrative authorities with the duty of discharging their functions in a fair and just
manner in a Welfare State like India, where the jurisdiction of the administrative bodies is
increasing at a rapid rate. In the words of Hegde, J.-

“The requirement of acting judicially in essence is nothing but 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.”

It further observed that the dividing line between an administrative power and quasi-judicial
power is being gradually obliterated.

The Court held that the basic principle of nemo judex in causa sua was violated by appointing
Naquishbund as a member of the selection board. Though he did not participate in the
deliberations of the board when his name was being considered yet the very fact that he was a
member of the selection board and that too holding the post of the post of the Chairman had a
significant impact on the decision of the selection board. Also, he participated in the
deliberations when the claims of his rivals i.e. Basu, Baig and Kaul were considered. He was
also present when the list of selected candidates in order of preference was being made.
Hence, it is very clear that from the very inception of the selection process, at every stage of
his participation in the selection process, there was a conflict between his interest and duty.
Under such circumstances, the Court could not believe that Naquishbund could have been
unbiased.

Further the Court observed that the question is not whether Naquishbund was actually biased
or not. The real question is whether there is a reasonable ground for believing that he was
likely to have been biased. As discussed earlier in Manaklal’s case the Court had made it
clear that the test was not actual bias but a reasonable apprehension of bias. It held that it is
difficult to prove the state of mind. Therefore in deciding the question of bias ordinary course
of human conduct is taken into consideration. Owing to this, the Court observed that there
was a personal interest on part of Naquishbund to keep out his rivals in order to secure his
position without further challenge and so he cannot said to be impartial, fair and just while
making the selection.

6. Views – Observations – Comments:

What emerges from this case is that although the Courts are making distinctions between the
Quasi-Judicial and Administrative powers but at the same time there is one common element
of fair procedure in both the cases which can be referred to as the ‘duty to act fairly’. This
duty arises from the same general principles, as do the rules of natural justice.

In England, as discussed earlier the case of Ridge v. Baldwin has been characterized as the
“The Magna Carta of Natural Justice” as it gave a new orientation to the concept of quasi-
judicial with a view to facilitate the application of natural justice to administrative functions.
Similarly, the preceding pages show that the case of A. K Kraipak v. Union of India is a
landmark judgement in the development of administrative law in India and has strengthened
the rule of law in this country. Though the applicability of rules of natural justice to
administrative functions had already been made in Dr Binapani’s case, it had not gained as
much importance as it deserved. In the present case while extending the application of these
principles to administrative function as well, Hedge, J. observed that - “If the purpose of the
rules of natural justice is to prevent miscarriage of justice one fails to see why those rules
should be made inapplicable to administrative inquiries”

A mere perusal of the above given view shows that this case was successful in attributing the
due importance which lacked previously, and gave finality to the fact that rules of justice
applied to administrative functions too.

In the words of Krishna Iyer, J.- “Once we understand the soul of the rule as fairplay in action
– and it is so- we must hold that it extends to both the fields. After all administrative power in
a democratic set-up is not allergic to fairness in action and discretionary executive justice
cannot degenerate into unilateral injustice.”
The author agrees with such a proposition because many a times the impact of administrative
decision can be far greater than that of a judicial decision. As in the present case, the decision
made with bias and without the applicability of rules of justice would have adversely affected
the careers of the officers not selected. In such circumstances leaving the administrative
actions out of the clutches of rules of justice would undermine rule of law. Hence, in
conclusion it is observed that- “No authority can absolve itself from the liability to act in a
lawful manner.”