Law Notes: 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 nation’s 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, Dicey’s 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 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.
Dicey’s 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.
(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 beginning of administrative law in England under the force of circumstances. However, since then, things have changed rather demonstrably.
Dicey’s 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 government’s 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 Dicey’s 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 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 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 hasn’t 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 court’s 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 today’s 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.

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 occasion when there is sudden need of legislature action. The legislature can’t 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.

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 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 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.

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 man’s 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, 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 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 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 doesn’t by itself protect the applicant from discriminatory treatment.
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 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 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 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.
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 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 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 court’s 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 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 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)

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 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 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 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 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 agency’s 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 appellant’s 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.
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.
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 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 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 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.

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.
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 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 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 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 company’s 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 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 can’t 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 can’t 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 obligation owed by the person or authority to the affected party.

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Friday, January 26, 2007

Administrative Law